SEC Form DEFM14A filed by Signify Health Inc.

 

 

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

SIGNIFY HEALTH, 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.

 

 

 

Signify Health, Inc.

4055 Valley View Lane

Suite 700

Dallas, TX 75244

Dear Signify Health, Inc. Stockholder:

You are cordially invited to attend a virtual special meeting (including any adjournments or postponements thereof, the “Special Meeting”) of stockholders of Signify Health, Inc. (“Signify” or the “Company”) to be held virtually on October 31, 2022, at 9:00 a.m. Eastern Time. Signify stockholders will be able to virtually attend and vote at the Special Meeting via the internet at www.virtualshareholdermeeting.com/SGFY2022SM. You will not be able to attend the Special Meeting physically in person. For purposes of attendance at the Special Meeting, all references in the enclosed proxy statement to “present” shall mean virtually present at the Special Meeting.

At the Special Meeting, you will be asked to consider and vote on (i) a proposal to adopt the Agreement and Plan of Merger, dated September 2, 2022 (such agreement, as it may be amended, modified or supplemented from time to time, the “Merger Agreement”), by and among Signify, CVS Pharmacy, Inc. (“CVS”), and Noah Merger Sub, Inc., a wholly owned subsidiary of CVS (“Merger Subsidiary”), and (ii) a proposal to approve the adjournment of the Special Meeting to a later date or dates, if necessary or appropriate, including to solicit additional proxies to approve the proposal to adopt the Merger Agreement if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting (the “Adjournment Proposal”). Upon the terms and subject to the conditions of the Merger Agreement, Merger Subsidiary will merge with and into Signify, with Signify continuing as the surviving corporation and a wholly owned subsidiary of CVS (the “Merger”).

If the Merger is completed, you will be entitled to receive $30.50 in cash, without interest thereon, less any applicable withholding taxes, for each share of Class A Common Stock that you own (unless you have properly exercised your appraisal rights). We refer in this notice and in the enclosed proxy statement to the Class A Common Stock and the Class B Common Stock of Signify, collectively as the “Company Stock”.

Signify’s Board of Directors (the “Board of Directors”), for reasons described in the enclosed proxy statement, has unanimously among the directors voting: (i) determined that the Merger, the Merger Agreement, the other agreements and documents executed and delivered in connection with the Merger Agreement (collectively, the “Transaction Documents”) and the transactions contemplated thereby are advisable, fair to and in the best interests of Signify and the Signify Stockholders (as defined in the proxy statement); (ii) approved and declared it advisable to enter into the Merger Agreement; (iii) directed that the adoption of the Merger Agreement be submitted to a vote of the Signify Stockholders at the Special Meeting; and (iv) subject to the terms and conditions of the Merger Agreement, resolved to recommend that the Signify Stockholders approve the adoption of the Merger Agreement and approve the Merger on the terms and subject to the conditions set forth in the Merger Agreement. The Board of Directors, unanimously among the directors voting recommends, on behalf of Signify, that you vote: (1) “FOR” the adoption of the Merger Agreement; and (2) “FOR” the Adjournment Proposal.

The enclosed proxy statement provides detailed information about the Special Meeting, the Merger Agreement and the Merger. A copy of the Merger Agreement is attached as Annex A to the proxy statement.

On September 2, 2022, New Mountain (as defined in the proxy statement) entered into a voting agreement with Signify and CVS, pursuant to which New Mountain has agreed, among other things, to vote its shares of Company Stock in favor of the proposal to adopt the Merger Agreement and against any competing transaction so long as the Merger Agreement has not been terminated and the Board of Directors has not made an Adverse Recommendation Change (as defined in this proxy statement).

The proxy statement also describes the actions and determinations of the Board of Directors in connection with its evaluation of the Merger Agreement and the Merger. You should carefully read and consider the entire enclosed proxy statement and its annexes, including, but not limited to, the Merger Agreement, as they contain important information about, among other things, the Merger and how it affects you.

Whether or not you plan to attend the Special Meeting virtually, please sign, date and return, as promptly as possible, the enclosed proxy card in the accompanying prepaid reply envelope or grant your proxy electronically over the internet or by telephone (using the instructions provided in the enclosed proxy card). If you attend the Special Meeting and vote at the meeting your vote will revoke any proxy that you have previously submitted.

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 that you will receive from your bank, broker or other nominee. Your bank, broker or other nominee cannot vote on any of the proposals, including the proposal to adopt the Merger Agreement, without your instructions.

Your vote is very important, regardless of the number of shares that you own. We cannot complete the Merger unless the proposal to adopt the Merger Agreement is approved by the affirmative vote of the stockholders holding a majority of the voting power of the outstanding shares of Company Stock as of the close of business on September 26, 2022, which is the record date for the Special Meeting.

If you have any questions or need assistance voting your shares, please contact our information agent:

MacKenzie Partners, Inc.

1407 Broadway, 27^th Floor

New York, New York 10018

[email protected]

Call: (800) 322-2885

On behalf of the Board of Directors, I thank you for your support and appreciate your consideration of this matter.

 

Sincerely,

Kyle Armbrester Chief Executive Officer

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved the Merger, passed upon the merits or fairness of the Merger Agreement or the transactions contemplated thereby, including the proposed Merger, or passed upon the adequacy or accuracy of the information contained in the accompanying proxy statement. Any representation to the contrary is a criminal offense.

The accompanying proxy statement is dated September 30, 2022 and, together with the enclosed form of proxy card, is first being mailed on or about September 30, 2022.

 

Signify Health, Inc.

4055 Valley View Lane

Suite 700

Dallas, TX 75244

NOTICE OF SPECIAL MEETING OF STOCKHOLDERS

TO BE HELD ON OCTOBER 31, 2022

Notice is hereby given that a virtual special meeting of stockholders (including any adjournments or postponements thereof, the “Special Meeting”) of Signify Health, Inc., a Delaware corporation (“Signify”), to be held virtually on October 31, 2022, at 9:00 a.m. Eastern Time. Signify stockholders will be able to virtually attend and vote at the Special Meeting via the internet at www.virtualshareholdermeeting.com/SGFY2022SM. You will not be able to attend the Special Meeting physically in person. For purposes of attendance at the Special Meeting, all references in the enclosed proxy statement to “present” shall mean virtually present at the Special Meeting. The Special Meeting is being held for the following purposes:

1.    To consider and vote on the proposal to adopt the Agreement and Plan of Merger, dated September 2, 2022 (such agreement, as it may be amended, modified or supplemented from time to time, the “Merger Agreement”), by and among Signify, CVS Pharmacy, Inc. (“CVS”), and Noah Merger Sub, Inc., a wholly owned subsidiary of CVS (“Merger Subsidiary”). Upon the terms and subject to the conditions of the Merger Agreement, Merger Subsidiary will merge with and into Signify, with Signify continuing as the surviving corporation and a wholly owned subsidiary of CVS (the “Merger”); and

2.    To consider and vote on any proposal to adjourn the Special Meeting to a later date or dates, if necessary or appropriate, including to solicit additional proxies to approve the proposal to adopt the Merger Agreement if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting (the “Adjournment Proposal”).

Only stockholders of record as of the close of business on September 26, 2022, are entitled to notice of the Special Meeting and to vote at the Special Meeting or any adjournment, postponement or other delay thereof.

Signify’s Board of Directors (the “Board of Directors”), unanimously among the directors voting recommends, on behalf of Signify, that you vote: (1) “FOR” the adoption of the Merger Agreement; and (2) “FOR” the Adjournment Proposal.

All stockholders are invited to attend the Special Meeting virtually. Whether or not you plan to attend the Special Meeting virtually, please sign, date and return, as promptly as possible, the enclosed proxy card in the accompanying prepaid reply envelope or grant your proxy electronically over the internet or by telephone (using the instructions provided in the enclosed proxy card). If you attend the Special Meeting and vote virtually, your vote will revoke any proxy that you have previously submitted. 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 that you will receive from your bank, broker or other nominee. Your bank, broker or other nominee cannot vote on any of the proposals, including the proposal to adopt the Merger Agreement, without your instructions.

 

Kyle Armbrester Chief Executive Officer

Dated: September 30, 2022

Signify Health, Inc.

4055 Valley View Lane

Suite 700

Dallas, TX 75244

PROXY STATEMENT

FOR THE SPECIAL MEETING OF STOCKHOLDERS

TO BE HELD ON OCTOBER 31, 2022

IMPORTANT NOTICE REGARDING THE INTERNET AVAILABILITY OF PROXY MATERIALS FOR THE SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON OCTOBER 31, 2022

This proxy statement is available on the investor relations page of our website at https://investors.signifyhealth.com. We intend to mail these proxy materials on or about September 30, 2022 to all stockholders of record entitled to vote at the Special Meeting.

A complete list of the stockholders entitled to vote at the Special Meeting will be available for examination during regular business hours for the ten (10) days prior to the Special Meeting at our principal executive offices, located at 4055 Valley View Lane, Suite 700, Dallas, TX 75244. Stockholders may examine the list for any legally valid purpose related to the Special Meeting. If you would like to examine the list, please contact our Secretary to schedule an appointment by calling (972) 715-3800 or writing to the Secretary at the address above. This list also will be available during the Special Meeting at www.virtualshareholdermeeting.com/SGFY2022SM.

YOUR VOTE IS IMPORTANT

WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING VIRTUALLY, WE ENCOURAGE YOU TO SUBMIT YOUR PROXY AS PROMPTLY AS POSSIBLE: (1) BY TELEPHONE; (2) THROUGH THE INTERNET; OR (3) BY SIGNING AND DATING THE ENCLOSED PROXY CARD AND RETURNING IT IN THE POSTAGE-PAID ENVELOPE PROVIDED. You may revoke your proxy or change your vote at any time before it is voted at the Special Meeting.

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 that you will receive from your bank, broker or other nominee. Your broker or other agent cannot vote on any of the proposals, including the proposal to adopt the Merger Agreement, without your instructions.

If you are a stockholder of record, voting virtually at the Special Meeting will revoke any proxy that you previously submitted. If you hold your shares through a bank, broker or other nominee, you must obtain a “legal proxy” in order to vote virtually at the Special Meeting.

If you fail to (1) return your proxy card, (2) grant your proxy electronically over the internet or by telephone or (3) vote virtually at the Special Meeting, your shares will not be counted for purposes of determining whether a quorum is present at the Special Meeting and, if a quorum is present, will have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement, but will have no effect on the Adjournment Proposal (as defined in this proxy statement).

On September 2, 2022, New Mountain (as defined in the proxy statement) entered into a voting agreement with Signify and CVS, pursuant to which New Mountain has agreed, among other things, to vote its shares of Company Stock in favor of the proposal to adopt the Merger Agreement and against any competing transaction so long as the Merger Agreement has not been terminated and the Board of Directors has not made an Adverse Recommendation Change (as defined in this proxy statement).

You should carefully read and consider the entire accompanying proxy statement and its annexes, including, but not limited to, the Merger Agreement, along with all of the documents incorporated by reference into the accompanying proxy statement, as they contain important information about, among other things, the Merger and how it affects you. If you have any questions concerning the Merger Agreement, the Merger, the Special Meeting or the accompanying proxy statement, would like additional copies of the accompanying proxy statement or need help voting your shares of Class A Common Stock or Class B Common Stock of Signify (the “Company Stock”), please contact our information agent:

MacKenzie Partners, Inc.

1407 Broadway, 27^th Floor

New York, New York 10018

[email protected]

Call: (800) 322-2885

 

TABLE OF CONTENTS

 

SUMMARY			1
The Special Meeting			1
Date, Time, Place and Purpose of the Special Meeting			1
Record Date; Shares Entitled to Vote; Quorum			1
Vote Required; Abstentions and Broker Non-Votes			2
Stock Ownership and Interests of Certain Persons			3
The Merger			4
Parties Involved in the Merger			4
Effect of the Merger			4
Effect on Signify if the Merger is Not Completed			5
Merger Consideration			5
Recommendation of the Board of Directors			8
Opinion of Goldman Sachs & Co. LLC			8
Opinion of Deutsche Bank Securities Inc.			9
Interests of Signify’s Directors and Executive Officers in the Merger			9
Appraisal Rights			10
Material U.S. Federal Income Tax Consequences of the Merger			10
Regulatory Approvals Required for the Merger			11
Conduct of Business Pending the Merger			11
Conditions to the Closing of the Merger			12
Termination of the Merger Agreement			13
Legal Proceedings			13
QUESTIONS AND ANSWERS			14
FORWARD-LOOKING STATEMENTS			22
THE SPECIAL MEETING			23
Date, Time and Place			23
Purpose of the Special Meeting			23
Record Date; Shares Entitled to Vote; Quorum			23
Vote Required; Abstentions and Broker Non-Votes			24
Stock Ownership and Interests of Certain Persons			24
Voting of Proxies			25
Revocability of Proxies			25
Board of Directors’ Recommendation			26
Expenses of Information Agent			26
Anticipated Date of Completion of the Merger			26
Delisting and Deregistration of Class A Common Stock			26
Important Notice Regarding the Availability of Proxy Materials for the Special Meeting to be Held on October 31, 2022			26
Questions and Additional Information			27
THE MERGER			28
Parties Involved in the Merger			28
Effect of the Merger			28
Effect on Signify if the Merger is Not Completed			29
Merger Consideration			29
Background of the Merger			31
Recommendation of the Board of Directors and Reasons for the Merger			39
Opinion of Goldman Sachs & Co. LLC			43
Opinion of Deutsche Bank Securities Inc.			51
Certain Unaudited Prospective Financial Information			58
Interests of Signify’s Directors and Executive Officers in the Merger			61

Retention and Transaction Bonuses			68
Appraisal Rights			69
Accounting Treatment			76
Material U.S. Federal Income Tax Consequences of the Merger			76
Regulatory Approvals Required for the Merger			80
Legal Proceedings			80
PROPOSAL 1: ADOPTION OF THE MERGER AGREEMENT			82
Effects of the Merger; Certificate of Incorporation; Bylaws; Directors and Officers			82
Closing and Effective Time			83
Merger Consideration			83
Exchange and Payment Procedures			84
Withholding			85
Representations and Warranties			86
Conduct of Business Pending the Merger			89
Acquisition Proposals			92
Board of Directors’ Recommendation; Signify Adverse Recommendation Change			94
Indemnification and Insurance			96
Employee Benefits			96
Efforts to Close the Merger			98
Other Covenants			100
Company Stockholders Meeting			100
Transaction Litigation			100
Conditions to the Closing of the Merger			100
Termination of the Merger Agreement			102
Effect of Termination; Termination Fees			103
Specific Performance			104
Limitations of Liability; Costs and Expenses			104
Amendment and Waiver			105
Governing Law and Venue, Waiver of Jury Trial			105
Voting Agreement			105
Amendment to Tax Receivable Agreement and OpCo LLC Agreement			106
PROPOSAL 2: ADJOURNMENT OF THE SPECIAL MEETING			107
MARKET PRICES AND DIVIDEND DATA			108
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT			109
FUTURE STOCKHOLDER PROPOSALS			112
OTHER MATTERS			113
WHERE YOU CAN FIND MORE INFORMATION			114
MISCELLANEOUS			116
Annex A AGREEMENT AND PLAN OF MERGER			A-1
Annex B Opinion of Goldman Sachs & Co. LLC			B-1
Annex C Opinion of Deutsche Bank Securities Inc.			C-1
Annex D SECTION 262 of the General Corporate Law of Delaware			D-1

 

 

1

 

2

 

3

 

4

 

5

 

6

 

7

 

8

 

9

 

10

 

11

 

12

 

13

QUESTIONS AND ANSWERS

The following questions and answers address some commonly asked questions regarding the Merger, the Merger Agreement and the Special Meeting. These questions and answers may not address all questions that are important to you. You should carefully read and consider the more detailed information contained elsewhere in this proxy statement and the annexes to this proxy statement, including, but not limited to, the Merger Agreement, along with all of the documents we refer to in this proxy statement, as they contain important information about, among other things, the Merger and how it affects you. You may obtain the information incorporated by reference in this proxy statement without charge by following the instructions under the caption, “Where You Can Find More Information.”

 

Q:	Why am I receiving this proxy statement and proxy card or voting instruction form?

 

A:

You are receiving this proxy statement and proxy card or voting instruction form in connection with the solicitation of proxies by the Board of Directors for use at the Special Meeting because you have been identified as a holder of Company Stock as of the close of business on the Record Date for the Special Meeting. This proxy statement describes matters on which we urge you to vote and is intended to assist you in deciding how to vote your shares of Company Stock with respect to such matters.

 

Q:	When and where is the Special Meeting?

 

A:	The Special Meeting will be held virtually on October 31, 2022 at 9:00 a.m. Eastern Time at www.virtualshareholdermeeting.com/SGFY2022SM.

 

Q:	What am I being asked to vote on at the Special Meeting?

 

A:	You are being asked to consider and vote on:

 

•

a proposal to adopt the Merger Agreement pursuant to which Merger Subsidiary will merge with and into Signify, and Signify will become a wholly owned Subsidiary of CVS; and

 

•

a proposal to approve the Adjournment Proposal.

 

Q:	Who is entitled to vote at the Special Meeting?

 

A:

Signify Stockholders as of the Record Date are entitled to receive notice of, and to vote at, the Special Meeting. Each holder of Company Stock is entitled to cast one (1) vote on each matter properly brought before the Special Meeting for each share of Company Stock that such holder owned as of the close of business on the Record Date. If you are a beneficial owner, you will need to contact the broker, bank or other nominee who is the Signify Stockholder of record with respect to your shares to obtain your control number (as described below) prior to the Special Meeting.

 

Q:	May I attend the Special Meeting virtually and vote at the Special Meeting?

 

A:

Signify Stockholders of Record and Beneficial Owners. Signify Stockholders as of the Record Date are entitled to notice of the Special Meeting and to vote at the Special Meeting. If you are a Signify Stockholder of record, you do not need to do anything in advance to attend and/or vote your shares at the Special Meeting, but to attend the Special Meeting, Signify Stockholders of record will need to use their control number on their Notice of Internet Availability or proxy card to log into www.virtualshareholdermeeting.com/SGFY2022SM. Beneficial owners of Company Stock who do not have a control number may gain access to the meeting by logging into their brokerage firm’s website and selecting the stockholder communications mailbox to link through to the Special Meeting; instructions should also be provided on the voting instruction card provided by their broker, bank, or other nominee. We encourage you to access the Special Meeting before it begins. Online check-in will start approximately fifteen (15) minutes before the Special Meeting is scheduled to begin at 9:00 a.m. on October 31, 2022.

 

14

Each holder of record of Company Stock will be entitled to cast one (1) vote on each matter properly brought before the Special Meeting for each such share owned at the close of business on the Record Date.

Attending the Special Meeting as a Guest. Guests may enter the Special Meeting in “listen-only” mode by entering the Special Meeting at www.virtualshareholdermeeting.com/SGFY2022SM and entering the information requested in the “Guest Login” section. Guests will not have the ability to vote or ask questions at the Special Meeting.

 

Q:	What will I receive if the Merger is completed?

 

A:

Upon completion of the Merger, you will be entitled to receive the Merger Consideration of $30.50 in cash, without interest thereon and less any applicable withholding taxes, for each share of Class A Common Stock that you own immediately prior to the Effective Time, unless you are entitled to and have properly exercised and not withdrawn, failed to perfect or otherwise lost your appraisal rights under Section 262 of the DGCL. For example, if you own 100 shares of Class A Common Stock, you will receive $3,050.00 in cash in exchange for your shares of Class A Common Stock, less any applicable withholding taxes. You will not receive any shares of the capital stock in the Surviving Corporation. For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Merger Consideration”.

 

Q:	What will holders of Company Awards receive if the Merger is consummated?

 

A:	Pursuant to the Merger Agreement:

(i)    At the Effective Time, each Cash-Out Stock Option will be canceled and converted into the right of the holder thereof to receive, without interest, an amount in cash determined by multiplying (i) the excess of $30.50 (i.e., the Per Share Consideration) over the exercise price of such Cash-Out Stock Option by (ii) the number of shares of Class A Common Stock subject to such Cash-Out Stock Option as of immediately prior to the Effective Time;

(ii)    At the Effective Time, each Company Stock Option that is outstanding as of immediately prior to the Effective Time (whether vested or unvested) that contains solely performance-based conditions that remain unsatisfied after giving effect to all of the Transactions will be canceled for no consideration;

(iii)    At the Effective Time, each Rollover Stock Option will be converted into an option to acquire, on substantially the same terms and conditions as were applicable under such Rollover Stock Option, the number of shares of CVS Health Stock (rounded down to the nearest whole share), determined by multiplying (x) the number of shares of Class A Common Stock subject to such Rollover Stock Option immediately prior to the Effective Time by (y) the Exchange Ratio, at an exercise price per share of CVS Health Stock (rounded up to the nearest whole cent) equal to (A) the exercise price of such Rollover Stock Option divided by (B) the Exchange Ratio;

(iv)    At the Effective Time, each Cash-Out RSU will be canceled and converted into the right of the holder thereof to receive, without interest, an amount in cash determined by multiplying (x) $30.50 by (y) the number of shares of Class A Common Stock subject to the Cash-Out RSU as of immediately prior to the Effective Time;

(v)    At the Effective Time, each Rollover RSU will be converted into a restricted stock unit, subject to substantially the same terms and conditions as were applicable under such Rollover RSU, with respect to a number of shares of CVS Health Stock determined by multiplying the number of shares of Class A Common Stock subject to such Rollover RSU immediately prior to the Effective Time by the Exchange Ratio; and

(vi)    Immediately prior to the Effective Time, each Synthetic LLC Unit Award that is then outstanding will become fully vested (to the extent unvested) and will be canceled and converted into the right of the holder thereof to receive, without interest, an amount in cash determined by multiplying (i) the number of units subject to such Synthetic LLC Unit Award by (ii) $30.50.

 

15

To the extent applicable, payments with respect to Cash-Out Stock Options, Cash-Out RSUs and Synthetic LLC Units will be subject to tax withholdings and paid through our payroll system reasonably promptly following the Effective Time (but in no event later than seven (7) Business Days after the Effective Time).

For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Merger Consideration—Treatment of Company Awards.”

 

Q:	What will holders of OpCo Units and Aggregator Units receive if the Merger is consummated?

 

A:

If you are an OpCo Member, prior to the Effective Time, in accordance with the OpCo LLC Agreement, the Merger Agreement and the Signify Certificate of Incorporation, (i) Signify will require each OpCo Member (excluding Signify and the Company Holding Subsidiary (as defined below) but including, for the avoidance of doubt, Aggregator LLC) to effectuate a redemption of all of such OpCo Member’s OpCo Units, pursuant to which such OpCo Units will be exchanged for shares of Class A Common Stock on a one-for-one basis in accordance with the provisions of the OpCo LLC Agreement and the Merger Agreement and (ii) each share of Class B Common Stock will automatically be canceled immediately upon the consummation of such Redemption transactions, such that no shares of Class B Common Stock remain outstanding immediately prior to the Effective Time. In addition, following the exchange of OpCo Units held by Aggregator LLC for shares of Class A Common Stock, in accordance with the provisions of the OpCo LLC Agreement, as described above, each membership unit of Aggregator LLC (“Aggregator Unit”) will automatically be exchanged for such shares of Class A Common Stock held by Aggregator LLC on a one-for-one basis in accordance with the provisions of the OpCo LLC Agreement and the Aggregator LLC Agreement.

Following the redemption and exchange of OpCo Units and Aggregator Units described above, you will be the holder of Class A Common Stock, and will be entitled to receive, with respect to each share of Class A Common Stock, the Per Share Consideration of $30.50 in cash, without interest thereon.

 

Q:	When do you expect the Merger to be completed?

 

A:

We are working toward completing the Merger as quickly as possible. In order to complete the Merger, Signify is required to obtain Company Stockholder Approval described in this proxy statement, and the other closing conditions under the Merger Agreement must be satisfied or waived. Assuming timely satisfaction of necessary closing conditions, including obtaining the Company Stockholder Approval, Signify is currently targeting to consummate the Merger in the first half of 2023. Since the Merger is subject to a number of conditions, the exact timing of the Merger cannot be determined at this time.

 

Q:	What happens if the Merger is not completed?

 

A:

If the Merger Agreement is not adopted by Signify Stockholders or if the Merger is not completed for any other reason, Signify Stockholders will not receive any payment for their shares of Company Stock. Instead, Signify will remain an independent public company, our Class A Common Stock will continue to be listed and traded on the NYSE and registered under the Exchange Act, and Signify will continue to file periodic reports with the SEC. Under specified circumstances, Signify will be required to pay CVS the Company Termination Fee or may receive the Parent Termination Fee upon the termination of the Merger Agreement, as described in the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Effect of Termination; Termination Fees.”

 

Q:	What vote is required to adopt the Merger Agreement?

 

A:	The affirmative vote of Signify Stockholders holding a majority of the voting power of the outstanding shares of Company Stock that are issued and outstanding as of the Record Date is required to adopt the Merger Agreement.

 

16

If a quorum is present at the Special Meeting, the failure of any Signify Stockholder of record to: (i) submit a signed proxy card; (ii) grant a proxy over the internet or by telephone (using the instructions provided in the enclosed proxy card); or (iii) vote virtually at the Special Meeting will have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement. If you hold your shares in “street name” and a quorum is present at the Special Meeting, the failure to instruct your bank, broker or other nominee how to vote your shares will have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement. If a quorum is present at the Special Meeting, abstentions will have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement.

New Mountain, which collectively owns 96,733,441 shares of Class A Common Stock and 42,905,113 shares of Class B Common Stock representing approximately 54.2% of the total outstanding Class A Common Stock and 74.7% of the total outstanding Class B Common Stock, respectively, or approximately 59.2% of the total voting power of the Company Stock as of the Record Date, has entered into the Voting Agreement with Signify and CVS. Pursuant to the Voting Agreement, New Mountain has agreed, among other things, to vote its shares of Company Stock in favor of the proposal to adopt the Merger Agreement and against any competing transaction so long as the Merger Agreement has not been terminated and the Board of Directors has not made an Adverse Recommendation Change. For more information, see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—The Voting Agreement.” The Voting Agreement is expected to result in a majority of the outstanding shares of Company Stock voting in favor of the Merger Agreement, resulting in such proposal being adopted.

 

Q:	What is a “broker non-vote”?

 

A:

A “broker non-vote” results when banks, brokers and other nominees return a valid proxy voting upon a matter or matters for which the applicable rules provide discretionary authority but do not vote on a particular proposal because they do not have discretionary authority to vote on the matter and have not received specific voting instructions from the beneficial owner of such shares. Signify does not expect any broker non-votes at the Special Meeting because the rules applicable to banks, brokers and other nominees only provide brokers with discretionary authority to vote on proposals that are considered “routine,” whereas each of the proposals to be presented at the Special Meeting is considered “non-routine.” As a result, no broker will be permitted to vote your shares of Company Stock at the Special Meeting without receiving instructions. Failure to instruct your broker on how to vote your shares and failure to attend the Special Meeting and vote virtually will (i) result in your shares not being counted for purposes of determining whether a quorum is present at the Special Meeting and (ii) have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement.

 

Q:	What do I need to do now?

 

A:

You should carefully read and consider this entire proxy statement and the annexes to this proxy statement, including, but not limited to, the Merger Agreement, along with all of the documents that we refer to in this proxy statement, as they contain important information about, among other things, the Merger and how it affects you. Then sign, date and return, as promptly as possible, the enclosed proxy card in the accompanying reply envelope, or grant your proxy electronically over the internet or by telephone (using the instructions provided in the enclosed proxy card), so that your shares can be voted at the Special Meeting, unless you wish to seek appraisal pursuant to Section 262 of the DGCL. If you hold your shares in “street name,” please refer to the voting instruction forms provided by your bank, broker or other nominee to vote your shares.

 

Q:	May I exercise dissenters’ rights or rights of appraisal in connection with the Merger?

 

A:

Yes. In order to exercise your appraisal rights, you must follow the requirements set forth in Section 262 of the DGCL. Under the DGCL, Signify Stockholders of record who continuously hold shares of Company Stock through the Effective Time and do not vote in favor of adopting the Merger Agreement will have the

 

17

right to seek appraisal of the “fair value” of their shares as determined by the Delaware Court of Chancery if the Merger is completed. Appraisal rights will only be available to Signify Stockholders who properly deliver a written demand for an appraisal to Signify prior to the vote on the proposal to adopt the Merger Agreement at the Special Meeting and who comply with the procedures and requirements set forth in Section 262 of the DGCL, which are summarized in this proxy statement. The appraisal amount could be more than, the same as or less than the amount a Signify Stockholder will be entitled to receive under the terms of the Merger Agreement. A copy of Section 262 of the DGCL is included as Annex D to this proxy statement. For additional information, please see the section of this proxy statement captioned “The Merger—Appraisal Rights.”

 

Q:	Should I surrender my book-entry shares now?

 

A:

No. The Paying Agent (as defined in this proxy statement) will send each holder of record a letter of transmittal prior to the Closing and written instructions that explain how to exchange shares of Company Stock represented by such holder’s book-entry shares for Merger Consideration. For additional information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Exchange and Payment Procedures.”

 

Q:	What happens if I sell or otherwise transfer my shares of Company Stock after the Record Date but before the Special Meeting?

 

A:

The Record Date for the Special Meeting is earlier than the date of the Special Meeting and the date the Merger is expected to be completed. If you sell or transfer your shares of Company Stock after the Record Date but before the Special Meeting, unless special arrangements (such as provision of a proxy) are made between you and the person to whom you sell or otherwise transfer your shares and each of you notifies Signify in writing of such special arrangements, you will transfer the right to receive the Merger Consideration, if the Merger is completed, to the person to whom you sell or transfer your shares, but you will retain your right to vote those shares at the Special Meeting. You will also lose the ability to exercise appraisal rights in connection with the Merger with respect to the transferred shares. Even if you sell or otherwise transfer your shares of Company Stock after the Record Date, absent special arrangements, you will retain the right to vote those shares, and, we encourage you to sign, date and return the enclosed proxy card in the accompanying reply envelope or grant your proxy electronically over the internet or by telephone (using the instructions provided in the enclosed proxy card).

 

Q:	What is the difference between holding shares as a Signify Stockholder of record and as a beneficial owner?

 

A:

If your shares are registered directly in your name with our transfer agent, American Stock Transfer & Trust Company, LLC, you are considered, with respect to those shares, to be the “stockholder of record.” In this case, this proxy statement and your proxy card have been sent directly to you by Signify.

If your shares are held through a bank, broker or other nominee, you are considered the “beneficial owner” of shares of Company Stock held in “street name.” In that case, this proxy statement has been forwarded to you by your bank, broker or other nominee who is considered, with respect to those shares, to be the stockholder of record. As the beneficial owner, you have the right to direct your bank, broker or other nominee how to vote your shares by following their instructions for voting. You are also invited to attend the Special Meeting. However, because you are not the stockholder of record, you may not vote your shares virtually at the Special Meeting.

 

Q:	If my broker holds my shares in “street name,” will my broker vote my shares for me?

 

A:	No. Your bank, broker or other nominee is permitted to vote your shares on any proposal currently scheduled to be considered at the Special Meeting only if you instruct your bank, broker or other nominee

 

18

how to vote. You should follow the procedures provided by your bank, broker or other nominee to vote your shares. Without instructions, your shares will not be voted on such proposals, which will have the same effect as if you voted against adoption of the Merger Agreement, but will have no effect on the Adjournment Proposal.

 

Q:	How may I vote?

 

A:	If you are a Signify Stockholder of record (that is, if your shares of Company Stock are registered in your name with American Stock Transfer & Trust Company, LLC, our transfer agent), there are four (4) ways to vote:

 

•

by signing, dating and returning the enclosed proxy card in the accompanying prepaid reply envelope;

 

•

by visiting the internet at the address on your proxy card;

 

•

by calling toll-free (within the U.S. or Canada) at the phone number on your proxy card; or

 

•

by attending the Special Meeting virtually and voting at the meeting.

A control number, located on your proxy card, is designed to verify your identity and allow you to vote your shares of Company Stock, and to confirm that your voting instructions have been properly recorded when voting electronically over the internet or by telephone (using the instructions provided in the enclosed proxy card). Please be aware that, although there is no charge for voting your shares, if you vote electronically over the internet or by telephone, you may incur costs such as internet access and telephone charges for which you will be responsible.

Even if you plan to attend the Special Meeting virtually, you are strongly encouraged to vote your shares of Company Stock by proxy. If you are a record holder or if you obtain a “legal proxy” to vote shares that you beneficially own, you may still vote your shares of Company Stock virtually at the Special Meeting even if you have previously voted by proxy. If you are present at the Special Meeting and vote virtually, your previous vote by proxy will not be counted.

If your shares are held in “street name” through a bank, broker or other nominee, you may vote through your bank, broker or other nominee by completing and returning the voting form provided by your bank, broker or other nominee, or, if such a service is provided by your bank, broker or other nominee, electronically over the internet or by telephone. To vote over the internet or by telephone through your bank, broker or other nominee, you should follow the instructions on the voting form provided by your bank, broker or nominee.

 

Q:	May I change my vote after I have mailed my signed and dated proxy card?

 

A:

Stockholder of Record: Shares Registered in Your Name

Yes. You can revoke or change your proxy at any time before 5:00pm Eastern Time on the day before the Special Meeting. If you are the record holder of your shares, you may revoke or change your proxy in any one of the following ways:

 

•

You may submit another properly completed proxy card with a later date.

 

•

You may grant a subsequent proxy by telephone or through the internet.

 

•

You may send a timely written notice that you are revoking your proxy to the attention of General Counsel—Proxy at Signify Health, Inc., 4055 Valley View Lane, Suite 700, Dallas, TX 75244.

 

•

You may attend the Special Meeting virtually and vote online. Simply attending the meeting will not, by itself, revoke your proxy.

 

19

At the time the Special Meeting occurs, your most current proxy card or telephone or internet proxy is the one that is counted.

Beneficial Owner: Shares Registered in the Name of Broker or Bank

If your shares are held by your broker or bank as a nominee or agent, you should follow the instructions provided by your broker or bank.

 

Q:	Have any Signify Stockholders already agreed to approve the proposal to adopt the Merger Agreement?

 

A:

Yes. New Mountain, which collectively owns 96,733,441 shares of Class A Common Stock and 42,905,113 shares of Class B Common Stock representing approximately 54.2% of the total outstanding Class A Common Stock and 74.7% of the total outstanding Class B Common Stock, respectively, or approximately 59.2% of the total voting power of the Company Stock as of the Record Date, have entered into the Voting Agreement with Signify and CVS. Pursuant to the Voting Agreement, New Mountain has agreed, among other things, to vote its shares of Company Stock in favor of the proposal to adopt the Merger Agreement and against any competing transaction so long as the Merger Agreement has not been terminated and the Board of Directors has not made an Adverse Recommendation Change. For more information, see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—The Voting Agreement.” The Voting Agreement is expected to result in a majority of the outstanding shares of Company Stock voting in favor of the Merger Agreement, resulting in such proposal being adopted.

 

Q:	What is a proxy?

 

A:

A proxy is your legal designation of another person to vote your shares of Company 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 Company Stock is called a “proxy card.”

 

Q:	If a Signify Stockholder gives a proxy, how are the shares voted?

 

A:

The individuals named on the enclosed proxy card, or your proxies, will vote your shares in the way that you indicate. When completing the internet or telephone process or the proxy card, you may specify whether your shares 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.

If you properly sign your proxy card but do not mark the boxes showing how your shares should be voted on a matter, the shares represented by your properly signed proxy will be voted: (i) “FOR” the adoption of the Merger Agreement; and (ii) “FOR” the approval of the Adjournment Proposal.

 

Q:	What should I do if I receive more than one set of voting materials?

 

A:	Please sign, date and return (or grant your proxy electronically over the internet or by telephone using the instructions provided in the enclosed proxy card) each proxy card and voting instruction card that you receive.

You may receive more than one set of voting materials, including multiple copies of this proxy statement and multiple proxy cards or voting instruction cards. For example, if you hold your shares in more than one brokerage account, you will receive a separate voting instruction card for each brokerage account in which you hold shares. If you are a Signify Stockholder of record and your shares are registered in more than one name, you will receive more than one proxy card.

 

20

Q:	Where can I find the voting results of the Special Meeting?

 

A:

If available, Signify may announce preliminary voting results at the conclusion of the Special Meeting. Signify intends to publish final voting results in a Current Report on Form 8-K to be filed with the SEC following the Special Meeting. All reports that Signify files with the SEC are publicly available when filed. For more information, please see the section of this proxy statement captioned “Where You Can Find More Information.”

 

Q:	Who can help answer my questions?

 

A:	If you have any questions concerning the Merger, the Special Meeting or the accompanying proxy statement, would like additional copies of the accompanying proxy statement or need help voting your shares of Company Stock, please contact our information agent:

MacKenzie Partners, Inc.

1407 Broadway, 27^th Floor

New York, New York 10018

[email protected]

Call: (800) 322-2885

 

21

FORWARD-LOOKING STATEMENTS

This proxy statement and any documents referred to in this proxy statement contains certain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995 (the “Act”). Such forward-looking statements include statements relating to Signify’s strategy, goals, the value of, timing and prospects of the Merger. These forward-looking statements are based on Signify management’s beliefs and assumptions and on information currently available to management. Forward-looking statements include all statements that are not historical facts and may be identified by terms such as “believe,” “predict,” “target,” “contemplate,” “potential,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “could,” “will be,” “will continue,” “will likely result,” or similar expressions and the negatives of those terms. These forward-looking statements, which are subject to risks, uncertainties and assumptions about Signify, may include statements regarding Signify’s business operations, assets, valuations, financial conditions, results of operations, future plans, strategies, and expectations, and involve known and unknown risks, uncertainties, and other factors that may cause actual results, performance or achievements to be materially different from any future results, performance or achievements, expressed or implied by the forward-looking statements, including: (a) risks related to the satisfaction of the conditions to closing (including the failure to obtain necessary regulatory approvals and the requisite approval of the Signify Stockholders) in the anticipated timeframe or at all; (b) the occurrence of any event, change or other circumstances that could give rise to the termination of the Merger Agreement; (c) risks related to disruption of management’s attention from Signify’s ongoing business operations due to the proposed transaction; (d) disruption from the proposed transaction making it difficult to maintain business and operational relationships, including retaining and hiring key personnel and maintaining relationships with Signify’s customers, vendors and others with whom it does business (and the potential failure of Signify’s existing customers to continue or renew their contracts with Signify or increase in the number of customer cancellations); (e) the risk that any announcements related to the proposed transaction could have adverse effects on Signify’s stock price, credit ratings or operating results; (f) significant transaction costs; and (g) the outcome of any legal proceedings that may be instituted against CVS or against Signify related to the Merger Agreement or the proposed transaction. The risks and uncertainties may be amplified by the COVID-19 pandemic (and related variants), which has caused significant economic uncertainty. The extent to which the COVID-19 pandemic (and related variants) impacts Signify’s businesses, operations, and financial results, including the duration and magnitude of such effects, will depend on numerous factors, which are unpredictable, including, but not limited to, the duration and spread of the outbreak, its severity, the actions to contain the virus or treat its impact, and how quickly and to what extent normal economic and operating conditions can resume. The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties that affect Signify’s business described in the “Risk Factors” section of its Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and other documents filed by Signify from time to time with the SEC. These filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and Signify assumes no obligation to, and does not intend to, update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise, unless required by law. Signify gives no assurance that it will achieve its expectations.

Consequently, all of the forward-looking statements that we make in this proxy statement are qualified by the information contained or incorporated by reference herein, including: (i) the information contained under this caption; and (ii) the information contained under the caption “Risk Factors,” and information in our consolidated financial statements and notes thereto included in our Annual Report on Form 10-K for the period ended December 31, 2021 and elsewhere in our most recent filings with the SEC, including our Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, Quarterly Report on Form 10-Q for the quarter ended June 30, 2022 and any subsequent reports on Form 10-K, Form 10-Q or Form 8-K filed with the SEC from time to time and available at www.sec.gov. No assurance can be given that these are all of the factors that could cause actual results to vary materially from the forward-looking statements.

 

22

THE SPECIAL MEETING

The enclosed proxy is solicited on behalf of the Board of Directors for use at the Special Meeting.

Date, Time and Place

We will hold the Special Meeting virtually on October 31, 2022 at 9:00 a.m. Eastern Time at www.virtualshareholdermeeting.com/SGFY2022SM and, if applicable, at any adjournment or postponement thereof.

Purpose of the Special Meeting

At the Special Meeting, we will ask Signify Stockholders to vote on proposals to: (i) adopt the Merger Agreement; and (ii) approve the Adjournment Proposal.

We do not expect that any matters other than the proposals set forth above will be brought before the Special Meeting, and only matters specified in the notice of the meeting may be acted upon at the Special Meeting.

On September 2, 2022, New Mountain entered into a voting agreement with Signify and CVS, pursuant to which New Mountain has agreed, among other things, to vote its shares of Company Stock in favor of the proposal to adopt the Merger Agreement and against any competing transaction so long as the Merger Agreement has not been terminated and the Board of Directors has not made an Adverse Recommendation Change.

Signify Stockholders must approve the proposal to adopt the Merger Agreement in order for the Merger to be consummated. If Signify Stockholders fail to approve the proposal to adopt the Merger Agreement, the Merger will not be consummated. A copy of the Merger Agreement is attached as Annex A to this proxy statement, which we urge you to read carefully in its entirety.

Record Date; Shares Entitled to Vote; Quorum

Only Signify Stockholders of record as of the Record Date are entitled to notice of the Special Meeting and to vote at the Special Meeting. A list of Signify Stockholders entitled to vote at the Special Meeting will be available at our principal executive offices located at 4055 Valley View Lane, Suite 700, Dallas, TX 75244, during regular business hours for a period of no less than ten (10) days before the Special Meeting and will be available electronically at the Special Meeting.

The holders of a majority of the voting power of all outstanding shares of Company Stock entitled to vote thereat, present virtually or represented by proxy, will constitute a quorum at the Special Meeting. As of the Record Date, there were 178,330,908 shares of Class A Common Stock outstanding and entitled to vote at the Special Meeting and 57,421,276 shares of Class B Common Stock outstanding and entitled to vote at the Special Meeting, meaning that 117,876,093 shares of Company Stock must be represented virtually or by proxy at the Special Meeting to have a quorum. In the event that a quorum is not present at the Special Meeting, it is expected that the meeting will be adjourned to solicit additional proxies to approve the proposal to adopt the Merger Agreement.

Shares of Class B Common Stock issued to a Management Member (as defined in the OpCo LLC Agreement) that holds membership interests of Cure Aggregator, LLC that are unvested do not have any voting rights.

If you fail to (1) return your proxy card, (2) grant your proxy electronically over the internet or by telephone or (3) vote virtually at the Special Meeting, your shares will not be counted for purposes of determining whether a quorum is present at the Special Meeting and, if a quorum is present, will have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement

 

23

Vote Required; Abstentions and Broker Non-Votes

The affirmative vote of the Signify Stockholders holding a majority of the voting power of the outstanding shares of Company Stock as of the Record Date is required to adopt the Merger Agreement. As of the Record Date, 117,876,093 shares constitute a majority of the outstanding shares of Company Stock. Adoption of the Merger Agreement by Signify Stockholders is a condition to the Closing.

Approval of the Adjournment Proposal to adjourn the Special Meeting, whether or not a quorum is present, requires the affirmative vote of the Signify Stockholders holding a majority of the voting power of the outstanding shares of Company Stock present virtually or represented by proxy and entitled to vote at the Special Meeting and entitled to vote on the subject matter. An abstention represents a Signify Stockholder’s affirmative choice to decline to vote on a proposal. If a Signify Stockholder abstains from voting, that abstention will have the same effect as if the Signify Stockholder voted “AGAINST” the proposal to adopt the Merger Agreement and “AGAINST” the Adjournment Proposal but will be used to determine whether a quorum is present at the Special Meeting. As a result, an abstention of any of the aforementioned proposals will be counted for purposes of determining the presence of a quorum but will count as a vote “AGAINST” the proposal to adopt the Merger Agreement and will count as a vote “AGAINST” the Adjournment Proposal.

Each “broker non-vote” will also count as a vote “AGAINST” the proposal to adopt the Merger Agreement, but, assuming a quorum is present, will have no effect on the Adjournment Proposal. A “broker non-vote” results when banks, brokers and other nominees return a valid proxy voting upon a matter or matters for which the applicable rules provide discretionary authority but do not vote on a particular proposal because they do not have discretionary authority to vote on the matter and have not received specific voting instructions from the beneficial owner of such shares. Signify does not expect any broker non-votes at the Special Meeting because the rules applicable to banks, brokers and other nominees only provide brokers with discretionary authority to vote on proposals that are considered “routine,” whereas each of the proposals to be presented at the Special Meeting is considered “non-routine.” As a result, no broker will be permitted to vote your shares of Company Stock at the Special Meeting without receiving instructions. Failure to instruct your broker on how to vote your shares will have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement.

Stock Ownership and Interests of Certain Persons

Shares Held by Signify’s Directors and Executive Officers

As of the Record Date, our directors and executive officers beneficially owned and were entitled to vote, in the aggregate, 502,830 shares of Class A Common Stock and 5,787,313 shares of Class B Common Stock, representing approximately 2.7% of the shares of Company Stock outstanding on the Record Date (and, as described in more detail in the section of this proxy statement captioned “Security Ownership of Certain Beneficial Owners and Management”, approximately 2.9% of the shares of Company Stock outstanding when taking into account shares of Company Stock that are issuable (or, with respect to Company Stock Options, that will become exercisable) pursuant to Company Awards and Aggregator Units within sixty (60) days of the Record Date held, in the aggregate, by our directors and executive officers).

Our directors and executive officers have informed us that they currently intend to vote all of their respective shares of Company Stock (i) “FOR” the adoption of the Merger Agreement, and (ii) “FOR” the approval of the Adjournment Proposal.

Shares Held by New Mountain

New Mountain, which collectively owns 96,733,441 shares of Class A Common Stock and 42,905,113 shares of Class B Common Stock representing approximately 54.2% of the total outstanding Class A Common Stock and 74.7% of the total outstanding Class B Common Stock, respectively, or approximately 59.2% of the total voting power of the Company Stock as of the Record Date, has entered into the Voting Agreement with Signify and CVS. Pursuant to the Voting Agreement, New Mountain has agreed, among other things, to vote its

 

24

shares of Company Stock in favor of the proposal to adopt the Merger Agreement and against any competing transaction so long as the Merger Agreement has not been terminated and the Board of Directors has not made an Adverse Recommendation Change. For more information, see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—The Voting Agreement.”

Voting of Proxies

If, at the close of business on the Record Date, your shares are registered in your name with our transfer agent, American Stock Transfer & Trust Company, LLC, on the Record Date, you may cause your shares to be voted by returning a signed and dated proxy card in the accompanying prepaid envelope, or you may vote virtually at the Special Meeting. Additionally, you may grant a proxy electronically over the internet or by telephone (using the instructions provided in the enclosed proxy card). You must have the enclosed proxy card available, and follow the instructions on the proxy card, in order to grant a proxy electronically over the internet or by telephone. Based on your proxy card or internet and telephone proxies, the proxy holders will vote your shares according to your directions.

If you plan to attend the Special Meeting and wish to vote virtually, you will need to enter the 16-digit Control Number found next to the label “Control Number” on your proxy card voting instruction form, or in the email sending you the proxy statement. If you attend the Special Meeting, and vote virtually, your vote will revoke any previously submitted proxy. If your shares are registered in your name, you are encouraged to vote by proxy even if you plan to attend the Special Meeting virtually.

Voting instructions are included on your proxy card. All shares represented by properly signed and dated proxies received in time for the Special Meeting will be voted at the Special Meeting in accordance with the instructions of the Signify Stockholder. Properly signed and dated proxies that do not contain voting instructions will be voted: (i) “FOR” the adoption of the Merger Agreement; and (ii) “FOR” the approval of the Adjournment Proposal.

If, at the close of business on the Record Date, your shares are held in “street name” through a bank, broker or other nominee, you may vote through your bank, broker or other nominee by completing and returning the voting form provided by your bank, broker or other nominee or attending the Special Meeting and voting virtually with a “legal proxy” from your bank, broker or other nominee. If such a service is provided, you may vote over the internet or telephone through your bank, broker or other nominee by following the instructions on the voting form provided by your bank, broker or other nominee. If you do not return your bank’s, broker’s or other nominee’s voting form, do not vote via the internet or telephone through your bank, broker or other nominee, if possible, or do not attend the Special Meeting and vote virtually with a “legal proxy” from your bank, broker or other nominee, it will have the same effect as if you voted “AGAINST” the proposal to adopt the Merger Agreement, but will have no effect on the Adjournment Proposal.

Revocability of Proxies

Stockholder of Record: Shares Registered in Your Name

If you are a Signify Stockholder of record entitled to vote at the Special Meeting, you can revoke or change your proxy at any time before 5:00 p.m. ET on the day before the day on which the Special Meeting will be held. If you are the record holder of your shares, you may revoke or change your proxy in any one of the following ways:

 

•

You may submit another properly completed proxy card with a later date.

 

•

You may grant a subsequent proxy by telephone or through the internet.

 

•

You may send a timely written notice that you are revoking your proxy to the attention of General Counsel—Proxy at Signify Health, Inc., 4055 Valley View Lane, Suite 700, Dallas, TX 75244.

 

25

•

You may attend the Special Meeting virtually and vote online. Simply attending the meeting will not, by itself, revoke your proxy.

At the time the Company Stockholders Meeting occurs, most current proxy card or telephone or internet proxy is the one that is counted.

Beneficial Owner: Shares Registered in the Name of Broker or Bank

If your shares are held by your broker or bank as a nominee or agent, you should follow the instructions provided by your broker or bank.

Board of Directors’ Recommendation

After careful consideration, on September 2, 2022, the Board of Directors, unanimously among the directors voting, (i) determined that the Merger and the Transactions are advisable, fair to and in the best interests of Signify and the Signify Stockholders, (ii) approved and declared it advisable to enter into the Merger Agreement, (iii) directed that the adoption of the Merger Agreement be submitted to a vote of the Signify Stockholders at the Special Meeting and (iv) subject to the terms and conditions of the Merger Agreement (including Section 6.02 thereof), resolved to recommend that the Signify Stockholders approve the adoption of the Merger Agreement and the Transactions (including the Merger on the terms and subject to the conditions set forth in the Merger Agreement).

Accordingly, the Board of Directors, unanimously among the directors voting, recommends, on behalf of Signify, that you vote: (i) “FOR” the adoption of the Merger Agreement; and (ii) “FOR” the approval of the Adjournment Proposal.

Expenses of Information Agent

The expense of preparing, printing and mailing materials related to the Special Meeting is being borne by Signify. Signify has retained MacKenzie Partners, Inc. as information agent at a cost of approximately $5,000 plus expenses.

Anticipated Date of Completion of the Merger

Assuming timely satisfaction of necessary closing conditions, including obtaining the Company Stockholder Approval, Signify is currently targeting to consummate the Merger in the first half of 2023. Since the Merger is subject to a number of conditions, the exact timing of the Merger cannot be determined at this time.

Delisting and Deregistration of Class A Common Stock

If the Merger is completed, the shares of the Class A Common Stock will be delisted from the NYSE and deregistered under the Exchange Act, and shares of the Class A Common Stock will no longer be publicly traded. As such, Signify will no longer file periodic reports with the SEC on account of the Class A Common Stock.

Important Notice Regarding the Availability of Proxy Materials for the Special Meeting to be Held on October 31, 2022

The proxy statement is available on the investor relations page of our website at https://investors.signifyhealth.com.

 

26

Questions and Additional Information

If you have any questions concerning the Merger, the Special Meeting or the accompanying proxy statement, would like additional copies of the accompanying proxy statement or need help voting your shares of Company Stock, please contact our information agent:

MacKenzie Partners, Inc.

1407 Broadway, 27^th Floor

New York, New York 10018

[email protected]

Call: (800) 322-2885

 

27

THE MERGER

This description of the proposed Merger is qualified in its entirety by reference to the Merger Agreement, which is attached to this proxy statement as Annex A and incorporated into this proxy statement by reference. You should carefully read and consider the entire Merger Agreement, which is the legal document that governs the Merger, because this document contains important information about the Merger and how it affects you.

Parties Involved in the Merger

Signify Health, Inc.

Signify is a leading healthcare platform that leverages advanced analytics, technology and nationwide healthcare provider networks to create and power value-based payment programs. Signify’s mission is to transform how care is paid for and delivered so that people can enjoy more healthy, happy days at home. Signify’s customers include health plans, governments, employers, health systems and physician groups. Signify’s Class A Common Stock is listed on the NYSE under the symbol “SGFY”. Signify’s principal executive offices are located at 4055 Valley View Lane, Suite 700, Dallas, TX 75244 and its telephone number is (972) 715-3800.

CVS Pharmacy, Inc.

CVS is a wholly-owned subsidiary of CVS Health Corporation (“CVS Health”), a leading health solutions company with more than 9,000 retail locations, more than 1,100 walk-in medical clinics, a leading pharmacy benefits manager with over 110 million plan members with expanding specialty pharmacy solutions and a dedicated senior pharmacy care business serving more than one million patients per year. CVS Health also serves an estimated 35 million people through traditional, voluntary and consumer-directed health insurance products and related services, including expanding Medicare Advantage offerings and a leading standalone Medicare Part D prescription drug plan. CVS Health believes its innovative health care model increases access to quality care, delivers better health outcomes and lowers overall health care costs. CVS Health’s common stock is listed on the NYSE under the symbol “CVS”, its principal executive offices are located at One CVS Drive, Woonsocket, RI 02895, and its telephone number is (401) 765-1500.

Noah Merger Sub, Inc.

Merger Subsidiary is a Delaware corporation and a wholly-owned subsidiary of CVS and was formed on September 1, 2022, solely for the purpose of engaging in the transactions contemplated by the Merger Agreement and the Transaction Documents. Merger Subsidiary has not engaged in any business activities other than in connection with the Transactions. Upon the completion of the Merger, Merger Subsidiary will cease to exist with Signify continuing as the Surviving Corporation. The registered office of Merger Subsidiary is located at c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801.

Effect of the Merger

On the terms and subject to the satisfaction or waiver of the conditions set forth in the Merger Agreement, and in accordance with DGCL, Merger Subsidiary will be merged with and into Signify, with Merger Subsidiary ceasing to exist and Signify continuing as the Surviving Corporation. As a result of the Merger, Signify will become a wholly-owned Subsidiary of CVS, and the Class A Common Stock will no longer be publicly traded and will be delisted from NYSE. In addition, the Class A Common Stock will be deregistered under the Exchange Act, and Signify will no longer file periodic reports with the SEC. If the Merger is completed, you will not own any shares of the capital stock of the Surviving Corporation.

The Effective Time will occur upon the filing of a duly executed certificate of merger with the Secretary of State of the State of Delaware (or at such later time as may be specified in the certificate of merger).

 

28

Effect on Signify if the Merger is Not Completed

If the Merger Agreement is not adopted by Signify Stockholders, or if the Merger is not completed for any reason:

 

(i)

the Signify Stockholders will not be entitled to, nor will they receive, any payment for their respective shares of Company Stock pursuant to the Merger Agreement;

 

(ii)

(A) Signify will remain an independent public company, (B) Signify’s Class A Common Stock will continue to be listed and traded on the NYSE and registered under the Exchange Act, and (C) Signify will continue to file periodic reports with the SEC;

 

(iii)

Signify anticipates that (A) management will operate the business in a manner similar to that in which it is being operated today and (B) Signify Stockholders will be subject to similar types of risks and uncertainties as those to which they are currently subject, including, but not limited to, risks and uncertainties with respect Signify’s business, prospects and results of operations, as such may be affected by, among other things, the industry in which Signify operates and economic conditions;

 

(iv)

the price of Signify’s Class A Common Stock may decline significantly, and if that were to occur, it is uncertain when, if ever, the price of Signify’s Class A Common Stock will return to the price at which it trades as of the date of this proxy statement;

 

(v)

the Board of Directors will continue to evaluate and review Signify’s business operations, strategic direction and capitalization, among other things, and will make such changes as are deemed appropriate (irrespective of these efforts, it is possible that no other transaction acceptable to the Board of Directors will be offered or that Signify’s business, prospects and results of operations will be adversely impacted); and

 

(vi)

under certain specified conditions, Signify may be required to pay CVS the Company Termination Fee or CVS may be required to pay Signify the Parent Termination Fee. For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Effect of Termination; Termination Fees.”

Merger Consideration

Common Stock

As a result of the Merger, at the Effective Time, each share of Class A Common Stock (other than (i) Class A Common Stock owned by Signify, CVS or Merger Subsidiary or any of their respective Subsidiaries and (ii) any shares of Company Stock owned by stockholders who properly exercise appraisal rights under the DGCL), including each share of Class A Common Stock resulting from the Redemption, will be canceled and converted into the right to receive the Per Share Consideration.

After the Merger is completed, you will have the right to receive the Per Share Consideration in respect of each share of Class A Common Stock that you own (less any applicable withholding taxes), but you will no longer have any rights as a Signify Stockholder (except that Signify Stockholders who properly exercise, and do not withdraw, their appraisal rights will have a right to receive payment of the “fair value” of their shares as determined pursuant to an appraisal proceeding, as contemplated by DGCL). For more information, please see the section of this proxy statement captioned “The Merger—Appraisal Rights.”

Treatment of OpCo Units and Aggregator Units

Pursuant to the Merger Agreement, immediately prior to the Effective Time, in accordance with the OpCo LLC Agreement, the Merger Agreement and the Signify Certificate of Incorporation, (i) Signify will require each OpCo Member (excluding Signify and the Delaware corporation to be formed as a wholly-owned Subsidiary of Signify prior to the Closing (the “Company Holding Subsidiary”), but including Cure Aggregator, LLC) to

 

29

effectuate a redemption of all of such OpCo Member’s OpCo Units, pursuant to which such OpCo Units will be exchanged for shares of Class A Common Stock on a one-for-one basis in accordance with the provisions of the OpCo LLC Agreement and the Merger Agreement and (ii) each share of Class B Common Stock will automatically be canceled immediately upon the consummation of such redemptions, such that no shares of Class B Common Stock will remain outstanding immediately prior to the Effective Time.

Following the exchange of OpCo Units held by Aggregator LLC for shares of Class A Common Stock, in accordance with the provisions of the OpCo LLC Agreement, as described above, each Aggregator Unit will automatically be exchanged for such shares of Class A Common Stock held by Aggregator LLC on a one-for-one basis in accordance with the provisions of the OpCo LLC Agreement and the Aggregator LLC Agreement.

Treatment of Company Awards

Pursuant to the Merger Agreement:

 

•

At the Effective Time, each Cash-Out Stock Option will be canceled and converted into the right of the holder thereof to receive, without interest, an amount in cash determined by multiplying (i) the excess of $30.50 (i.e., the Per Share Consideration) over the exercise price of such Cash-Out Stock Option by (ii) the number of shares of Class A Common Stock subject to such Cash-Out Stock Option as of immediately prior to the Effective Time;

 

•

At the Effective Time, each Company Stock Option that is outstanding as of immediately prior to the Effective Time (whether vested or unvested) that contains solely performance-based conditions that remain unsatisfied after giving effect to all of the Transactions will be canceled for no consideration;

 

•

At the Effective Time, each Rollover Stock Option will be converted into an option to acquire, on substantially the same terms and conditions as were applicable under such Rollover Stock Option, the number of shares of CVS Health Stock (rounded down to the nearest whole share), determined by multiplying (x) the number of shares of Class A Common Stock subject to such Rollover Stock Option immediately prior to the Effective Time by (y) the Exchange Ratio, at an exercise price per share of CVS Health Stock (rounded up to the nearest whole cent) equal to (A) the exercise price per share of Class A Common Stock subject to such Rollover Stock Option divided by (B) the Exchange Ratio;

 

•

At the Effective Time, each Cash-Out RSU will be canceled and converted into the right of the holder thereof to receive, without interest, an amount in cash determined by multiplying (x) $30.50 by (y) the number of shares of Class A Common Stock subject to the Cash-Out RSU as of immediately prior to the Effective Time;

 

•

At the Effective Time, each Rollover RSU will be converted into a restricted stock unit, subject to substantially the same terms and conditions as were applicable under such Rollover RSU, with respect to a number of shares of CVS Health Stock determined by multiplying the number of shares of Class A Common Stock subject to such Rollover RSU immediately prior to the Effective Time by the Exchange Ratio; and

 

•

Immediately prior to the Effective Time, each Synthetic LLC Unit Award that is then outstanding will become fully vested (to the extent unvested) and will be canceled and converted into the right of the holder thereof to receive, without interest, an amount in cash determined by multiplying (i) the number of units subject to such Synthetic LLC Unit Award by (ii) $30.50.

CVS has agreed in the Merger Agreement to use reasonable best efforts to cause CVS Health Stock issuable upon the settlement of Rollover RSUs and the exercise of Rollover Stock Options to be registered with the SEC on Form S-8 as promptly as practicable (but within ten (10) Business Days) following the Effective Time.

For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Merger Consideration—Treatment of Company Awards.”

 

30

Background of the Merger

Since Signify’s initial public offering of its Class A Common Stock on the NYSE in February 2021, the Board of Directors, together with senior management, has regularly reviewed and assessed, and engaged with Signify’s stockholders regarding, Signify’s strategic direction, financial performance and business plans with a view towards strengthening Signify’s business and identifying potential opportunities to increase stockholder value, taking into account financial, industry, competitive and other considerations. As part of this process, from time to time, the Board of Directors and senior management have reviewed potential strategic alternatives available to Signify, including strategic acquisitions, in order to enhance the value of Signify’s business and operations. Among the meetings held with potential strategic transaction partners was an in-person introductory meeting with representatives of CVS Health, an existing customer of Signify. The introductory meeting took place at the offices of New Mountain on June 7, 2022 and included Mr. Kyle Armbrester, chief executive officer of Signify, Mr. Matthew Holt, the chairman of the Board of Directors and a Managing Director of New Mountain, Mr. Kyle Peterson, a member of the Board of Directors and a Managing Director of New Mountain, Mr. Shawn Guertin, the Chief Financial Officer of CVS Health, Dr. Alan Lotvin, executive vice president of CVS Health and president of CVS Caremark and Mr. Thomas Cowhey, senior vice president of CVS Health. At this meeting, the representatives of CVS Health asked questions about Signify’s business strategy and the parties discussed how the two companies might expand their commercial relationship. On June 13, 2022, Mr. Guertin sent Messrs. Holt and Peterson an email thanking them for the meeting and noting that he would be in touch in the near term to discuss possible next steps for expanding the parties’ relationship.

On June 14, 2022, a representative of a financial sponsor, which we refer to as “Party A,” sent Mr. Holt an unsolicited, non-binding written proposal to acquire 100% of Signify’s outstanding equity interests for $20.00 per share in cash (which we refer to as the “Initial Party A Proposal”). The Initial Party A Proposal was subject to, among other things, Party A’s due diligence and indicated that the consideration payable would be funded with a combination of debt and equity capital. The closing price of Signify’s Class A Common Stock on June 14, 2022 was $11.96 per share. Following receipt of the Initial Party A Proposal, Mr. Holt called a meeting of the Board of Directors, to be held on June 20, 2022.

On June 16, 2022, members of Signify’s senior management met with representatives of Goldman Sachs to review the Initial Party A Proposal and to discuss next steps, process, and timeline for a potential process to explore, review and evaluate a range of strategic alternatives available to Signify, including a potential sale of Signify, among other options, in anticipation of the upcoming meeting of the Board of Directors.

On June 20, 2022, the Board of Directors convened a meeting in-person and via videoconference with members of senior management and representatives of New Mountain, Goldman Sachs and Ropes & Gray LLP, Signify’s legal advisor (which we refer to as “Ropes & Gray”) attending. Representatives of Goldman Sachs reviewed the Initial Party A Proposal with the Board of Directors and discussed with the Board of Directors potential responses in response to the Initial Party A Proposal, specifically (i) rejecting the Initial Party A Proposal without further comment, (ii) rejecting the Initial Party A Proposal while providing context for such rejection, (iii) engaging with Party A on a limited basis and (iv) fully engaging with Party A. Representatives of Goldman Sachs also discussed with the Board of Directors that Signify could simultaneously engage with other potentially interested strategic parties and financial sponsors. Representatives of Ropes & Gray next reviewed the fiduciary duties of the Board of Directors under Delaware law. Following discussion, the Board of Directors determined that it was in the best interests of Signify and its stockholders to engage with Party A on a limited basis and to simultaneously initiate an exploratory process to determine whether other strategic companies or financial sponsors might also have interest in a potential strategic transaction involving Signify. In furtherance of that process, the Board of Directors authorized and directed Goldman Sachs and Signify’s management team to engage with the potentially interested parties discussed in the meeting as candidates for initial outreach as well as any additional candidates that Signify management and Goldman Sachs might identify as potentially having a strategic interest in Signify and the financial resources to complete an acquisition of Signify.

 

 

31

Following the June 20 Board of Directors meeting, Goldman Sachs contacted fifteen parties, of which eight were financial sponsors, including Party A and “Party B,” and seven were strategic parties, including CVS Health, “Party C” and “Party D.” Signify prepared a form non-disclosure agreement, which contained a twelve-month standstill provision with customary exclusions, including a provision that terminated the standstill upon Signify’s entry into or public announcement of certain acquisition transactions and a two-year employee non-solicit provision, to be shared with each party. Signify also began to populate a comprehensive virtual data room (which we refer to as the “Data Room”).

Between the June 20 meeting of the Board of Directors and July 26, 2022, Signify negotiated and executed non-disclosure agreements with twelve of the fifteen parties contacted by representatives of Goldman Sachs, of which seven were financial sponsors, including Party A and Party B, and five were strategic parties, including CVS Health, Party C and Party D. All twelve of the negotiated non-disclosure agreements included, among other things, an employee non-solicit provision ranging from twelve to eighteen months and eleven of the twelve non-disclosure agreements included a twelve-month standstill provision. The standstill provisions included customary exclusions, including a provision that terminated the standstill upon Signify’s entry into or public announcement of certain acquisition transactions, such that no party that entered into a non-disclosure agreement with Signify currently is restricted from making a proposal to acquire Signify.

During the period from the June 20 meeting of the Board of Directors through July 11, 2022, representatives of Goldman Sachs and Deutsche Bank Securities Inc. (which we refer to as “Deutsche Bank” and, together with Goldman Sachs, the “financial advisors”) and other representatives of Signify had various introductory discussions regarding Signify with the interested parties who had executed non-disclosure agreements. In particular, on June 27, 2022, Mr. Guertin called Mr. Holt to discuss CVS Health’s interest in a potential strategic transaction between CVS Health and Signify.

On June 26, 2022, representatives of Signify contacted representatives of Deutsche Bank to involve Deutsche Bank as a potential financial advisor to Signify in connection with any potential strategic transaction involving Signify.

Between June 29, 2022 and July 11, 2022, the date of the first meeting between members of Signify’s management team and representatives of the twelve parties who had executed non-disclosure agreements, Deutsche Bank and Signify’s management team convened a series of meetings in-person at Deutsche Bank’s offices and via videoconference to review Signify’s business and performance and to develop the management team’s presentation and materials for meetings with the twelve parties.

On July 7, 2022, the Board of Directors convened a meeting in-person and via videoconference with members of senior management and representatives of New Mountain and Goldman Sachs attending. At the meeting, the Board of Directors discussed the recent dispute of the semiannual reconciliation from the Centers for Medicare and Medicaid Services (which we refer to as “CMS”) under the BPCI-A program and, as a result of the future financial impact of CMS’s pricing adjustments, potentially winding down Signify’s Episodes of Care Services segment. Representatives of senior management also discussed with the Board of Directors financial projections of Signify that management was in the process of finalizing, which took into account the potential wind down of the Episodes of Care Services segment and explained that, if approved by the Board of Directors, the financial projections would be provided to interested parties and used by any financial advisor engaged by Signify to conduct financial analyses in connection with its fairness opinion prepared in connection with any strategic transaction involving Signify. Following discussion, the Board of Directors approved a restructuring plan to wind down Signify’s Episodes of Care Services segment, which decision Signify publicly announced on July 8, 2022 following the meeting of the Board of Directors. On July 10, 2022, the Board of Directors, acting by unanimous written consent, approved the financial projections which the management team had finalized.

Over the course of the next several weeks, members of Signify’s management team met in person or via videoconference with representatives of the twelve potentially interested parties that had executed non-disclosure agreements to review Signify’s business and performance. Certain parties submitted follow-up questions about

 

32

Signify’s business and financial performance to representatives of the financial advisors, who worked with Signify’s management team to respond to those questions. During this time, representatives of the financial advisors held discussions with the twelve parties to discuss their respective level of interest in pursuing a transaction with Signify at that time and to answer additional questions about the process and Signify’s business.

During this time, following a meeting between Signify’s management team and representatives of CVS Health, on July 13, 2022, Mr. Guertin sent an email to Messrs. Holt and Peterson thanking Signify for its time, noting that the preliminary feedback was very positive and reiterating how excited and optimistic he was about the prospects of a potential transaction. In addition, on July 26, 2022, Mr. Guertin met with Mr. Armbrester for dinner in New York to discuss their respective thoughts regarding a potential transaction between the parties and the strategic fit of Signify’s business and CVS Health. No specific transaction terms were discussed at this meeting.

On July 28, 2022, the Board of Directors convened a meeting with members of senior management and representatives of New Mountain, Goldman Sachs and Ropes & Gray attending. Representatives of Goldman Sachs updated the Board of Directors on the status of the process to date and Goldman Sachs’s engagement with the parties contacted, and Goldman Sachs shared with the Board of Directors the schedule of remaining management presentations with interested parties. Representatives of Goldman Sachs proposed, as the next step, to prepare a process letter that would be shared with interested parties and that would indicate a deadline by which each party would be asked to submit, among other things, a price at which it would be willing to acquire 100% of the outstanding equity of Signify. Given the timing of the remaining scheduled management presentations, Goldman Sachs advised designating August 8, 2022 as the deadline for interested parties to submit indications of interest. After discussion, the Board of Directors determined it was in the best interests of Signify and its stockholders to approve this approach and authorized Goldman Sachs to prepare and send a process letter to interested parties, which would indicate a deadline of August 8, 2022 for the submission of initial indications of interest.

On July 28, 2022, the financial advisors sent a process letter to each of ten potentially interested parties, which requested that initial indications of interest should be submitted by 5:00 p.m. ET on August 8, 2022 (which we refer to as the “Initial Bid Deadline”). On July 29, 2022, the financial advisors sent a process letter to one additional party.

On August 2, 2022, the Wall Street Journal published an article reporting that Signify was considering strategic alternatives, including a potential sale of Signify. Signify’s stock closed at $18.31 per share as compared to $17.15 per share on August 1, 2022.

On August 4, 2022, prior to the expiration of the Initial Bid Deadline, CVS Health submitted an indication of interest to acquire 100% of Signify’s outstanding shares of common stock at $24.00 per share in cash, with no financing contingency (which we refer to as the “August 4 CVS Proposal”). The August 4 CVS Proposal assumed that key members of Signify’s management team would enter into employment arrangements concurrent with the execution of the definitive merger agreement (but effective as of closing of the transaction) and that the TRA would be terminated for no additional consideration and without triggering any payments or liabilities. The August 4 CVS Proposal also requested that Signify negotiate exclusively with CVS Health for 30 days, during which CVS Health would complete its confirmatory diligence review and the parties would negotiate a definitive merger agreement and related transaction documents. The August 4 CVS Proposal identified Fried, Frank, Harris, Shriver & Jacobson LLP as its legal advisor (which we refer to as “Fried Frank”) and BofA Securities, Inc. as its financial advisor (which we refer to as “BofA”).

On August 7, 2022, the Wall Street Journal published an article stating that CVS Health planned to enter a bid in connection with Signify’s exploration of strategic alternatives, including a potential sale of Signify.

On August 8, 2022, Party B submitted an indication of interest to acquire 100% of Signify’s Class A Common Stock for $21.00 per share in cash (which we refer to as the “Party B Proposal”). The Party B Proposal

 

33

indicated that the transaction would be funded with a combination of equity and debt and would be subject to completion of Party B’s due diligence.

On August 9, 2022, Party A submitted an updated indication of interest to acquire 100% of Signify’s outstanding shares of common stock for $21.50 per share in cash, which reflected a $1.50 per share increase from the Initial Party A Proposal (which we refer to as the “Updated Party A Proposal”). Party A indicated that it had completed substantial diligence, but that its proposal was contingent upon completion of confirmatory due diligence.

On August 10, 2022, a representative of Party D called Mr. Holt to apologize for missing the Initial Bid Deadline and indicated that Party D’s interest was very strong and that its bid would be forthcoming within a week.

On August 13, 2022, Party C submitted an indication of interest, pursuant to which Party C proposed to combine with Signify via a stock-for-stock merger and pursuant to which 100% of Signify’s outstanding equity securities would be exchanged for shares of Party C, resulting in Signify’s stockholders owning approximately 40% of the combined entity (which we refer to as the “Party C Proposal”). The Party C Proposal was subject to the negotiation of a definitive transaction agreement, completion of due diligence and approval of Party C’s board of directors.

On August 17, 2022, a draft merger agreement was made available in the Data Room by the financial advisors to CVS Health and its representatives.

On August 18, 2022, Signify executed a separate “clean team” agreement with CVS Health, pursuant to which certain of Signify’s competitively sensitive information would be shared with a specified subset of CVS Health’s representatives.

On August 21, 2022, the Wall Street Journal published an article reporting that Amazon.com Inc., UnitedHealth Group Inc. and CVS Health were among the bidders in an auction for a sale of Signify.

On August 22, 2022, a representative of Party D called Mr. Holt to inform him that Party D would not be submitting a bid.

Later in the day on August 22, 2022, the Board of Directors convened by videoconference with members of senior management and representatives of New Mountain, Goldman Sachs, Deutsche Bank and Ropes & Gray attending. Representatives of the financial advisors updated the Board of Directors on the results of the process to date and its engagement with the parties contacted, and they summarized for the Board of Directors each of the August 4 CVS Proposal, the Party B Proposal, the Updated Party A Proposal and the Party C Proposal, copies of which had been previously provided to the Board of Directors. Representatives of the financial advisors informed the Board of Directors that no other parties had submitted indications of interest, including one potential party which had indicated that it was planning to submit a proposal after the Initial Bid Deadline, but ultimately informed the financial advisors that it would not do so. Representatives of the financial advisors each shared with the Board of Directors preliminary financial information relating to Signify and such indications of interest. Representatives of Ropes & Gray provided the Board of Directors with an overview of the antitrust regulatory approval process for a potential transaction, the current regulatory landscape and the potential impact of the foregoing in light of the identities of the remaining interested parties. Representatives of Ropes & Gray also discussed with the Board of Directors the key proposed terms of the auction draft merger agreement. Following discussion, the Board of Directors approved an auction draft merger agreement that included: (i) a Signify termination fee equal to 2.0% of equity value, which would be payable by Signify if the Board of Directors terminated the merger agreement to accept a proposal for a superior transaction, (ii) a “hell or high water” standard with respect to the buyer’s efforts to obtain regulatory approval, which would require a buyer to divest assets of buyer and Signify if required by antitrust authorities in order to approve the transaction, (iii) a proposed outside date of four months from the date of signing, with one eight-month automatic extension if regulatory

 

34

approval had not been obtained at the end of the initial four months, and one twelve-month extension (at Signify’s sole option) if regulatory approval had not been obtained at the expiration of the initial twelve months, and (iv) a proposed reverse termination fee equal to 10.0% of equity value, which would be payable by a buyer in the event a potential transaction was terminated for failure to obtain regulatory approval. The auction draft merger agreement also proposed that, in the event the ultimate buyer was a strategic party, upon a termination of the merger agreement due to failure to obtain regulatory approval, the buyer would be required to enter into a commercial agreement with Signify. Representatives of the financial advisors then led a discussion among the Board of Directors regarding potential next steps and provided their perspectives on whether Signify should continue with Party A and Party B, the two remaining financial sponsors in the process, given the valuations in the Updated Party A Proposal and the Party B Proposal were both materially lower than the August 4 CVS Proposal and both were reliant upon a level of debt financing that, in the view of the financial advisors, was not likely obtainable in the current climate for raising debt financing. Representatives of the financial advisors also reviewed with the Board of Directors whether Signify should continue to engage with CVS Health and Party C to determine each such party’s best offer before the Board of Directors made a determination with respect to whether to enter into a sale of Signify or other strategic transaction at this time or remain independent.

Representatives of the financial advisors further advised that they prepare and send a process letter to each of CVS Health and Party C, which would indicate deadlines of August 29, 2022 for each to submit a proposed mark-up of the auction draft merger agreement and September 6, 2022 for each to submit a final indication of interest. Following discussion, the Board of Directors authorized the financial advisors to inform each of Party A and Party B that the Board of Directors had determined to decline to advance them in the process and to prepare and send a process letter to each of CVS Health and Party C, which would indicate deadlines of (i) August 29, 2022 for a mark-up of the auction draft merger agreement and (ii) September 6, 2022 for the submission of a best and final proposal with respect to an acquisition or other strategic transaction involving Signify.

Also, at the meeting on August 22, 2022, after representatives of the financial advisors had departed from the meeting, the Board of Directors considered the potential engagement of Goldman Sachs and Deutsche Bank as Signify’s financial advisors in connection with any transaction. Among the factors considered in retaining Goldman Sachs and Deutsche Bank were the expertise of each financial advisor with transactions of this type, the familiarity of each financial advisor with Signify and its business and the terms on which each financial advisor was proposed to be engaged. The proposed terms included the fees payable to each financial advisor in the event of a sale of Signify, which provided that Goldman Sachs and Deutsche Bank would collectively receive 1.0% of the aggregate consideration if the per share price was less than $33.50 and 1.50% of the aggregate consideration if the per share price was $33.50 or greater. The Board of Directors also considered relationships that Goldman Sachs and Deutsche Bank had disclosed with respect to Signify, New Mountain and the remaining potential bidders. After discussion, the Board of Directors determined to engage Goldman Sachs and Deutsche Bank to serve as its financial advisors with respect to any potential transaction.

On August 22, 2022, the financial advisors sent a process letter to CVS Health, which provided that a mark-up of the auction draft merger agreement should be submitted by no later than 12:00 p.m. ET on August 29, 2022 and final indications of interest to acquire 100% of Signify’s Class A Common Stock (assuming conversion of all (i) LLC units and (ii) shares of Class B Common Stock into shares of Class A Common Stock) should be submitted by no later than 12:00 p.m. ET on September 6, 2022 (which we refer to as the “Final Round Bid Deadline”).

On August 23, 2022, a representative of BofA contacted Mr. Holt on behalf of CVS Health to reiterate CVS Health’s strong interest in a potential transaction with Signify. Mr. Holt informed the BofA representative that CVS Health should provide a compelling valuation that he could relay to the Board of Directors for consideration. The closing price of Signify’s Class A Common Stock on August 26, 2022 was $28.00 per share.

On the morning of August 29, 2022, CVS Health submitted a revised indication of interest to acquire 100% of Signify’s outstanding equity for $30.00 per share in cash, with no financing contingency (which we refer to as the “August 29 CVS Proposal”), which included a proposed revised draft of the merger agreement. CVS Health’s

 

35

proposed revised draft of the merger agreement included, among other things: (i) a less stringent formulation for the efforts required by it to obtain regulatory approval, (ii) an increase in the Signify termination fee from 2.0% to 4.0% of equity value, (iii) a decrease in the reverse termination fee from 10.0% to 4.0% of equity value, (iv) an expansion of the prohibition of certain activities Signify could conduct between signing and closing and (v) an expansion of Signify’s representations and warranties. The August 29 CVS Proposal also indicated that CVS Health would require (i) New Mountain and its affiliates to enter into a voting agreement, pursuant to which New Mountain would vote in favor of the transaction, (ii) termination of the TRA without any payment in respect of that termination to the beneficiaries thereunder and (iii) that certain unspecified “key” employees of Signify would execute employment agreements with CVS Health concurrently with the execution and delivery of the merger agreement. The August 29 CVS Proposal was contingent upon Signify and its advisors committing to work with CVS Health expeditiously and in good faith in order to announce a transaction on the morning of Tuesday, September 6, 2022. Representatives of CVS Health separately contacted representatives of Signify to emphasize that CVS Health was interested in transacting on an expedited timeline with a view towards preempting Signify’s auction process and signing a definitive agreement before the Final Round Bid Deadline.

Later in the afternoon of August 29, 2022, the Board of Directors convened via videoconference with members of senior management and representatives of New Mountain, Goldman Sachs, Deutsche Bank and Ropes & Gray attending. Representatives of the financial advisors updated the Board of Directors on the events since the last meeting, reminded the Board of Directors that the deadline for CVS Health and Party C to submit mark-ups to the auction draft merger agreement had been that day at 12:00 p.m. E.T., and reported that Party C had not submitted a mark-up to the draft merger agreement by such deadline. Representatives of the financial advisors then summarized for the Board of Directors and discussed their perspectives on the August 29 CVS Proposal. The financial advisors noted that, in light of the fact that there was currently no other bidder for Signify willing to place a comparable value on Signify, the Board of Directors should consider exploring whether CVS Health would be willing to further increase the price per share indicated in the August 29 CVS Proposal, at which point the Board of Directors should consider whether the price offered by CVS Health would be sufficient to pursue a sale of Signify to CVS Health. Following discussion, the Board of Directors determined that it would be in the best interests of Signify and its stockholders to negotiate with CVS Health in furtherance of exploring whether CVS Health would be willing to further increase its price per share and to make adjustments to the August 29 CVS Proposal that would be more favorable to Signify’s stockholders, and authorized and directed Mr. Holt and Signify’s management team, along with the financial advisors, to do so.

Following the August 29 meeting of the Board of Directors, Mr. Holt contacted Mr. Guertin to communicate the Board of Directors’ request for CVS Health to improve the August 29 CVS Proposal by increasing the per share price, indicating that he thought the Board of Directors would support a preemptive proposal at $35.00 per share. Mr. Holt indicated that New Mountain would be willing to terminate the TRA, with no payment at that valuation, but requested that CVS Health also agree to, among other things, a Signify termination fee of 3.0% of the equity value, an antitrust termination fee of 7.0% of the equity value and a request for the parties to amend their existing commercial agreement upon the termination of the merger agreement because of failure to obtain regulatory approval, pursuant to which CVS Health would agree to use Signify as CVS Health’s exclusive provider of in-home evaluations for a specified period of time following such termination. Mr. Holt subsequently sent Mr. Guertin an email, which confirmed the points Mr. Holt proposed on their call.

On the morning of August 30, 2022, Mr. Guertin called Mr. Holt to inform him that although CVS Health was willing to accommodate several of Signify’s proposals, including a decrease in Signify’s termination fee to 3.0% of equity value and an increase in the antitrust termination fee to 5.0% of equity value, CVS Health was unwilling to increase its valuation and that its $30.00 per share in cash proposal was its best and final proposal. Mr. Guertin also informed Mr. Holt that CVS Health was unwilling to accommodate Signify’s request for the parties to amend their existing commercial agreement upon the termination of the merger agreement because of failure to obtain regulatory approval, pursuant to which CVS Health would agree to use Signify as CVS Health’s exclusive provider of in-home evaluations for a specified period of time following such termination. Mr. Holt shared with Mr. Guertin his view that the Board of Directors would not support a preemptive proposal on those terms.

 

36

Following the conversation between Messrs. Guertin and Holt, a representative of Goldman Sachs contacted Mr. Cowhey to further encourage CVS Health to improve its valuation. On the morning of August 31, 2022, Mr. Cowhey called back the representative of Goldman Sachs to report that CVS Health would be willing to improve its per share price to $30.50, with the understanding that the parties would work to sign a definitive agreement for the transaction prior to the Final Round Bid Deadline, which such representative of Goldman Sachs relayed to Mr. Holt. Mr. Holt then called Mr. Guertin to inform Mr. Guertin that Mr. Holt would bring the updated proposal previously communicated by Mr. Cowhey to the representative of Goldman Sachs to the Board of Directors for consideration.

On the afternoon of August 31, 2022, the Board of Directors convened via videoconference with members of senior management and representatives of New Mountain, Goldman Sachs, Deutsche Bank and Ropes & Gray attending. A representative of Goldman Sachs provided the Board of Directors with an update on his conversations with Mr. Cowhey over the preceding 24 hours, and Mr. Holt informed the Board of Directors that he had called Mr. Guertin to confirm the details of the proposal communicated by Mr. Cowhey to the representative of Goldman Sachs. Mr. Holt reported that, consistent with the proposal previously communicated by Mr. Cowhey, Mr. Guertin had verbally communicated a final proposal on behalf of CVS Health to acquire 100% of Signify’s outstanding common stock for $30.50 per share in cash (the “August 31 CVS Proposal”). The August 31 CVS Proposal did not include a financing contingency and assumed that the TRA would be terminated at the closing of the proposed transaction with no payment made thereunder and that New Mountain would enter into a voting agreement supporting the proposed transaction. Representatives of the financial advisors then led a discussion of the August 31 CVS Proposal in the context of their respective preliminary financial analyses, noting that the August 31 CVS Proposal represented an approximate 78% premium to the unaffected stock price of Signify on August 1, 2022, the unaffected date prior to the Wall Street Journal reporting that Signify was pursuing a potential sale, and a 14% premium to Signify’s 52-week high trading price. Mr. Holt then informed the Board of Directors that Mr. Guertin had emphasized the importance to CVS Health of completing the potential transaction on an expedited timeline, under which the parties would work towards executing a definitive merger agreement expeditiously with a view towards publicly announcing the potential transaction on September 6, 2022. The representatives of New Mountain attending the meeting confirmed for the Board of Directors that New Mountain would be willing to, on behalf of itself and the other potential recipients of payments under the TRA, agree to terminate the TRA at the closing of the proposed transaction with no further payments being made thereunder and, subject to reviewing the proposed terms, execute a customary voting agreement in support of the proposed transaction to be executed concurrently with the execution of the definitive merger agreement. Following discussion, the Board of Directors authorized and directed Signify’s management team and its advisors to continue discussions with CVS Health with a view towards negotiating a definitive merger agreement as soon as possible, with a further Board of Directors meeting to be convened prior to making any final determination on the proposed transaction.

Also, on August 31, 2022, Signify executed a non-disclosure agreement with Party C pursuant to which Party C would provide Signify with non-public information about Party C in connection with further discussions regarding the Party C Proposal. The non-disclosure agreement with Party C did not include a standstill provision binding on Signify with respect to Party C or a non-solicit provision binding on Signify.

Later in the afternoon on August 31, 2022, representatives of Ropes & Gray sent revised drafts of the merger agreement and a draft of the proposed amendment to the TRA to Fried Frank.

On September 1, 2022, CVS Health submitted the August 31 CVS Proposal in writing, and Fried Frank sent an initial draft of the voting agreement and a revised draft of the merger agreement to Ropes & Gray. Over the next 36 hours, Fried Frank and Ropes & Gray exchanged multiple revised drafts of the merger agreement, voting agreement and amendment to the TRA.

At 5:00 p.m. ET on September 2, 2022, the Board of Directors convened by videoconference with members of senior management and representatives of Goldman Sachs, Deutsche Bank and Ropes & Gray attending. The

 

37

Board of Directors received a report regarding negotiations with CVS Health with respect to the proposed transaction terms since the August 31 meeting of the Board of Directors. Representatives of the financial advisors reviewed with the Board of Directors their respective updated financial analyses of the August 31 CVS Proposal, as well as the process conducted to date.

Representatives of Ropes & Gray reviewed with the Board of Directors the fiduciary duties owed by the Board of Directors under Delaware law. Representatives of Ropes & Gray then reviewed with the Board of Directors the key aspects of the proposed draft merger agreement and the other proposed draft definitive transaction documents based on the then-current drafts of the agreements and discussions which had occurred between the Ropes & Gray and Fried Frank teams, including, among others, the provisions concerning the Board of Directors’ ability to change its recommendation and under appropriate circumstances terminate the merger agreement to accept a superior proposal, and the anticipated timeline of events between signing and closing the proposed transaction, should the Board of Directors determine to approve the proposed transaction and the merger agreement. Ropes & Gray also reported to the Board of Directors that they were awaiting an updated draft of the proposed merger agreement from Fried Frank, which would reflect the outcome of the negotiations the two firms had held over the preceding 36 hours.

Following the presentations by Goldman Sachs, Deutsche Bank and Ropes & Gray, the Board of Directors discussed the August 31 CVS Proposal, including the potential merits and considerations for and against proceeding with the proposed transaction. For additional information, see the section entitled “Recommendation of the Board of Directors and Reasons for the Merger—Reasons for the Merger”. After discussion, the meeting was adjourned until a later time after which it was expected that CVS Health would have delivered a final proposal, including final proposed definitive transaction documents.

Later that evening, the Wall Street Journal published an article reporting that CVS Health was in advanced discussions to acquire Signify for $8 billion.

Representatives of Fried Frank subsequently sent a revised draft of the merger agreement to Ropes & Gray, which draft reflected proposed resolutions of the remaining open issues that Fried Frank and Ropes & Gray had discussed that day and which draft was shared with the Board of Directors.

At 9:00 p.m. ET, the Board of Directors reconvened by videoconference with members of senior management and representatives of Goldman Sachs, Deutsche Bank and Ropes & Gray attending. Representatives of Ropes & Gray reported to the Board of Directors that they had received and reviewed the revised draft of the merger agreement and that the changes were consistent with the verbal discussions and resolutions among the parties that had previously been discussed with the Board of Directors.

Representatives of Goldman Sachs then delivered to the Board of Directors Goldman Sachs’ oral opinion, subsequently confirmed in Goldman Sachs’ written opinion dated as of September 2, 2022, to the effect that, as of the date of Goldman Sachs’ written opinion, and based upon and subject to the factors and assumptions set forth in Goldman Sachs’ written opinion, the $30.50 in cash per share to be paid to the holders (other than CVS, New Mountain and their respective affiliates) of the outstanding shares of Class A Common Stock pursuant to the Merger Agreement was fair from a financial point of view to such holders. For additional information, see the section entitled “The Merger—Opinion of Goldman Sachs & Co. LLC” and Annex B to this proxy statement. Representatives of Deutsche Bank also delivered to the Board of Directors Deutsche Bank’s oral opinion, subsequently confirmed in writing dated as of September 2, 2022, to the effect that, as of the date of such written opinion, based upon and subject to the assumptions, limitations, qualifications and conditions set forth in Deutsche Bank’s opinion, the Merger Consideration was fair, from a financial point of view, to the holders of Company Stock, excluding CVS, New Mountain and their respective affiliates. For additional information, see the section entitled “The Merger—Opinion of Deutsche Bank Securities Inc.” and Annex C to this proxy statement.

After discussion, the Board of Directors, among other things, (i) determined that the Merger and the Transactions were advisable, fair to and in the best interests of Signify and Signify’s stockholders, (ii) approved

 

38

and declared it advisable to enter into the Merger Agreement, (iii) directed that the adoption of the Merger Agreement be submitted to a vote of Signify’s stockholders at the Special Meeting and (iv) subject to the terms and conditions of the Merger Agreement (including Section 6.02 thereof), recommended that Signify’s stockholders approve the adoption of the Merger Agreement and the Transactions (including the Merger on the terms and subject to the conditions set forth in the Merger Agreement).

Later in the evening of September 2, 2022, (i) Signify and CVS executed the Merger Agreement, (ii) CVS and New Mountain executed the Voting Agreement and (iii) Signify and New Mountain executed the TRA Amendment.

On the evening of September 5, 2022, Signify and CVS Health issued a joint press release announcing the execution of the Merger Agreement. On September 6, 2022, Signify filed with the SEC a Current Report on Form 8-K that summarized the Merger Agreement, Voting Agreement and TRA Amendment and included each of the foregoing as exhibits thereto.

Recommendation of the Board of Directors and Reasons for the Merger

Recommendation of the Board of Directors

After careful consideration, on September 2, 2022, the Board of Directors, unanimously among the directors voting, (i) determined that the Merger and the Transactions are advisable, fair to and in the best interests of Signify and the Signify Stockholders, (ii) approved and declared it advisable to enter into the Merger Agreement, (iii) directed that the adoption of the Merger Agreement be submitted to a vote of the Signify Stockholders at the Special Meeting and (iv) subject to the terms and conditions of the Merger Agreement (including Section 6.02 thereof), resolved to recommend that the Signify Stockholders approve the adoption of the Merger Agreement and the Transactions (including the Merger on the terms and subject to the conditions set forth in the Merger Agreement). Accordingly, the Board of Directors, unanimously among the directors voting, recommends that the Signify Stockholders vote “FOR” the adoption of the Merger Agreement and “FOR” the approval of the Adjournment Proposal.

Reasons for the Merger

The Board of Directors, considered the following reasons (which are not listed in any relative order of importance), all of which it viewed as generally supporting its (i) determination that the Merger and the Transactions are advisable, fair to and in the best interests of Signify and the Signify Stockholders, (ii) approval and declaration that it is advisable to enter into the Merger Agreement, (iii) direction that the adoption of the Merger Agreement be submitted to a vote of the Signify Stockholders at the Special Meeting and (iv) subject to the terms and conditions of the Merger Agreement (including Section 6.02 thereof), resolved to recommend that the Signify Stockholders approve the adoption of the Merger Agreement and the Transactions (including the Merger on the terms and subject to the conditions set forth in the Merger Agreement):

 

•

Attractive Price: in the judgment of the Board of Directors, the all-cash Per Share Consideration of $30.50, taking into account the business, operations, prospects, strategic and short and long term operating plans, assets, liabilities and financial condition of Signify, and the relative certainty and liquidity of the all-cash consideration, is more favorable to the Signify Stockholders than the potential value expected from the alternative of Signify continuing to operate independently and pursuing its current business and financial plans on a standalone basis, taking into account near-term and longer term uncertainties associated with continued independence;

 

•

Substantial Premium: the fact that the Per Share Consideration of $30.50 represents a compelling premium to historical market prices for the shares of the Class A Common Stock, including that the Per Share Consideration constitutes a premium of:

 

•

approximately 77.8% to the trading price of the Class A Common Stock on August 1, 2022, the day prior to the date on which news reports reported takeover interest in Signify; and

 

39

•

approximately 99.6% to the 30-day trading period volume weighted average price (“VWAP”) of the Class A Common Stock.

 

•

Certainty of Value: the fact that an all-cash transaction would offer certainty of value to the Signify Stockholders, as compared to the risks and uncertainties of continuing as a standalone company and eliminating long-term business and execution risk;

 

•

Strategic Alternatives: the potential values, benefits, risks and uncertainties facing the Signify Stockholders associated with possible strategic alternatives to the proposed transaction, and the timing and likelihood of accomplishing such alternatives. In particular, the Board of Directors considered the potential stockholder value based on management’s projections that could be expected to be generated from remaining an independent public company, the possibility of being acquired by a buyer other than CVS, as well as the potential benefits, risks and uncertainties associated with such alternatives. Based on the foregoing, the Board of Directors considered that none of these options, on a risk-adjusted basis, was reasonably likely to create value for the Signify Stockholders greater than the Per Share Consideration;

 

•

Risks Associated with Continued Independence: the fact that while the Board of Directors remained optimistic about Signify’s prospects on a standalone basis, it also considered the risks associated with Signify continuing to operate as a standalone company, including the achievability of meeting financial projections and the potential risks posed by changes to laws, regulations and other requirements affecting Signify’s business and industry;

 

•

Active Negotiating Process: the fact that Signify ran a robust process, after which the Board of Directors formed the belief that (i) as a result of an active, extensive, arms-length negotiating process with CVS over the course of several weeks that resulted in an increase to the Merger Consideration from CVS’s initial offer (for more information, please see the section of this proxy statement captioned “The Merger—Background of the Merger”), Signify had obtained CVS’s best offer, (ii) there was substantial risk of losing CVS’s final offer of $30.50 per share if Signify continued to pursue a higher price and (iii) based on the conversations and negotiations with CVS and the strategic process described below, as of the date of the Merger Agreement, the offer of $30.50 per share represented the highest price reasonably obtainable by Signify under the circumstances;

 

•

Alternative Proposals: the fact that, in the Board of Directors’ judgment, it was preferable to enter into the Merger Agreement with CVS rather than any of the other prospective interested parties in the transaction process in light of the consideration offered by those other prospective interested parties, and the fact that after the transaction process was conducted by Signify, there were no potentially interested parties that presented viable, all-cash bids for the acquisition of Signify at a price comparable to that offered by CVS;

 

•

Transaction Size: with the assistance of the financial advisors, the Board of Directors evaluated the overall size of the transaction, and concluded it was unlikely that a private equity firm would be able to complete the transaction at a value comparable to the price offered by CVS, in part because the current debt financing markets likely would not support the leverage assumed by the private equity proposals that the Board of Directors did receive. This reinforced the Board of Directors’ view that a financial buyer would be unlikely to offer greater than $30.50 per share, or move as quickly as CVS due to the time it would take a financial buyer to arrange both equity and debt financing from multiple sources;

 

•

Potential Synergies: the fact that, in the Board of Directors’ judgment, a merger between Signify and CVS is likely to generate significant synergy value for CVS, which the Board of Directors believed contributed to CVS’s willingness and ability to increase its offer price to $30.50 per share, and the Board of Directors’ belief that a transaction with another strategic buyer might not generate comparable synergy value;

 

•

No Financing Condition: the fact that the Merger is not subject to a financing condition, and that CVS represented to Signify in the Merger Agreement that it will have sufficient financial resources at the Closing to pay the aggregate Merger Consideration and to consummate the Merger;

 

40

•

Opinion of Goldman Sachs: the oral opinion of Goldman Sachs, subsequently confirmed in writing dated as of September 2, 2022, to the Board of Directors to the effect that, as of the date of Goldman Sachs’ written opinion, and based upon and subject to the factors and assumptions set forth in Goldman Sachs’ written opinion, the $30.50 in cash per share of Class A Common Stock to be paid to the holders (other than CVS, New Mountain, a significant shareholder of Signify, and their respective affiliates) of the outstanding shares of Class A Common Stock pursuant to the Merger Agreement was fair from a financial point of view to such holders. For more information, please see the section of this proxy statement captioned “The Merger—Opinion of Goldman Sachs & Co. LLC,” which full text of the written opinion is attached as Annex B to this proxy statement and is incorporated by reference in this proxy statement in its entirety;

 

•

Opinion of Deutsche Bank: the oral opinion of Deutsche Bank, subsequently confirmed in writing dated as of September 2, 2022, to the Board of Directors to the effect that, as of the date of such opinion, based upon and subject to the assumptions, limitations, qualifications and conditions set forth in Deutsche Bank’s opinion, the Merger Consideration was fair, from a financial point of view, to the Signify Stockholders, excluding CVS, New Mountain and their respective affiliates. For more information, please see the section of this proxy statement captioned “The Merger—Opinion of Deutsche Bank Securities Inc.” and the full text of the written opinion, which is attached as Annex C to this proxy statement and is incorporated by reference in this proxy statement in its entirety;

 

•

CVS’s Capabilities and Reputation: the fact that CVS is a creditworthy entity with substantial assets and a favorable reputation in the health care industry, its financial capacity to complete an acquisition of this size and complexity and its prior track record of completing large and complex acquisitions, which the Board of Directors believed supported the conclusion that a transaction with CVS could be successfully completed;

 

•

Appraisal Rights: the fact that the Signify Stockholders who do not vote for the adoption of the Merger Agreement and who follow certain prescribed procedures will have the right to dissent from the Merger and demand appraisal of the fair value of their shares under the DGCL;

 

•

Amendment to Tax Receivable Agreement: the fact that an investment fund affiliated with New Mountain, Signify’s largest stockholder, was willing to agree to an amendment to the Tax Receivable Agreement, among Signify, OpCo LLC and certain other parties thereto (the “TRA”) pursuant to which a substantial tax benefit payment resulting from the Transactions due to holders of rights under the TRA would be waived such that the tax benefits associated with the Transactions, to the extent CVS included such tax benefits in its valuation, would benefit the Signify Stockholders generally rather than only New Mountain and the other pre-IPO stockholders party to the TRA;

 

•

High Degree of Certainty of Closing: the high degree of certainty that the Closing would be achieved in a timely manner, under the terms of the Merger Agreement, including:

 

•

the financial strength of CVS and its ability to fund the Merger Consideration;

 

•

the absence of any financing condition in the Merger Agreement, as described above;

 

•

the fact that the adoption of the Merger Agreement is not subject to the approval of CVS’s stockholders;

 

•

the fact that New Mountain would be signing a voting agreement with Signify and CVS to vote in favor of the adoption of the Merger Agreement, subject to the terms and conditions thereof, and to consent to the Merger under our stockholders agreement;

 

•

the conditions to the consummation of the Merger being specific and limited, including the requirement that the Company Stockholder Approval be obtained and the fact that the definition of “Material Adverse Effect” excludes, among other things, COVID-19 (and any evolutions or mutations thereof), effects of the discontinuation of the Discontinued Businesses (as defined in this proxy statement) and Signify’s financial condition, providing a high degree of likelihood that the Merger will be consummated. For more information, please see the section of this proxy

 

41

statement captioned “Proposal 1: Adoption of the Merger Agreement—Conditions to the Closing of the Merger”; and

 

•

the commitment made by CVS to Signify with respect to efforts to obtain regulatory clearances, including under the HSR Act, as described above. For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Efforts to Close the Merger”; and

 

•

Additional Transaction Terms: the additional terms of the Merger Agreement and the related agreements, including:

 

•

Signify’s right, subject to certain conditions set forth in the Merger Agreement, to respond to and negotiate Acquisition Proposals prior to the time the Company Stockholder Approval is obtained;

 

•

Signify’s ability to terminate the Merger Agreement in order to accept a Superior Proposal, subject to certain conditions set forth in the Merger Agreement and paying CVS the Company Termination Fee;

 

•

the fact that the Board of Directors believed that the Company Termination Fee is reasonable, is consistent with the amount of such fees payable in comparable transactions on a relative basis, and is not preclusive of, or a substantial impediment to, a third party making an Acquisition Proposal (for more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—The Board of Directors’ Recommendation; Company Adverse Recommendation Change”);

 

•

the fact that, in the event the Merger Agreement is terminated prior to the consummation of the Merger in certain circumstances, CVS will be required to pay to Signify the Parent Termination Fee;

 

•

Signify’s right to specific performance to prevent breaches of the Merger Agreement; and

 

•

the fact that the outside date of the Merger Agreement allows for time that the Board of Directors believed to be sufficient to complete the Merger.

The Board of Directors also considered a number of reasons concerning Signify’s business and the Merger that weighed against approving the Merger, including the following (which are not listed in any relative order of importance):

 

•

No Participation in Future Earnings: the fact that Signify would no longer exist as an independent, publicly traded company, and stockholders would no longer participate in any future earnings or growth and would not benefit from any potential future appreciation in value of Signify;

 

•

Potential Payment of Company Termination Fee: the requirement that Signify pay CVS the Company Termination Fee under certain circumstances following termination of the Merger Agreement, including if the Board of Directors terminates the Merger Agreement in order to enter into an agreement with respect to a Superior Proposal (for more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—The Board of Directors’ Recommendation; Adverse Recommendation Change”);

 

•

Restrictions on Business Conduct: the restrictions on the conduct of Signify’s business prior to the consummation of the Merger, including the requirement that Signify use reasonable best efforts to conduct its business in the ordinary course, subject to specific limitations, which may delay or prevent Signify from undertaking business opportunities that may arise before the completion of the Merger and that, absent the Merger Agreement, Signify might have pursued;

 

•

Taxable Transaction: the fact that an all-cash transaction would generally be taxable to the Signify Stockholders that are U.S. persons for U.S. federal income tax purposes;

 

•

Prohibition on Solicitations: the fact that the terms of the Merger Agreement prohibit Signify and its representatives from soliciting Acquisition Proposals (subject to certain exceptions) until the earlier of the filing of the certificate of merger or the termination of the Merger Agreement;

 

42

•

Transaction Costs: the significant costs involved in connection with entering into the Merger Agreement and completing the Merger (many of which are payable whether or not the Merger is consummated);

 

•

Potential Stockholder Litigation: the impact on Signify of potential stockholder litigation in connection with the Merger;

 

•

Risks to Relationships: the risk that the announcement and pendency of the Merger may cause substantial harm to relationships with Signify’s employees, customers, vendors or strategic partners or may divert management and employee attention away from the day-to-day operations of Signify’s business, which may disrupt Signify’s business operations and have a negative effect on its financial results;

 

•

Closing Risk: the fact that all conditions to the parties’ obligations to consummate the Merger may not be satisfied or waived, and as a result the Merger may not be completed, even if the Signify Stockholders adopt the Merger Agreement;

 

•

Antitrust Risk: the fact that antitrust 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 or to take a long time to grant required approvals (see “The Merger Agreement—Efforts to Complete the Merger—Antitrust Matters”);

 

•

Insider Interests: the fact that Signify’s directors and officers may have interests in the Merger that may be different from, or in addition to, those of the Signify Stockholders (for more information, please see the section of this proxy statement captioned The Merger – Interests of Signify’s Directors and Executive Officers in the Merger); and

 

•

Risk of Talent Loss: the possible loss of key management or other personnel of Signify during the pendency of the Merger.

The foregoing discussion of reasons for the recommendation to adopt the Merger Agreement and approve the Merger and the transactions contemplated thereby addresses the reasons considered by the Board of Directors in consideration of its recommendation. In view of the wide variety of reasons considered by the Board of Directors in connection with its evaluation of the Merger and the complexity of these matters, the Board of Directors did not find it practicable to, and did not, quantify or otherwise assign relative weights to the specific reasons considered in reaching its determination and recommendation. Rather, in considering the information and reasons described above, individual members of the Board of Directors each applied his or her own personal business judgment to the process and may have given differing weights to differing factors. The Board of Directors based its recommendation on the totality of the information presented. The explanation of the reasons and reasoning set forth above contain forward-looking statements that should be read in conjunction with the section of this proxy statement entitled “Forward-Looking Statements.”

Opinion of Goldman Sachs & Co. LLC

Goldman Sachs rendered its opinion to the Board of Directors that, as of September 2, 2022 and based upon and subject to the factors and assumptions set forth therein, the $30.50 in cash per share of Class A Common Stock to be paid to the holders (other than CVS, New Mountain and their respective affiliates) of the outstanding shares of Class A Common Stock pursuant to the Merger Agreement was fair from a financial point of view to such holders.

The full text of the written opinion of Goldman Sachs, dated September 2, 2022, which sets forth assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached as Annex B. The summary of Goldman Sachs’ opinion contained in this proxy statement is qualified in its entirety by reference to the full text of Goldman Sachs’ written opinion. Goldman Sachs provided advisory services and its opinion for the information and assistance of the Board of Directors in connection with its consideration of the Merger. The Goldman Sachs opinion is not a recommendation as to how any Signify Stockholder should vote with respect to the Merger or any other matter.

 

43

In connection with rendering the opinion described above and performing its related financial analyses, Goldman Sachs reviewed, among other things:

 

•

the Merger Agreement;

 

•

annual reports to stockholders and Annual Reports on Form 10-K of Signify for the two fiscal years ended December 31, 2021 and 2020;

 

•

Signify’s Registration Statement on Form S-1, including the prospectus contained therein dated February 10, 2021, relating to Signify’s initial public offering;

 

•

certain interim reports to stockholders and Quarterly Reports on Form 10-Q of Signify;

 

•

certain other communications from Signify to its stockholders;

 

•

certain publicly available research analyst reports for Signify; and

 

•

certain internal financial analyses and forecasts for Signify prepared by its management, as approved for Goldman Sachs’ use by Signify (which are referred to in this section of the proxy statement as the “Forecasts”).

Goldman Sachs also held discussions with members of the senior management of Signify regarding their assessment of the past and current business operations, financial condition and future prospects of Signify; reviewed the reported price and trading activity for the Class A Common Stock; compared certain financial and stock market information for Signify with similar information for certain other companies the securities of which are publicly traded; reviewed the financial terms of certain recent business combinations in the healthcare and healthcare information technology industries and in other industries; and performed such other studies and analyses, and considered such other factors, as it deemed appropriate.

For purposes of rendering its opinion, Goldman Sachs, with the consent of the Board of Directors, relied upon and assumed the accuracy and completeness of all of the financial, legal, regulatory, tax, accounting and other information provided to, discussed with or reviewed by, it, without assuming any responsibility for independent verification thereof. In that regard, Goldman Sachs assumed with the consent of the Board of Directors that the Forecasts were reasonably prepared on a basis reflecting the best then available estimates and judgments of the management of Signify. Goldman Sachs did not make an independent evaluation or appraisal of the assets and liabilities (including any contingent, derivative or other off-balance-sheet assets and liabilities) of Signify or any of its subsidiaries and it was not furnished with any such evaluation or appraisal. Goldman Sachs assumed that all governmental, regulatory or other consents and approvals necessary for the consummation of the Merger will be obtained without any adverse effect on the expected benefits of the Merger in any way meaningful to its analysis. Goldman Sachs has also assumed that the Merger will be consummated on the terms set forth in the Merger Agreement, without the waiver or modification of any term or condition the effect of which would be in any way meaningful to its analysis.

Goldman Sachs’ opinion does not address the underlying business decision of Signify to engage in the Merger or the relative merits of the Merger as compared to any strategic alternatives that may be available to Signify; nor does it address any legal, regulatory, tax or accounting matters. Goldman Sachs’ opinion addresses only the fairness from a financial point of view to the holders (other than CVS, New Mountain and their respective affiliates) of shares of Class A Common Stock, as of the date of the opinion, of the $30.50 in cash per share of Class A Common Stock to be paid to such holders pursuant to the Merger Agreement. Goldman Sachs’ opinion does not express any view on, and does not address, any other term or aspect of the Merger Agreement, the Merger or any term or aspect of any other agreement or instrument contemplated by the Merger Agreement or entered into or amended in connection with the Transactions, including any payments (and any waiver of rights to receive any such payments) under the TRA and any amendments thereto, the fairness of the Merger to, or any consideration received in connection therewith by, the holders of any other class of securities, creditors, or other constituencies of Signify; nor as to the fairness of the amount or nature of any compensation to be paid or payable to any of the officers, directors or employees of Signify, or class of such persons, in connection with the

 

44

Merger, whether relative to the $30.50 in cash per share of Class A Common Stock to be paid to the holders (other than CVS, New Mountain and their respective affiliates) of shares of Class A Common Stock pursuant to the Merger Agreement or otherwise. Goldman Sachs does not express any opinion as to the prices at which the Class A Common Stock will trade at any time, as to the potential effects of volatility in the credit, financial and stock markets on Signify, CVS or the Merger, or as to the impact of the Merger on the solvency or viability of Signify or CVS or the ability of Signify or CVS to pay their respective obligations when they come due. Goldman Sachs’ opinion was necessarily based on economic, monetary, market and other conditions as in effect on, and the information made available to it as of, the date of the opinion and Goldman Sachs assumed no responsibility for updating, revising or reaffirming its opinion based on circumstances, developments or events occurring after the date of its opinion. Goldman Sachs’ advisory services and its opinion were provided for the information and assistance of the Board of Directors in connection with its consideration of the Merger and its opinion does not constitute a recommendation as to how any Signify Stockholder should vote with respect to the Merger or any other matter. Goldman Sachs’ opinion was approved by a fairness committee of Goldman Sachs.

Summary of Material Financial Analysis of Goldman Sachs

The following is a summary of the material financial analyses delivered by Goldman Sachs to the Board of Directors in connection with rendering the opinion described above. The following summary, however, does not purport to be a complete description of the financial analyses performed by Goldman Sachs, nor does the order of analyses described represent relative importance or weight given to those analyses by Goldman Sachs. Some of the summaries of the financial analyses include information presented in tabular format. The tables must be read together with the full text of each summary and are alone not a complete description of Goldman Sachs’ financial analyses. Except as otherwise noted, the following quantitative information, to the extent that it is based on market data, is based on market data as it existed on or before September 1, 2022, the last trading day prior to the date of Goldman Sachs’ opinion, and is not necessarily indicative of current or future market conditions.

Implied Premia Analysis. Goldman Sachs calculated and compared certain implied premia described below based on the $30.50 in cash per share of Class A Common Stock to be paid to the holders of the outstanding shares of Class A Common Stock pursuant to the Merger Agreement.

Goldman Sachs calculated the implied premia represented by the $30.50 in cash per share of Class A Common Stock relative to:

 

•

$17.15, the unaffected closing price per share of Class A Common Stock as of August 1, 2022 (the unaffected date prior to Wall Street Journal reporting that Signify was pursuing a potential sale) (which is referred to in this section of the proxy statement as the “Unaffected Share Price”);

 

•

$15.28, the VWAP of the Class A Common Stock over the 30-trading-day time period ended August 1, 2022 (which is referred to in this section of the proxy statement as the “30-day Undisturbed VWAP”);

 

•

$26.84, the highest closing trading price of the Class A Common Stock over the 52-week period ended September 1, 2022 (which is referred to in this section of the proxy statement as the “52-week High”); and

 

•

$11.19, the lowest closing trading price of the Class A Common Stock over the 52-week period ended September 1, 2022 (which is referred to in this section of the proxy statement as the “52-week Low”).

The results of these calculations and comparisons were as follows:

 

Common Stock Reference Price		Implied Premium Represented by $30.50 in Cash per Share
Unaffected Share Price of $17.15			77.8	%
30-day Undisturbed VWAP of $15.28			99.6	%
52-Week High of $26.84			13.6	%
52-Week Low of $11.19			172.6	%

 

45

Illustrative Discounted Cash Flow Analysis. Using the Forecasts, Goldman Sachs performed an illustrative discounted cash flow analysis on Signify. Using the mid-year convention for discounting cash flows and discount rates ranging from 9.5% to 11.5%, reflecting estimates of Signify’s weighted average cost of capital (“WACC”), Goldman Sachs discounted to present value as of June 30, 2022 (i) estimates of unlevered free cash flow (less stock-based compensation expenses) for Signify for the third and fourth quarters of fiscal year 2022 and the fiscal years 2023 through 2031 as reflected in the Forecasts and (ii) a range of illustrative terminal values for Signify, which were calculated by applying next twelve months (“NTM”) terminal year multiples of enterprise value to terminal year NTM Adjusted EBITDA ranging from 8.0x to 10.5x, to an estimate of Signify’s NTM Adjusted EBITDA (less stock-based compensation expenses), as provided by Signify management and approved for Goldman Sachs’ use by Signify management, as reflected in the Forecasts (which analysis implied perpetuity growth rates ranging from 0.9% to 4.6%). Goldman Sachs derived such discount rates by application of the Capital Asset Pricing Model (the “CAPM”), which requires certain company-specific inputs, including Signify’s target capital structure weightings, the cost of long-term debt, after-tax yield on permanent excess cash, if any, future applicable marginal cash tax rate and a beta for Signify, as well as certain financial metrics for the United States financial markets generally. The range of illustrative terminal year multiples of enterprise value to terminal year NTM Adjusted EBITDA (less stock-based compensation expenses) for Signify was estimated by Goldman Sachs utilizing its professional judgment and experience, taking into account, among other things, current and historical multiples of enterprise value to NTM Adjusted EBITDA (which is referred to in this section of the proxy statement as “NTM EV/EBITDA”) for Signify and certain selected publicly traded companies summarized in the section below captioned “—Selected Public Company Comparables.”

Goldman Sachs derived a range of illustrative enterprise values for Signify by adding the ranges of present values it derived as described above. Goldman Sachs then subtracted, from the range of illustrative enterprise values it derived for Signify, the amount of Signify’s total debt and debt-like items and added the amount of Signify’s unrestricted cash and cash equivalents as of June 30, 2022 and the present value of the benefit of tax assets covered by the TRA net of the liabilities owed under the TRA discounted at Signify’s WACC, each as provided by Signify management and approved for Goldman Sachs’ use by Signify management, to derive a range of illustrative equity values for Signify. Goldman Sachs then divided the range of illustrative equity values it derived by the number of fully diluted outstanding shares of Company Stock, as provided by Signify management and approved for Goldman Sachs’ use by Signify management, using the treasury stock method, to derive a range of illustrative present values per share of Signify’s common stock ranging from $22.23 to $30.43.

Illustrative Present Value of Future Share Price Analysis. Goldman Sachs performed an illustrative analysis of the implied present value of an illustrative future value per share of Class A Common Stock, which is designed to provide an indication of the present value of a theoretical future value of Signify’s equity as a function of Signify’s financial multiples. Goldman Sachs used the Forecasts to derive a range of theoretical future enterprise values for Signify for each of the fiscal years 2022, 2023 and 2024, by applying a range of NTM EV/EBITDA multiples of 15.5x to 17.5x to NTM Adjusted EBITDA estimates for Signify, using the Forecasts. These illustrative multiples were derived by Goldman Sachs utilizing its professional judgment and experience, taking into account, among other things, current and historical NTM EV/EBITDA multiples for Signify and certain selected publicly traded companies summarized in the section below captioned “—Selected Public Company Comparables.”

Goldman Sachs then subtracted the amount of Signify’s total debt and debt-like items and added the amount of Signify’s unrestricted cash and cash equivalents, as well as the present value of the benefit of tax assets covered by the TRA net of the liabilities owed under the TRA discounted at Signify’s WACC, as of December 31, 2022, 2023 and 2024, each as provided by Signify management and approved for Goldman Sachs’ use by Signify management, from the range of enterprise values in order to derive a range of illustrative equity values as of December 31, 2022, 2023 and 2024. Goldman Sachs then divided these implied equity values by the projected number of fully diluted outstanding Company Stock as of December 31, 2022, 2023 and 2024, as provided by Signify management and approved for Goldman Sachs’ use by Signify management, using the treasury stock method, to derive a range of implied future equity values per share of Signify’s common stock.

 

46

Goldman Sachs then discounted these implied future equity values per share to June 30, 2022, using an illustrative discount rate of 11.3%, reflecting an estimate of Signify’s cost of equity. Goldman Sachs derived such discount rate by application of the CAPM, which requires certain company-specific inputs, including a beta for Signify, as well as certain financial metrics for the United States financial markets generally. This analysis resulted in a range of implied present values of $19.06 to $28.90 per share of Signify’s common stock.

Selected Precedent Transactions Analysis. Goldman Sachs analyzed certain publicly available information relating to the following selected transactions in the health and healthcare information technology industries since 2017. For each of the selected transactions where information was publicly available, Goldman Sachs calculated and compared the implied enterprise value of the applicable target company based on the consideration paid in the transaction as a multiple of the target company’s EBITDA over the last twelve months at the time each such selected transaction was announced (which is referred to in this section of the proxy statement as “LTM”) period ended prior to the announcement of the applicable transaction (which is referred to in this section of the proxy statement as “EV/LTM EBITDA”) based on Bloomberg.com (“Bloomberg”), Institutional Brokers’ Estimate System (“IBES”) median estimates, investor presentations or select Wall Street research.

The following table presents the results of this analysis:

 

Announcement Year		Target		Acquiror		EV/LTM EBITDA
High Growth Peers
2021		Inovalon Holdings, Inc.		Nordic Capital / Insight Partners		29.0x
2020		HMS Holdings Corp.		Gainwell Acquisition Corp.		21.1x
2018		Cotiviti Holdings, Inc.		Verscend Technologies, Inc.		18.0x
2018		Athenahealth, Inc.		Veritas Capital Fund Management, L.L.C. / Evergreen Coast Capital Corp.		15.2x
2018		ABILITY Network Inc.		Inovalon Holdings, Inc.		16.6x
Median (All Transactions—High Growth Peers)						18.0x
Home Health/Post-Acute Peers
2022		LHC Group, Inc.		Optum, Inc.		22.8x
2022		Kindred Healthcare Inc.		Clayton, Dubilier & Rice, Inc.		10.5x
2018		MatrixCare Holdings, Inc.		ResMed Inc.		25.0x
2018		Curo Health Services		Humana Inc. / TPG Capital / Welsh, Carson, Anderson & Stowe		14.1x
2017		Almost Family, Inc.		LHC Group, Inc.		15.1x
Median (All Transactions—Home Health/Post-Acute Peers)						15.1x
Median (All Transactions)						17.3x

While none of the companies that participated in the selected transactions are directly comparable to Signify, the companies that participated in the selected transactions are companies with operations, results, market sizes and product profiles that, for the purposes of this analysis, may be considered similar to certain of Signify’s operations, results, market size and product profile.

Based on the results of the foregoing calculations of EV/LTM EBITDA multiples and Goldman Sachs’ analyses of the various transactions and its professional judgment and experience, Goldman Sachs selected a reference range of EV/LTM EBITDA multiples of 11.0x to 29.0x to Signify’s LTM Adjusted EBITDA for the twelve-month period ended June 30, 2022, as provided by Signify management and approved for Goldman Sachs’ use by Signify management, to derive a range of implied enterprise values for Signify. Goldman Sachs then subtracted from this range of implied enterprise values the amount of Signify’s total debt and debt-like

 

47

items, and added the amount of Signify’s unrestricted cash and cash equivalents as of June 30, 2022, each as provided by Signify management and approved for Goldman Sachs’ use by Signify management, to derive a range of illustrative equity values for Signify. Goldman Sachs divided the results by the number of fully diluted outstanding shares of Company Stock as of August 31, 2022, as provided by Signify management and approved for Goldman Sachs’ use by Signify management, using the treasury stock method, to derive a range of implied values per share of Signify’s common stock of $9.28 to $23.03.

Premia Paid Analysis. Goldman Sachs reviewed and analyzed, using publicly available information, the acquisition premia for 49 transactions announced from September 1, 2012 through September 1, 2022 involving a public company in the healthcare industry (excluding the biotechnology industry) based in the United States as the target where the disclosed enterprise value for the transaction were between $3 billion and $20 billion. For the entire period, using publicly available information, Goldman Sachs calculated the mean, median, 25th percentile and 75th percentile premia of the price paid in each of the transactions relative to the target’s last undisturbed closing stock price prior to announcement of the transaction. This analysis indicated a median premium of 27.0%, a mean premium of 30.3%, a 25th percentile premium of 13.3%, and a 75th percentile premium of 38.9% across the period. Using this analysis and its professional judgment and experience, Goldman Sachs applied a reference range of illustrative premia of 13.3% to 38.9% to the Unaffected Share Price, and calculated a range of implied equity values per share of Signify’s common stock of $19.44 to $23.82.

Selected Public Company Comparables.

Using publicly available information, Goldman Sachs reviewed and compared NTM EV/EBITDA multiples for Signify and the following publicly traded corporations in the healthcare and healthcare information technology industries, which are collectively referred to in this section of the proxy statement as the “Selected Companies”:

Post-Acute Peers

 

•

LHC Group, Inc.;

 

•

Amedisys, Inc.;

 

•

Addus Homecare Corporation;

 

•

Innovage Holding Corp.;

 

•

Aveanna Healthcare Holdings, Inc.; and

 

•

Enhabit, Inc.

Profitable HCIT Peers

 

•

Evolent Health, Inc.;

 

•

LifeStance Health Group Inc.;

 

•

Progyny, Inc.;

 

•

Teladoc Health, Inc.;

 

•

R1 RCM Inc.; and

 

•

NextGen Healthcare, Inc.

Although none of the Selected Companies is directly comparable to Signify, the Selected Companies included were chosen because they are publicly traded companies in the healthcare and healthcare information technology industries with certain operations that for purposes of analysis may be considered similar to certain operations of Signify.

 

48

Goldman Sachs calculated and compared the enterprise value as of September 1, 2022 as a multiple of NTM Adjusted EBITDA for each of the Selected Companies, in each case based on financial and trading data as of September 1, 2022 (other than LHC Group, Inc. whose data is as of March 29, 2022, the unaffected date prior to the announcement of its acquisition by UnitedHealth Group Inc.), information Goldman Sachs obtained from public filings, Bloomberg, publicly available historical and market data and IBES estimates.

The results of this analysis are summarized as follows:

 

Selected Companies		EV/2023E EBITDA Multiple
Signify (as of August 1, 2022)			14.9x
Post-Acute Peers
LHC Group, Inc.			18.7x
Amedisys, Inc.			14.1x
Addus Homecare Corporation			13.5x
Innovage Holding Corp.			10.2x
Aveanna Healthcare Holdings, Inc.			10.1x
Enhabit, Inc.			8.0x
Post-Acute Peers Median			11.9x
Profitable HCIT Peers
Evolent Health, Inc.			28.5x
LifeStance Health Group Inc.			28.0x
Progyny, Inc.			22.0x
Teladoc Health, Inc.			19.7x
R1 RCM Inc.			15.3x
NextGen Healthcare, Inc.			10.2x
Profitable HCIT Peers Median			20.9x

General

The preparation of a fairness opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. Selecting portions of the analyses or of the summary set forth above, without considering the analyses as a whole, could create an incomplete view of the processes underlying Goldman Sachs’ opinion. In arriving at its fairness determination, Goldman Sachs considered the results of all of its analyses and did not attribute any particular weight to any factor or analysis considered by it. Rather, Goldman Sachs made its determination as to fairness on the basis of its experience and professional judgment after considering the results of all of its analyses. No company or transaction used in the above analyses as a comparison is directly comparable to Signify or the Merger.

Goldman Sachs prepared these analyses for purposes of Goldman Sachs’ providing its opinion to the Board of Directors as to the fairness from a financial point of view of the $30.50 in cash per share of Class A Common Stock to be paid to the holders (other than CVS, New Mountain and their respective affiliates) of the outstanding shares of Class A Common Stock pursuant to the Merger Agreement. These analyses do not purport to be appraisals nor do they necessarily reflect the prices at which businesses or securities actually may be sold. Analyses based upon forecasts of future results are not necessarily indicative of actual future results, which may be significantly more or less favorable than suggested by these analyses. Because these analyses are inherently subject to uncertainty, being based upon numerous factors or events beyond the control of the parties or their respective advisors, none of Signify, CVS, Goldman Sachs or any other person assumes responsibility if future results are materially different from those forecast.

The merger consideration was determined through arm’s-length negotiations between Signify and CVS and was approved by the Board of Directors. Goldman Sachs provided advice to Signify during these negotiations.

 

49

Goldman Sachs did not, however, recommend any specific amount of consideration to Signify or the Board of Directors or that any specific amount of consideration constituted the only appropriate consideration for the Merger.

As described above, Goldman Sachs’ opinion to the Board of Directors was one of many factors taken into consideration by the Board of Directors in making its determination to approve the Merger Agreement. The foregoing summary does not purport to be a complete description of the analyses performed by Goldman Sachs in connection with the fairness opinion and is qualified in its entirety by reference to the written opinion of Goldman Sachs attached as Annex B.

Goldman Sachs and its affiliates are engaged in advisory, underwriting and financing, principal investing, sales and trading, research, investment management and other financial and non-financial activities and services for various persons and entities. Goldman Sachs and its affiliates and employees, and funds or other entities they manage or in which they invest or have other economic interests or with which they co-invest, may at any time purchase, sell, hold or vote long or short positions and investments in securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments of Signify, CVS, any of their respective affiliates and third parties, including New Mountain and ARK Investment Management LLC (“ARK Invest”), each a significant stockholder of Signify, and any of their respective affiliates and, as applicable, portfolio companies, or any currency or commodity, or any currency or commodity that may be involved in the Merger.

Goldman Sachs acted as financial advisor to Signify in connection with, and participated in certain of the negotiations leading to, the Merger. Goldman Sachs has provided certain financial advisory and/or underwriting services to Signify and its affiliates from time to time for which the Investment Banking Division of Goldman Sachs has received, and may receive, compensation, including having acted as, including having acted as joint lead arranger and joint bookrunner with respect to Signify’s senior secured first lien term loan facility (aggregate principal amount $350,000,000) in June 2021, and senior secured revolving credit facility (aggregate principal amount of $185,000,000) in June 2021. During the two-year period ended September 2, 2022, Goldman Sachs has recognized compensation for financial advisory and/or underwriting services provided by its Investment Banking Division to Signify and/or its affiliates of approximately $10 million (excluding compensation payable by Signify to Goldman Sachs in connection with the Merger).

Goldman Sachs also has provided certain financial advisory and/or underwriting services to CVS and/or its affiliates from time to time for which Investment Banking Division of Goldman Sachs has received, and may receive, compensation, including having acted as dealer manager with respect to each of CVS’ tender offers for outstanding debt securities of CVS (aggregate principal amount $6,000,000,000) in August 2020, outstanding debt securities of CVS (aggregate principal amount $4,000,000,000) in December 2020, and outstanding debt securities of CVS (aggregate principal amount $2,000,000,000) in August 2021; as bookrunner with respect to each of CVS’ 1.300% Senior Notes due 2027 (aggregate principal amount $1,500,000,000), 1.750% Senior Notes due 2030 (aggregate principal amount $1,250,000,000) and 2.700% Senior Notes due 2040 (aggregate principal amount $1,250,000,000) in August 2020, 1.300% Senior Notes due 2027 (aggregate principal amount $750,000,000) and 1.875% Senior Notes due 2031 (aggregate principal amount $1,250,000,000) in December 2020, and 2.125% Senior Notes due 2031 (aggregate principal amount $1,000,000,000) in August 2021; as sole bookrunner with respect to the catastrophe bonds (aggregate principal amount $200,000,000) of Aetna Life Insurance Company, an affiliate of CVS, in February 2021, and the catastrophe bonds (aggregate principal amount of $200,000,000) of Aetna Inc., an affiliate of CVS, in January 2022; as a participant in each of CVS’ revolving credit facility due May 2025 (aggregate principal amount $2,000,000,000) in May 2019, revolving credit facility due May 2026 (aggregate principal amount $2,000,000,000) in May 2021, and revolving credit facility due May 2027 (aggregate principal amount $2,000,000,000) in May 2022. During the two-year period ended September 2, 2022, Goldman Sachs has recognized compensation for financial advisory and/or underwriting services provided by its Investment Banking Division directly to CVS and/or to its affiliates (including, if applicable, any portfolio companies but excluding, if applicable, New Mountain and ARK Invest and their respective affiliates) of approximately $9 million.

 

50

Goldman Sachs also has provided certain financial advisory and/or underwriting services to New Mountain and/or its affiliates and portfolio companies from time to time for which Investment Banking Division of Goldman Sachs has received, and may receive, compensation, including having acted as financial advisor to CIOX Health LLC, a portfolio company of New Mountain, with respect to its merger with Datavant Holdings, Inc. in July 2021, and to Blue Yonder Holding, Inc. (“Blue Yonder”), a portfolio company of New Mountain, with respect to its sale in September 2021; as bookrunner with respect to the 4.250% Senior Secured Notes due 2026 (aggregate principal amount $750,000,000) issued by subsidiaries of Blue Yonder in July 2020; as bookrunner to Revint Solutions, LLC, a portfolio company of New Mountain, with respect to its term loan B due 2027 (aggregate principal amount $640,000,000) in October 2020; and as bookrunner to Avantor, Inc. (“Avantor”), a portfolio company of New Mountain, with respect to its 4.625% Senior Notes due 2028 (aggregate principal amount $1,550,000,000) in July 2020, 3.875% Senior Notes due 2028 (aggregate principal amount €400,000,000) in July 2020, 2.625% Senior Secured Notes due 2025 (aggregate principal amount €650,000,000) in November 2020, follow-on public offering of 78,726,740 shares of Avantor’s common stock in November 2020, follow-on public offering of 23,809,524 shares of Avantor’s common stock in September 2021, and 3.875% Senior Notes due 2029 (aggregate principal amount $800,000,000) in October 2021. During the two-year period ended September 2, 2022, Goldman Sachs has recognized compensation for financial advisory and/or underwriting services provided by its Investment Banking Division directly to New Mountain and/or to its affiliates (including, if applicable, any portfolio companies but excluding Signify and its subsidiaries) of approximately $75 million.

Goldman Sachs may also in the future provide financial advisory and/or underwriting services to Signify, CVS, New Mountain or ARK Invest or their respective affiliates and, as applicable, portfolio companies, for which the Investment Banking Division of Goldman Sachs may receive compensation. Affiliates of Goldman Sachs also may have co-invested with New Mountain, ARK Invest and their respective affiliates from time to time and may have invested in limited partnership units of affiliates of New Mountain and/or ARK Invest from time to time and may do so in the future.

The Board of Directors selected Goldman Sachs as one of its financial advisors because it is an internationally recognized investment banking firm that has substantial experience in transactions similar to the Merger. Pursuant to a letter agreement dated August 22, 2022, Signify engaged Goldman Sachs to act as its financial advisor in connection with the Merger. The engagement letter between Signify and Goldman Sachs provides for a transaction fee that is estimated, based on the information available as of the date of announcement, at approximately $58 million, all of which is payable upon consummation of the Merger. In addition, Signify has agreed to reimburse Goldman Sachs for certain of its expenses, including attorneys’ fees and disbursements, and to indemnify Goldman Sachs and related persons against various liabilities, including certain liabilities under the federal securities laws.

Opinion of Deutsche Bank Securities Inc.

Pursuant to an engagement letter dated as of August 22, 2022, Deutsche Bank acted as financial advisor to Signify in connection with the Merger. At the September 2, 2022 meeting of the Board of Directors, Deutsche Bank delivered its opinion, subsequently confirmed in writing, to the effect that, as of the date of such opinion, based upon and subject to the assumptions, limitations, qualifications and conditions set forth in the opinion, the Merger Consideration was fair, from a financial point of view, to the Signify Stockholders, excluding CVS, New Mountain and their respective affiliates.

The full text of Deutsche Bank’s written opinion, dated as of September 2, 2022, which sets forth, among other things, the assumptions made, matters considered and limitations, qualifications and conditions of the review undertaken by Deutsche Bank in connection with its opinion, is attached as Annex C to this proxy statement and is incorporated herein by reference in its entirety. Deutsche Bank’s opinion has been approved and authorized for issuance by a Deutsche Bank fairness opinion review committee and is addressed to, and is for the use and benefit of, the Board of Directors in connection with and for the purpose of its

 

51

evaluation of the Merger. Deutsche Bank’s opinion is limited to the fairness, as of the date of the opinion, of the Merger Consideration, from a financial point of view, to the Signify Stockholders, excluding CVS, New Mountain and their respective affiliates. Deutsche Bank’s opinion does not address any other terms of the Merger or the Merger Agreement, nor does it address the terms of any other agreement entered into or to be entered into in connection with the Merger. Deutsche Bank was not asked to, and Deutsche Bank’s opinion did not, address the fairness of the Merger, or any consideration received in connection therewith, to the holders of any other class of securities, creditors or other constituencies of Signify, nor did it address the fairness of the contemplated benefits of the Merger. Deutsche Bank expressed no opinion as to the merits of the underlying decision by Signify to engage in the Merger or the relative merits of the Merger as compared to any alternative transactions or business strategies. Deutsche Bank did not express any opinion, and Deutsche Bank’s opinion did not constitute a recommendation, as to how any Signify Stockholders should vote or act with respect to the Merger or any other matter. Deutsche Bank did not express any view or opinion as to the fairness, financial or otherwise, of the amount or nature of any compensation payable to or to be received by any of Signify’s officers, directors, or employees, or any class of such persons, in connection with the Merger relative to the Merger Consideration to be received by the Signify Stockholders. The summary of Deutsche Bank’s opinion set forth in this proxy statement is qualified in its entirety by reference to the full text of Deutsche Bank’s opinion set forth as Annex C. Signify Stockholders are urged to read Deutsche Bank’s opinion in its entirety.

In connection with Deutsche Bank’s role as financial advisor to Signify, and in arriving at its opinion, Deutsche Bank has, among other things, reviewed certain publicly available financial and other information concerning Signify and certain internal analyses, financial forecasts and other information relating to Signify prepared and furnished to Deutsche Bank by the management of Signify and approved for Deutsche Bank’s use by Signify. Deutsche Bank also held discussions with certain senior officers and other representatives and advisors of Signify regarding the businesses and prospects of Signify. In addition, Deutsche Bank has:

 

•

reviewed the reported prices and trading activity for Class A Common Stock;

 

•

compared certain financial and stock market information for Signify with, to the extent publicly available, similar information for certain other companies Deutsche Bank considered relevant whose securities are publicly traded;

 

•

reviewed, to the extent publicly available, the financial terms of certain recent business combinations which it deemed relevant;

 

•

reviewed the Merger Agreement and certain related documents, including the Voting Agreement and the TRA Amendment; and

 

•

performed such other studies and analyses and considered such other factors as it deemed appropriate.

In arriving at its opinion, Deutsche Bank has not taken into account the effect of the TRA (as defined in this proxy statement) or any tax attributes subject thereto.

In preparing its opinion, Deutsche Bank did not assume responsibility for the independent verification of, and did not independently verify, any information, whether publicly available or furnished to it, concerning Signify, including, without limitation, any financial information considered in connection with the rendering of its opinion. Accordingly, for purposes of its opinion, with the knowledge and permission of the Board of Directors, Deutsche Bank assumed and relied upon the accuracy and completeness of all such information. Deutsche Bank did not conduct a physical inspection of any of the properties or assets and did not prepare, obtain or review any independent evaluation or appraisal of any of the assets or liabilities (including any contingent, derivative or off-balance sheet assets or liabilities) of Signify or CVS or any of their respective subsidiaries, nor did Deutsche Bank evaluate the solvency or fair value of Signify under any law relating to bankruptcy, insolvency or similar matters. With respect to the financial forecasts made available to Deutsche Bank and used in its analyses, Deutsche Bank, with the knowledge and permission of the Board of Directors, assumed that such forecasts had been reasonably prepared on bases reflecting the best currently available estimates and judgments

 

52

of the management of Signify as to the matters covered thereby. In rendering its opinion, Deutsche Bank expressed no view as to the reasonableness of such forecasts and projections or the assumptions on which they are based. Deutsche Bank’s opinion was necessarily based upon the economic, market and other conditions as in effect on, and the information made available to Deutsche Bank as of, the date of such opinion. Deutsche Bank expressly disclaimed any undertaking or obligation to advise any person of any change in any fact or matter affecting Deutsche Bank’s opinion of which it becomes aware after the date of the opinion.

For purposes of rendering its opinion, Deutsche Bank, with the knowledge and permission of the Board of Directors, has assumed that, in all respects material to its analysis:

 

•

the Merger will be consummated in accordance with the terms of the Merger Agreement, without any waiver, modification or amendment of any term, condition or agreement that would be material to Deutsche Bank’s analysis; and

 

•

all material governmental, regulatory or other approvals and consents required in connection with the consummation of the Merger will be obtained and that in connection with obtaining any necessary governmental, regulatory or other approvals and consents, no restrictions, terms or conditions will be imposed that would be material to Deutsche Bank’s analysis.

Deutsche Bank is not a legal, regulatory, tax or accounting expert and has relied on the assessments made by Signify and its other advisors with respect to these issues.

Deutsche Bank’s Financial Analyses

The following is a summary of the material financial analyses contained in the presentation that was made by Deutsche Bank to the Board of Directors on September 2, 2022, and that were used by Deutsche Bank in connection with rendering its opinion described above. The following summary, however, does not purport to be a complete description of the financial analyses performed by Deutsche Bank, nor does the order of the analyses described below represent the relative importance or weight given to those analyses by Deutsche Bank or the Board of Directors. Considering the data below without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of Deutsche Bank’s financial analyses. Certain financial, comparative and other analyses summarized below include information presented in tabular format. The tables must be read together with the text of each summary and are alone not a complete description of Deutsche Bank’s financial analyses. Except as otherwise noted, the following quantitative information, to the extent that it is based on market data, is based on market data as it existed on or before September 1, 2022, and is not necessarily indicative of current market conditions.

In preparing its analyses, Deutsche Bank utilized calculations of, among other things, adjusted earnings before interest, taxes, depreciation and amortization (“Adjusted EBITDA”), calculated by starting with earnings before interest, taxes, depreciation and amortization, including pro forma adjustments (as defined below) and excluding non-recurring items and stock-based compensation expense, as applicable. Where applicable, Deutsche Bank included in its calculations material pro forma adjustments for acquisitions and divestitures or other material corporate events (“pro forma adjustments”) and closing share prices as of September 1, 2022. For information regarding Signify’s management’s calculation of Signify’s Adjusted EBITDA, please see “The Merger–Certain Unaudited Prospective Financial Information”.

Analysis of Selected Publicly Traded Companies

Deutsche Bank compared certain financial information and commonly used valuation measurements for Signify to corresponding information and measurements of certain publicly traded companies that Deutsche Bank considered relevant for Signify. In determining the universe of comparable companies for Signify, Deutsche Bank considered a variety of factors, based on publicly available information, including, but not limited

 

53

to, similarity in business and financial profiles, revenue and revenue growth rates, profitability, scale and other similar operating characteristics. However, because of the inherent differences between the businesses, operations and prospects of Signify and those of the selected comparable companies, Deutsche Bank believed that it was inappropriate to, and therefore did not, rely solely on the quantitative results of the selected publicly traded company analysis. Accordingly, Deutsche Bank also made qualitative judgments concerning differences between the business, financial and operating characteristics and prospects of Signify and the selected comparable companies that could affect the values of Signify in order to provide a context in which to consider the results of the quantitative analysis for Signify. Deutsche Bank selected comparable companies in the healthcare services industry.

To calculate the trading multiples for the selected companies, Deutsche Bank used publicly available information concerning historical and projected financial performance, including published historical financial information and forecasted estimates based on widely used industry data and research providers (from sources including FactSet and Wall Street research) and public filings made by the selected companies. Using such financial information, Deutsche Bank calculated the following multiples for each of the selected companies: (i) the ratio of total enterprise value to estimated calendar year 2022 Adjusted EBITDA (“TEV/2022E EBITDA”) and (ii) the ratio of total enterprise value to estimated calendar year 2023 Adjusted EBITDA (“TEV/2023E EBITDA”).

 

Company		TEV / 2022E EBITDA				TEV / 2023E EBITDA
Evolent Health, Inc.			35.6x				29.1x
Sharecare, Inc.			30.4x				12.9x
Cano Health, Inc.			25.1x				19.3x
Option Care Health, Inc.			19.3x				17.7x
Amedisys, Inc.			15.2x				13.8x

Based in part upon the TEV/2022E EBITDA and TEV/2023E EBITDA multiples of the selected companies described above and taking into account its professional judgment and experience, Deutsche Bank calculated ranges of estimated implied value per share of Class A Common Stock by:

 

•

applying a range of multiples of TEV/2022E EBITDA of 16.0x to 35.0x to Signify’s management’s estimates of Signify’s calendar year 2022 Adjusted EBITDA, resulting in a range of implied values of $14.56 to $31.30 per share of Class A Common Stock; and

 

•

applying a range of multiples of TEV/2023E EBITDA of 13.0x to 28.0x to Signify’s management’s estimates of Signify’s calendar year 2023 Adjusted EBITDA, resulting in a range of implied values of $16.72 to $35.45 per share of Class A Common Stock.

 

54

Analysis of Selected Precedent Transactions

Deutsche Bank reviewed the financial terms, to the extent publicly available, of nine home-based and technology-enabled healthcare services transactions since July 2015 that Deutsche Bank deemed, in its professional judgment and experience, as comparable to Signify in certain business and financial respects. In its analysis, Deutsche Bank derived and compared, among other things, the ratio of total enterprise value to last-twelve-months Adjusted EBITDA, or full-year Adjusted EBITDA where needed due to availability of information (“TEV/LTM EBITDA”), for each of the selected transactions. To calculate the comparative data for the selected transactions, Deutsche Bank used publicly available information from public filings, FactSet and Moody’s reports. The transactions reviewed and analysis indicated the following:

 

Month and Year Announced		Target/Acquiror		TEV/LTM EBITDA
Home-Based Healthcare Services Transactions
August 2016		Matrix Medical Network / Frazier Healthcare Partners			10.4x
April 2018		CURO Health Services / Humana Inc., TPG Capital and Welsh, Carson, Anderson & Stowe			14.1x
April 2021		Kindred at Home / Humana Inc.			12.5x
March 2022		LHC Group, Inc. / UnitedHealth Group Inc.			22.7x
Tech-Enabled Healthcare Services Transactions
July 2015		Altegra Health / Emdeon Inc.			15.4x
June 2018		Cotiviti Holdings, Inc. / Verscend Technologies, Inc. (Veritas Capital portfolio company)			18.0x
December 2020		HMS Holdings Corp. / Gainwell Acquisition Corp. (Veritas Capital portfolio company)			21.1x
August 2021		Inovalon Holdings, Inc. / Consortium including Nordic Capital and Insight Partners as lead co-investors			29.0x
June 2022		Convey Health Solutions / TPG Capital			15.7x

Based upon the results of the selected precedent transactions analysis, Deutsche Bank calculated ranges of estimated implied value per share of Class A Common Stock by applying multiples of TEV/LTM EBITDA of 14.0x to 29.0x to Signify’s last-twelve-months Adjusted EBITDA for the period ending June 30, 2022, as provided by Signify’s management, resulting in a range of implied values of $11.69 to $23.03 per share of Class A Common Stock.

Discounted Cash Flow Analysis

Deutsche Bank performed a discounted cash flow analysis of Signify on a standalone basis using financial forecasts, data and other information provided by Signify’s management to calculate a range of implied equity values per share of Class A Common Stock as of June 30, 2022, using the mid-year convention.

In performing the discounted cash flow analysis, Deutsche Bank applied a range of discount rates of 9.6% to 10.7% to the sum of (i) unlevered free cash flows estimated to be generated by Signify for the fiscal years 2022 to 2031, as reflected in the financial forecasts and data provided by Signify’s management, and (ii) estimated terminal values of Signify calculated using perpetuity growth rates ranging from 2.5% to 3.5%. As reflected in the financial forecasts and data provided by Signify’s management, stock-based compensation was treated as a cash expense and unlevered free cash flow was calculated as (a) Adjusted EBITDA, less (b) stock-based compensation, less (c) cash taxes, less (d) capital expenditures and less (e) changes in net working capital, in each case as provided to Deutsche Bank by Signify’s management. For additional information regarding the financial data provided by Signify’s management underlying these calculations, please see “The Merger–Certain Unaudited Prospective Financial Information”.

Deutsche Bank derived the foregoing range of discount rates using a weighted average cost of capital analysis, taking into account its professional judgment and experience, based on a risk free rate of 3.6% using

 

55

the 20-year U.S. government bond yield as of September 1, 2022, the cost of debt and certain other financial metrics, including betas, for Signify and the other selected companies described above.

The analysis resulted in a range of implied present values per share of Class A Common Stock of $23.96 to $31.67 per share.

Additional Informational Analyses

Deutsche Bank observed certain additional information that, based on Deutsche Bank’s professional judgment and experience, Deutsche Bank did not consider to be part of its financial analysis with respect to its opinion but was noted for informational purposes, including the following:

Historical Trading Range Analysis

Deutsche Bank performed a trading range analysis with respect to the historical share prices of Class A Common Stock. Deutsche Bank noted that the low and high prices per share of Class A Common Stock during the 52-week period ending on August 1, 2022, the last day prior to market rumors of a possible sale of Signify, were $11.19 and $26.84. As of August 1, 2022, the closing price per share of Class A Common Stock was $17.15, and as of September 1, 2022, the closing price per share of Class A Common Stock was $28.39.

Deutsche Bank noted that the trading range analysis was presented merely for reference purposes only, and was not relied upon for valuation purposes.

Wall Street Analyst Estimates

Deutsche Bank reviewed the stock price targets for Class A Common Stock in several recently published, publicly available research analysts’ reports, which indicated low and high twelve-month-forward stock price targets ranging from $20.00 to $35.00 per share. These price targets, when discounted back twelve months using a 10.2% cost of equity (based on Deutsche Bank’s judgment of Signify’s estimated weighted average cost of capital), resulted in a range of analyst future stock price targets of $18.16 to $31.77 per share.

Deutsche Bank noted that the analyst price targets were presented merely for reference purposes only, and were not relied upon for valuation purposes.

Premia Paid Analysis

Deutsche Bank performed a premia paid analysis based upon the premia paid in certain merger and acquisition transactions that were announced during the time period from January 1, 2013 through July 26, 2022. Deutsche Bank considered 162 precedent transactions involving a U.S. target with a total enterprise value greater than $5 billion and all-cash consideration. Deutsche Bank analyzed the transactions to determine the premia paid for the target as determined using the stock price on the date that is one day prior to the announcement of each such deal or market rumors of a possible sale. Based on this analysis, Deutsche Bank selected a representative premia range of 20.0-50.0% and applied this range to $17.15, the closing price per share of Class A Common Stock on August 1, 2022, the last day prior to market rumors of a possible sale of Signify, to derive an implied equity value per share range of $20.58 to $25.73. All premia considered were based on publicly available information from FactSet and Wall Street research available at the time of announcement of such transaction, without taking into account differing market conditions during the period during which the transactions occurred.

Deutsche Bank noted that the premia paid analysis was presented merely for reference purposes only, and was not relied upon for valuation purposes.

Miscellaneous

The preparation of a fairness opinion is a complex process involving the application of subjective business judgment in determining the most appropriate and relevant methods of financial analysis and the application of

 

56

those methods to the particular circumstances and, therefore, is not readily susceptible to a summary description. Deutsche Bank believes that its analyses must be considered as a whole and that considering any portion of such analyses and of the factors considered without considering all analyses and factors could create a misleading view of the process underlying the opinion. In arriving at its fairness determination, Deutsche Bank did not assign specific weights to any particular analyses.

In conducting its analyses and arriving at its opinion, Deutsche Bank utilized a variety of generally accepted valuation methods. The analyses were prepared solely for the purpose of enabling Deutsche Bank to provide its opinion to the Board of Directors as to the fairness, from a financial point of view, to the Signify Stockholders (other than CVS, New Mountain and their respective affiliates), of the Merger Consideration. Analyses based on estimates or forecasts of future results are not necessarily indicative of actual past or future values or results, which may be significantly more or less favorable than suggested by such analyses. In addition, analyses relating to the value of the businesses of Signify do not purport to be appraisals or to reflect the prices at which the businesses of Signify could actually be sold. Because such analyses are inherently subject to uncertainty, being based upon numerous factors or events beyond the control of Signify or its advisors, neither Signify nor Deutsche Bank nor any other person assumes responsibility if future results or actual values are materially different from these forecasts or assumptions.

The terms of the Merger were determined through negotiations between Signify and CVS and were approved by the Board of Directors. Although Deutsche Bank provided advice to the Board of Directors during the course of these negotiations, the decision to enter into the Merger was solely that of the Board of Directors. As described above, the opinion and presentation of Deutsche Bank to the Board of Directors was only one of a number of factors taken into consideration by the Board of Directors in making its determination to approve the Merger. Deutsche Bank’s opinion was provided to the Board of Directors to assist it in connection with its consideration of the Merger and does not constitute a recommendation to any Signify Stockholders as to how to vote on any matter.

Additional Information

The Board of Directors selected Deutsche Bank as its financial advisor in connection with the Merger based on Deutsche Bank’s qualifications, expertise, reputation and experience in mergers and acquisitions. Signify has retained Deutsche Bank pursuant to an engagement letter dated as of August 22, 2022, as amended. As compensation for Deutsche Bank’s services in connection with the Merger, Signify has agreed to pay to Deutsche Bank the following fees:

 

•

an opinion fee of $2,500,000, which became payable upon Deutsche Bank’s delivery of its written opinion, dated as of September 2, 2022, to Signify;

 

•

a transaction fee contingent on the consummation of the Merger of approximately $24 million, equal to 0.3% of the value of the aggregate consideration (as defined in the engagement letter), which is estimated to be approximately $8 billion as of September 2, 2022; provided that the transaction fee shall be reduced by the opinion fee described in the preceding bullet; and

 

•

if the Merger is not consummated and Signify or its affiliates are entitled to any payment (including, without limitation, a break-up fee, lock-up option, topping fee or other termination fee) (collectively, a “Termination Fee”), a fee equal to 4.5% of such Termination Fee, net of Signify’s out-of-pocket expenses incurred in connection with the termination of the Merger Agreement, the Merger or the collection of such Termination Fee, at such time as such Termination Fee is received by Signify or its affiliates; provided that such fee shall not be greater than 50% of the transaction fee that would have been payable had the Merger been consummated; and provided further that the transaction fee shall be reduced by the amount of any previously paid opinion fee, without duplication of any other offset of such opinion fee.

Regardless of whether the Merger is consummated, Signify has agreed to reimburse Deutsche Bank for its reasonable, documented out-of-pocket fees, expenses and disbursements of Deutsche Bank’s counsel and all of

 

57

Deutsche Bank’s reasonable travel and other out-of-pocket expenses incurred in connection with the Merger or otherwise arising out of the engagement of Deutsche Bank under the engagement letter; provided that any such expenses in excess of $200,000 in the aggregate will only be reimbursed if incurred with the prior written consent of Signify. Signify has also agreed to indemnify Deutsche Bank and certain related persons to the full extent lawful against certain liabilities arising out of its engagement or the Merger.

Deutsche Bank is an internationally recognized investment banking firm experienced in providing advice in connection with mergers and acquisitions and related transactions. Deutsche Bank is an affiliate of Deutsche Bank AG, which, together with its affiliates, are referred to in this proxy statement as the DB Group. One or more members of the DB Group have, from time to time, provided, and are currently providing, investment banking, commercial banking (including extension of credit) and other financial services to Signify or its affiliates for which they have received, and in the future may receive, compensation, including advising Signify in connection with its initial public offering of Class A Common Stock in February 2021. During the two-year period preceding delivery of Deutsche Bank’s opinion, aggregate fees recognized by the DB Group from Signify were approximately 2.3 million euros. During such period, the DB Group was not engaged to provide investment and commercial banking services or other financial services to CVS, New Mountain or their respective affiliates and did not receive any compensation from CVS, New Mountain or their respective affiliates. In addition, the DB Group may also provide investment and commercial banking services to CVS and Signify in the future, for which Deutsche Bank would expect the DB Group to receive compensation. In the ordinary course of business, members of the DB Group may actively trade in the securities and other instruments and obligations of CVS, Signify and their respective affiliates for their own accounts and for the accounts of their customers. Accordingly, the DB Group may at any time hold a long or short position in such securities, instruments and obligations.

Certain Unaudited Prospective Financial Information

Signify does not, as a matter of course, make public projections as to Signify’s future financial performance, due to, among other reasons, the uncertainty, unpredictability and subjectivity of the underlying assumptions and estimates. In connection with Signify’s strategic planning process and the Board of Directors’ evaluation of the Merger, as described further in the section of this proxy statement captioned “The Merger—Background of the Merger,” Signify’s management team prepared and reviewed with the Board of Directors certain unaudited prospective financial information of Signify for fiscal years 2022 through 2025 (which we refer to as “Management’s Projections”). The Board of Directors approved Management’s Projections, authorized the use of Management’s Projections by the financial advisors in preparing any fairness opinions, authorized Signify’s management team to take any further steps that might be necessary to carry out that intent and provided Management’s Projections to CVS. Consistent with the Board of Directors’ authorization, Signify’s management team extrapolated Management’s Projections through 2031 based on various assumptions for EBITDA margins, revenue growth and other factors which Signify’s management team deemed reasonable (which we refer to collectively with Management’s Projections as the “Unaudited Prospective Financial Information”).

The Unaudited Prospective Financial Information was prepared for internal use only and not for public disclosure and was provided to the Board of Directors for the purposes of considering, analyzing and evaluating the Merger.

The Unaudited Prospective Financial Information was also provided to, and approved by Signify for use by, Goldman Sachs and Deutsche Bank, Signify’s financial advisors, for the purposes of Goldman Sachs’s and Deutsche Bank’s financial analyses and fairness opinions in connection with the Merger (as described in more detail in the section of this proxy statement captioned “The Merger—Opinion of Goldman Sachs & Co. LLC” and “The Merger—Opinion of Deutsche Bank Securities Inc.”). With Signify’s consent, Goldman Sachs and Deutsche Bank assumed that the Unaudited Prospective Financial Information was reasonably prepared on bases reflecting the best then available estimates and judgments of Signify’s management team as to Signify’s future financial performance.

 

58

The following table presents a summary of Management’s Projections.

 

		Fiscal Year Ending December 31,
$ in millions		2022E				2023E				2024E				2025E
Revenue1		$	851			$	1,079			$	1,331			$	1,583
Adjusted Gross Profit		$	425			$	546			$	680			$	816
Adjusted EBITDA2		$	222			$	315			$	411			$	511

 

1	Excludes (a) BPCI-A Business, (b) Episodes of Care Business and (c) Community Business and includes financial impact related to customer equity appreciation rights.

2

Defined as net income attributable to Signify, before interest expense, loss on extinguishment of debt, income tax expense, net depreciation and amortization, other income net, as adjusted by excluding (i) any fair value adjustment of the equity appreciation right, (ii) stock-based compensation, (iii) customer equity appreciation rights, (iv) transaction related expenses, (v) loss on contingent consideration, (vi) SEU expense, (vii) non-recurring expenses, (viii) asset impairment, (ix) restructuring expense, and (x) stranded costs and the reversal of the BPCI-A business income/(losses).

The following table presents a summary of the Unaudited Prospective Financial Information.

 

		Fiscal Year Ending December 31,
$ in millions		6/30/22 Stub				2023E				2024E				2025E				2026E				2027E				2028E				2029E				2030E				2031E
Total Revenue1		$	439			$	1,079			$	1,331			$	1,583			$	1,851			$	2,127			$	2,402			$	2,662			$	2,897			$	3,107
Adjusted EBITDA2		$	107			$	315			$	411			$	511			$	617			$	732			$	849			$	967			$	1,054			$	1,131
Unlevered Free Cash Flow		$	61			$	160			$	217			$	285			$	358			$	435			$	516			$	600			$	663			$	720

 

1	Excludes (a) BPCI-A Business, (b) Episodes of Care Business and (c) Community Business and includes financial impact related to customer equity appreciation rights.

2

Defined as net income attributable to Signify, before interest expense, loss on extinguishment of debt, income tax expense, net depreciation and amortization, other income net, as adjusted by excluding (i) any fair value adjustment of the equity appreciation right, (ii) stock-based compensation, (iii) customer equity appreciation rights, (iv) transaction related expenses, (v) loss on contingent consideration, (vi) SEU expense, (vii) non-recurring expenses, (viii) asset impairment, (ix) restructuring expense, and (x) stranded costs and the reversal of the BPCI-A business income/(losses).

Important Information Regarding the Unaudited Prospective Financial Information

The Unaudited Prospective Financial Information was developed based on Signify’s management team’s knowledge of and assumptions with respect to Signify’s business, including Signify’s in-home evaluation products and services. The Unaudited Prospective Financial Information was developed without giving effect to the Merger, including any impact of the negotiation or execution of the Merger Agreement or the Merger, the expenses that have already or may be incurred in connection with completing the Merger or any changes to Signify’s operations or strategy that may be implemented during the pendency of or following the consummation of the Merger. The Unaudited Prospective Financial Information also does not consider the effect of any failure of the Merger to be completed; it should not be viewed as accurate or continuing in that context.

The Unaudited Prospective Financial Information was not prepared with a view toward public disclosure or complying with accounting principles generally accepted in the United States (which we refer to as “GAAP”). In addition, the Unaudited Prospective Financial Information was not prepared with a view toward complying with the guidelines established by the SEC or the American Institute of Certified Public Accountants with respect to prospective financial information. Neither Signify’s independent registered public accounting firm nor any other

 

59

independent accountants have (1) compiled, reviewed, audited, examined or performed any procedures with respect to the Unaudited Prospective Financial Information, (2) expressed any opinion or any other form of assurance on such information or the achievability of the Unaudited Prospective Financial Information or (3) assumed any responsibility for the Unaudited Prospective Financial Information.

Because the Unaudited Prospective Financial Information reflects estimates and judgments, it is susceptible to sensitivities and assumptions, as well as multiple interpretations based on actual experience and business developments. The Unaudited Prospective Financial Information also covers multiple years, and such information by its nature becomes less predictive with each succeeding year. The Unaudited Prospective Financial Information is not, and should not be considered to be, a guarantee of future operating results. Further, the Unaudited Prospective Financial Information is not fact and should not be relied upon as being necessarily indicative of Signify’s future results.

Although the Unaudited Prospective Financial Information is presented with numerical specificity, it reflects numerous assumptions and estimates as to future events. The Unaudited Prospective Financial Information reflects assumptions and uncertainties that are subject to change. Important factors that may affect actual results and cause the Unaudited Prospective Financial Information not to be achieved are described in various risk factors described in the sections of this proxy statement captioned “Cautionary Statement Regarding Forward-Looking Statements,” and in Signify’s other filings with the SEC, including those listed under the section captioned “Where You Can Find More Information.” All of these factors are difficult to predict, and many of them are outside of Signify’s control. As a result, there can be no assurance that the Unaudited Prospective Financial Information will be realized, and actual results may be materially better or worse than those contained in the Unaudited Prospective Financial Information, whether or not the Merger is consummated. The Unaudited Prospective Financial Information also reflects assumptions as to certain business decisions that are subject to change. The Unaudited Prospective Financial Information may differ from publicized analyst estimates and forecasts and does not consider any events or circumstances after the date that it was prepared, including the announcement of the entry into the Merger Agreement. The Unaudited Prospective Financial Information has not been updated or revised to reflect information or results after the date it was prepared or as of the date of this proxy statement. Except to the extent required by applicable federal securities laws, Signify does not intend to update or otherwise revise the Unaudited Prospective Financial Information to reflect circumstances existing after the date that such information was prepared or to reflect the occurrence of future events. Signify has or may report results of operations for periods included in the Unaudited Prospective Financial Information that were or will be completed following the preparation of the Unaudited Prospective Financial Information. Stockholders and investors are urged to refer to Signify’s periodic filings with the SEC for information on Signify’s actual historical results.

Certain of the financial measures included in the Unaudited Prospective Financial Information are “non-GAAP financial measures.” These are financial performance measures that are not calculated in accordance with GAAP. These non-GAAP financial measures should not be viewed as a substitute for GAAP financial measures and may be different from non-GAAP financial measures used by other companies. Furthermore, there are limitations inherent in non-GAAP financial measures because they exclude charges and credits that are required to be included in a GAAP presentation. In certain circumstances, including those applicable to the Unaudited Prospective Financial Information, financial measures included in forecasts provided to a financial advisor and a board of directors in connection with a business combination transaction are excluded from the definition of “non-GAAP financial measures” under applicable SEC rules and regulations. As a result, the Unaudited Prospective Financial Information is 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 provided to or relied upon by the Board of Directors or Goldman Sachs and Deutsche Bank. Accordingly, no reconciliation of the financial measures included in the Unaudited Prospective Financial Information is provided in this proxy statement.

The Unaudited Prospective Financial Information constitutes forward-looking statements. By including the Unaudited Prospective Financial Information in this proxy statement, neither Signify nor any of its

 

60

representatives has made or makes any representation to any person regarding Signify’s ultimate performance as compared to the information contained in the Unaudited Prospective Financial Information. The inclusion of the Unaudited Prospective Financial Information should not be regarded as an indication that the Board of Directors, Signify or any other person considered, or now considers, the Unaudited Prospective Financial Information to be predictive of actual future results. Further, the inclusion of the Unaudited Prospective Financial Information in this proxy statement does not constitute an admission or representation by Signify that the information presented is material. The Unaudited Prospective Financial Information is included in this proxy statement solely to give Signify’s stockholders access to the information that was provided to the Board of Directors and Goldman Sachs and Deutsche Bank. The Unaudited Prospective Financial Information is not included in this proxy statement in order to influence any Signify stockholder to make any investment decision with respect to the Merger, including whether or not to seek appraisal rights with respect to their shares.

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

In considering the recommendation of the Board of Directors that the Signify Stockholders should vote to approve the proposal to adopt the Merger Agreement, the Signify Stockholders should be aware that the executive officers and directors of Signify have certain interests in the Merger that may be different from, or in addition to, the interests of the Signify Stockholders generally, including those items listed below. The Board of Directors was aware of these interests and considered them, among other matters, in approving the Merger Agreement and the Transactions, including the Merger, and in making their recommendation that the Signify Stockholders adopt the Merger Agreement, particularly:

These interests include:

 

•

The accelerated vesting and payment in respect of Cash-Out Stock Options, Cash-Out RSUs, and Aggregator Units at the Closing;

 

•

The Rollover Stock Options and Rollover RSUs that will be converted at Closing into stock options and restricted stock units, respectively, with respect to CVS Health Stock of substantially equivalent value, and as a result of the Transactions and pursuant to the terms of the applicable award agreements, such awards will be eligible for accelerated vesting upon certain qualifying terminations of employment following the Closing;

 

•

The receipt of any payments pursuant to the terms of certain transaction and retention bonus agreements;

 

•

The payment of any annual bonus at target with respect to fiscal year 2022, regardless of actual performance level; and

 

•

Continued indemnification and directors’ and officers’ liability insurance to be provided by the Surviving Corporation.

Arrangements with CVS

As of the date of this proxy statement, none of our executive officers has entered into any agreement with CVS or any of its affiliates regarding employment with, or the right to purchase or participate in the equity of, the Surviving Corporation or one or more of its affiliates (other than any right to purchase or participate in the equity of CVS or its affiliates resulting from the treatment in the Merger of Rollover Stock Options and Rollover RSUs). Prior to and following the Closing, however, certain of our executive officers may have discussions, and following the Closing, may enter into agreements with, CVS or Merger Subsidiary, their Subsidiaries or their respective affiliates regarding employment with, or the right to purchase or participate in the equity of, the Surviving Corporation or one or more of its affiliates.

 

61

Outstanding Shares Held by Executive Officers and Directors

Executive officers and directors of Signify who own shares of Class A Common Stock will receive the same cash consideration on the same terms and conditions as the other Signify Stockholders (i.e., the Per Share Consideration of $30.50 per share). As of the Record Date, the executive officers and directors of Signify beneficially owned, in the aggregate, 502,830 shares of Class A Common Stock (which excludes shares of Class A Common Stock subject to outstanding Company Awards and purchase rights under the Company ESPP).

The following table sets forth (i) the number of shares of Class A Common Stock beneficially owned as of the Record Date and assuming the exchange of Class A Units for Class A Common Stock occurs immediately prior to the Merger, by each of our executive officers and directors (which excludes shares of Class A Common Stock subject to outstanding Company Awards and purchase rights under the Company ESPP) and (ii) the aggregate cash consideration that would be payable for such shares of Class A Common Stock pursuant to the Merger based on the Per Share Consideration of $30.50.

 

Name of Executive Officer or Director who hold Class A Common Stock		Number of Shares (#)				Cash Consideration for Shares ($)
Kyle Armbrester			22,220				677,710
Peter Boumenot			54,601				1,665,331
Laurel Douty			10,000				305,000
Adam McAnaney			37,628				1,147,654
David Pierre			13,200				402,600
Marc Rothman, MD			1,000				30,500
Steven Senneff			150,683				4,595,832
Taj J. Clayton			10,229				311,985
Brandon H. Hull			21,816				665,388
Vivian E. Riefberg			21,816				665,388
Heather Dixon			15,002				457,561
Arnold Goldberg			16,817				512,919
Jerome Gronniger			127,818				3,898,449
All executive officers and directors who hold Class A Common Stock as a group			502,830				15,336,317

 

62

Treatment of Aggregator Units

As described in further detail above, in connection with the Transaction, each Aggregator Unit will be exchanged immediately prior to the Effective Time for a share of Class A Common Stock held by Aggregator LLC, which will be canceled and converted into the right to receive the Per Share Consideration of $30.50.

The following table sets forth (i) the number of vested Aggregator Units owned as of the Record Date, by each of our executive officers and directors, (ii) the number of unvested Aggregator Units owned as of the Record Date, by each of our executive officers and directors (which will become vested in the transaction due to the terms of the applicable award agreement (including as a result of satisfying performance conditions in connection with the receipt of cash by certain of our shareholders in connection with the Transactions) and (iii) the aggregate cash consideration that would be payable for such Aggregator Units (assuming that the exchange into shares of Class A Common Stock has been effectuated) based on the Per Share Consideration of $30.50.

 

Name of Executive Officer or Director who hold Aggregator Units		Number of Vested Aggregator Units (#)				Cash Consideration for Vested Aggregator Units ($)				Number of Unvested Aggregator Units (#)				Cash Consideration for Unvested Aggregator Units ($)				Total Cash Consideration for Aggregator Units in Merger ($)
Kyle Armbrester			4,112,452				125,429,786				1,878,626				57,298,093				182,727,879
Josh Builder			36,252				1,105,686				108,759				3,317,150				4,422,836
Laurel Douty			36,260				1,105,930				108,782				3,317,851				4,423,781
Adam McAnaney			6,042				184,281				18,131				552,996				737,277
David Pierre			334,912				10,214,816				437,963				13,357,872				23,572,688
Marc Rothman, MD			30,208				921,344				90,629				2,764,185				3,685,529
Steven Senneff			190,116				5,798,538				316,859				9,664,200				15,462,738
Taj J. Clayton			6,042				184,281				18,131				552,996				737,277
Brandon H. Hull			412,200				12,572,100				618,300				18,858,150				31,430,250
Kevin M. McNamara			616,787				18,812,004				644,063				19,643,922				38,455,925
Vivian E. Riefberg			6,042				184,281				18,131				552,996				737,277
All executive officers and directors who hold Aggregator Units as a group			5,787,313			$	176,513,047				4,258,374				129,880,411				306,393,457

 

63

Treatment of Company Awards

Treatment of Cash-Out Stock Options

At the Effective Time, each Cash-Out Stock Option will be canceled and converted into the right of the holder thereof to receive, without interest, an amount in cash determined by multiplying (i) the excess of $30.50 (i.e., the Per Share Consideration) over the exercise price of such Cash-Out Stock Option by (ii) the number of shares of Class A Common Stock subject to such Cash-Out Stock Option as of immediately prior to the Effective Time.

The table below sets forth the number of Cash-Out Stock Options held by executive officers and a former director, as of the Record Date. We expect that Cash-Out Stock Options will generally include (1) vested Company Stock Options and (2) unvested Company Stock Options that were granted to service providers prior to February 10, 2021 (the date of our initial public offering) which will become vested in the transaction due to the terms of the applicable award agreement (including as a result of satisfying performance conditions in connection with the receipt of cash by certain of our shareholders in connection with the Transactions). The table also sets forth the aggregate cash consideration that would be payable with respect to such Cash-Out Stock Options based on the excess of the Per Share Consideration of $30.50 over the applicable exercise price.

 

Name of Executive Officer who hold Cash-Out Stock Options		Number of Shares Subject to Vested Stock Options (#)				Cash Consideration for Vested Stock Options ($)				Number of Shares Subject to Unvested Cash-Out Options (#)				Cash Consideration for Unvested Cash-Out Options ($)				Total Cash Consideration for Cash-Out Options in Merger ($)
Josh Builder			50,000				325,000				—				—				325,000
Laurel Douty			50,000				325,000				—				—				325,000
Adam McAnaney			64,122				1,154,259				166,100				3,660,844				4,815,103
Marc Rothman, MD			16,666				108,329				—				—				108,329
Steven Senneff			196,429				4,329,295				687,503				15,152,566				19,481,861
Brett Carlson			288,523				6,359,047				192,350				4,239,394				10,598,441
Stephen F. Wiggins			16,684				470,822				—				—				470,822
All executive officers and directors who hold Cash-Out Stock Options as a group			682,424				13,071,752				1,045,953				23,052,804				36,124,556

 

64

Treatment of Cash-Out RSUs

At the Effective Time, each Cash-Out RSU that is then outstanding will be canceled and converted into the right of the holder thereof to receive, without interest, an amount in cash determined by multiplying (i) $30.50 by (ii) the number of shares of Class A Common Stock subject to the Cash-Out RSUs as of immediately prior to the Effective Time.

The table below sets forth the number of Cash-Out RSUs held by directors, as of the Record Date. We expect Cash-Out RSUs to generally include (1) any Company RSU that is vested as of the Record Date (but that has not been settled in shares of Class A Common Stock) and (2) any Company RSUs granted to a non-employee director, consultant or independent contractor (whether or not they are vested). As of the Record Date, the only Cash-Out RSUs for purposes of this disclosure are Company RSUs granted to non-employee directors. The table also sets forth the aggregate cash consideration that would be payable for such Cash-Out RSUs based on the Per Share Consideration of $30.50.

 

Name of Executive Officer or Director who hold Cash-Out RSUs		Number of Cash-Out RSUs (#)				Cash Consideration for Cash-Out RSUs ($)
Matthew S. Holt*			14,672				447,496
Taj J. Clayton			14,672				447,496
Brandon H. Hull			14,672				447,496
Kevin M. McNamara			22,588				688,934
Albert A. Notini*			14,672				447,496
Kyle B. Peterson*			14,672				447,496
Vivian E. Riefberg			14,672				447,496
Heather Dixon			14,672				447,496
Arnold Goldberg			14,672				447,496
All executive officers and directors who hold Cash-Out RSUs as a group			139,964				4,268,902

 

*	Each of Messrs. Holt, Notini, and Peterson have contractually agreed that any compensation paid to them in his capacity as a director of Signify (including amounts payable with respect to equity awards) will be automatically assigned and paid to New Mountain.

Treatment of Rollover Stock Options

At the Effective Time, each Rollover Stock Option will be converted into an option to acquire, on substantially the same terms and conditions as were applicable under such Rollover Stock Option, the number of shares of CVS Health Stock (rounded down to the nearest whole share), determined by multiplying (x) the number of shares of Class A Common Stock subject to such Rollover Stock Option immediately prior to the Effective Time by (y) the “Exchange Ratio,” which is a fraction, the numerator of which is $30.50 and the denominator of which is the volume weighted average trading price under the function “VWAP” (rounded to the nearest $0.01) of one share of CVS Health Stock on the NYSE as reported on Bloomberg L.P. (or, if not reported therein, in another authoritative source mutually selected by the parties) for the ten (10) consecutive trading days ending on (and including) the trading day that is three (3) trading days prior to the date of the Closing. The exercise price with respect to such Rollover Stock Option will be determined by dividing (A) the exercise price per share of Class A Common Stock subject to such Rollover Stock Option divided (B) by the Exchange Ratio.

 

65

The table below sets forth the number of Rollover Stock Options held by executive officers as of the Record Date. We expect Rollover Stock Options to generally include unvested Company Stock Options granted to employees on or after February 10, 2021 (the date of our initial public offering). As described in further detail above, Rollover Stock Options will be converted at Closing into stock options with respect to CVS Health Stock of substantially equivalent value, and as a result of the Transactions and the underlying equity award documentation, such awards will be eligible for accelerated vesting upon certain qualifying terminations of employment following the Closing. For limited purposes of quantifying the value of the Rollover Stock Options for this proxy statement, we have assumed that the value of each Rollover Stock Option is equal to the excess of the Per Share Consideration of $30.50 over the applicable exercise price. Ultimately, the value of any Rollover Stock Option will be determined by the Exchange Ratio at the time of the Closing and the value of CVS Health Stock when an executive officer ultimately exercises his or her Rollover Stock Option.

 

Name of Executive Officer who hold Rollover Stock Options		Number of Rollover Stock Options (#)				Estimated Value of Rollover Stock Options ($)
Kyle Armbrester			634,257				10,344,732
Josh Builder			232,138				2,805,171
Laurel Douty			232,138				2,805,171
Paymon Farazi			142,125				1,709,764
Adam McAnaney			165,472				2,371,842
David Pierre			317,127				5,172,341
Marc Rothman, MD			139,045				1,940,817
Steven Senneff			211,419				3,448,244
Jerome Gronniger			132,138				2,155,171
All executive officers and directors who hold Rollover Stock Options as a group			2,205,859				32,753,253

Treatment of Rollover RSUs

At the Effective Time, each Rollover RSU will be converted into a restricted stock unit, subject to substantially the same terms and conditions as were applicable under such Rollover RSU, with respect to a number of shares of CVS Health Stock determined by multiplying the number of shares of Class A Common Stock subject to such Rollover RSU immediately prior to the Effective Time by the Exchange Ratio (rounded up to the nearest whole share).

 

66

The table below sets forth the number of Rollover RSUs held by executive officers as of the Record Date. We generally expect Rollover RSUs to include any Company RSUs granted to employees that have not yet vested (but not Company RSUs granted to a non-employee director, consultant or independent contractor (whether or not they are vested), which are treated as Cash-Out RSUs). As described in further detail above, Rollover RSUs will be converted at Closing into restricted stock units with respect to CVS Health Stock of substantially equivalent value, and as a result of the Transactions and the underlying equity award documentation, such awards will be eligible for accelerated vesting upon certain qualifying terminations of employment following the Closing. For limited purposes of quantifying the value of the Rollover RSUs for this proxy statement, we have assumed that the value of each Rollover RSU is equal to the Per Share Consideration of $30.50. Ultimately, the value of any Rollover RSU will be determined by the Exchange Ratio at the time of the Closing and the value of CVS Health Stock when the Rollover RSU ultimately vests.

 

Name of Executive Officer who hold Rollover RSUs		Number of Rollover RSUs (#)				Estimated Value of Rollover RSUs ($)
Kyle Armbrester			70,473				2,149,427
Josh Builder			44,046				1,343,403
Laurel Douty			44,046				1,343,403
Paymon Farazi			47,375				1,444,938
Adam McAnaney			44,046				1,343,403
David Pierre			105,709				3,224,125
Marc Rothman, MD			35,237				1,074,729
Steven Senneff			70,473				2,149,427
Jerome Gronniger			44,046				1,343,403
All executive officers who hold Rollover RSUs as a group			505,451				15,416,258

Treatment of Purchase Rights under the Company ESPP

Our executive officers, together with other eligible employees, are eligible to participate in the Company ESPP pursuant to its terms. The Merger Agreement provides that Signify is required to take all actions necessary pursuant to the terms of the Company ESPP to provide that (i) no new offering periods will begin under the Company ESPP (unless the Merger Agreement is terminated), (ii) there will be no increase in the amount of participants’ payroll deduction elections during the current offering period, (iii) except to the extent required by applicable law, no individual participating in the Company ESPP will be permitted to make separate non-payroll contributions to the Company ESPP, (iv) no individuals will commence participation in the Company ESPP during the period between the date of the Merger Agreement and the Effective Time and (v) each purchase right issued pursuant to the Company ESPP must be fully exercised on the earlier of (x) the scheduled purchase date for such offering period and (y) the date that is no later than five (5) Business Days on which the NYSE is open for trading prior to the Effective Time. Any shares of Class A Common Stock purchased under the Company ESPP will receive the same cash consideration on the same terms and conditions as the other Signify Stockholders (i.e., the Per Share Consideration of $30.50 per share).

Payment Upon Termination of Employment Following Change of Control

All of our executive officers other than Mr. Boumenot, Ms. Douty and Mr. Pettijohn are eligible to participate in our Executive Severance Plan (the “Severance Plan”). Pursuant to the terms of the Severance Plan, in the event of termination of employment of certain executive officers by us without “cause” or by such executive officer for “good reason” (each as defined in the Severance Plan) within twenty-four (24) months following the consummation of the Transactions, the executive officer will be eligible to receive (i) a cash severance payment equal to the participant’s then-current base salary multiplied by a severance multiplier (which multiplier is 1.5x for Kyle Armbrester, David Pierre and Steven Senneff and 1.0x for all other participants, paid

 

67

in installments over eighteen (18) months for Kyle Armbrester, David Pierre and Steven Senneff and twelve (12) months for all other participants), (ii) a pro rata annual bonus for the year of termination, based on the greater of (x) target performance and (y) actual performance achieved through the end of the applicable performance year, paid when such bonuses are normally paid, (iii) payment of or reimbursement for up to eighteen (18) months of the cost of the participant’s COBRA premiums (for the participant and the participant’s dependents and less the portion of such premiums the participant would have been required to pay had the participant continued to be employed) and (iv) payment of any earned but unpaid bonus in respect of the most-recent bonus performance period ended prior to the termination date, paid when the bonus would have normally been paid. Mr. Armbrester is also eligible to receive a cash payment equal to his then-current target bonus multiplied by a severance multiplier of 1.5x, paid in installments over eighteen (18) months.

The severance payments and benefits described above under the Severance Plan are subject to the participant’s execution and non-revocation of a general waiver and release of claims and continued compliance with the terms of any applicable non-compete, non-solicit, confidentiality or other restrictive covenant obligations. The Severance Plan does not provide any tax gross-ups. Instead, the Severance Plan contains a “modified cutback” provision, which acts to reduce the benefits payable to the extent necessary so that no excise tax would be imposed on the benefits paid (including with respect to acceleration of equity outlined below), but only if doing so would result in the executive retaining a larger after-tax amount.

In addition, pursuant to the terms of award agreements with our executive officers, if within twenty-four (24) months following the Transaction we terminate an executive officer without “cause” or such executive officer resigns for “good reason,” Rollover Stock Options and Rollover RSUs that are unvested as of the date of the qualifying termination will become fully vested.

Retention and Transaction Bonuses

Pursuant to the terms of the Merger Agreement, Signify is permitted to grant certain employees (including current executive officers other than our Chief Executive Officer) (i) retention bonuses in an aggregate amount of $8.0 million, which we expect to be payable on the six-month anniversary of the Closing and (ii) transaction bonuses in an aggregate amount of $2.0 million, which Signify expects to be payable at or promptly following the Closing, generally subject to continued employment on such date. The retention and transaction bonus agreements will provide that recipients remain eligible for payment on the original scheduled payment date upon a termination without “cause” or, with respect to the retention bonus, a termination without “cause” or a resignation for “good reason,” in each case, subject to the recipient executing a release of claims and the consummation of the Merger. Of the $10.0 million in retention and transaction bonus pools, no more than $3.0 million may be paid, in the aggregate, to direct reports to the Chief Executive Officer (which includes certain of our current executive officers), and no individual participant is entitled to receive more than $1.0 million in aggregate payments. At the time of the filing of this proxy statement, individual allocations to our executive officers have not been finalized.

2022 Annual Bonus Payouts

Pursuant to the terms of the Merger Agreement, if the Effective Time occurs before the time that bonuses with respect to calendar year 2022 are paid, any employee who is then employed and who participates in Signify’s Annual Cash Incentive Plan and Health Leadership Plan, including current executive officers, will be entitled to a bonus based on the greater of (x) target performance and (y) actual performance, at the same time and in the same manner as bonuses are normally paid in the ordinary course of business in calendar year 2023.

Employee Benefits

With respect to each employee of Signify or its Subsidiaries who is employed as of immediately prior to the Effective Time, for a period of twelve (12) months following the Closing (or, if earlier, until the applicable continuing employee terminates employment), CVS will provide, or cause to be provided, to each continuing employee, (i) base salary or wage level, target cash bonus opportunity and target incentive equity opportunity

 

68

that, in each case, is not less favorable than that in effect immediately prior to the Effective Time and (ii) employee benefits (excluding equity-based compensation, defined benefit pension plan benefits, change in control, retention or severance benefits or awards or any similar compensation or benefit), that are substantially comparable in the aggregate to such employee benefits that the continuing employee was entitled to receive immediately prior to the Effective Time. For a period of twenty-four (24) months following the Closing, the failure or refusal by any continuing employee, other than certain executives, to enter into a restrictive covenant agreement with CVS or its Subsidiaries will not constitute a basis for terminating such continuing employee for “cause” with respect to any determination relating to a Rollover RSU or Rollover Stock Option.

With respect to any employee who is a participant in the Severance Plan, for a period of twenty-four (24) months following the Closing, CVS will provide to each such participant in the Severance Plan who experiences a termination without “cause” or a resignation for “good reason” severance payments and benefits no less favorable than those that would have been provided under the Severance Plan.

Insurance and Indemnification of Directors and Executive Officers

CVS and the Surviving Corporation have agreed that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time, all rights to advancement of expenses relating thereto now existing in favor of any person who is, or has been at any time prior to the Effective Time, a present or former director, manager, officer, employee or agent (including as a fiduciary with respect to an employee benefit plan) of Signify, any of its Subsidiaries or any of their respective predecessors (each, an “Indemnified Person”) as provided in the Certificate of Incorporation and Bylaws, the organizational documents of any Subsidiary of Signify or any indemnification agreement. Such obligations will survive the Merger and may not be amended, repealed or otherwise modified in any manner that will adversely affect any right to indemnification, exculpation or advancement of expenses thereunder of any such Indemnified Person.

Prior to the Effective Time, Signify has agreed to, or if Signify is unable to, CVS will cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for the non-cancellable extension of the directors’ and officers’ liability coverage of Signify’s existing directors’ and officers’ insurance policies and Signify’s existing fiduciary liability insurance policies, in each case for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time (including claims with respect to the adoption of the Merger Agreement and the consummation of the Transactions) with terms, conditions, retentions and limits of liability that are no less favorable in any material respect than the coverage provided under Signify’s existing policies; provided that Signify will give CVS a reasonable opportunity to participate in the selection of such “tail” insurance policy and is required to consider, in good faith, any comments made by CVS with respect thereto; and provided, further, that the premium payable for such “tail” insurance policy may not exceed 300% of the amount per annum Signify paid in its last full fiscal year and if the cost for such “tail” insurance policy exceeds such maximum amount, then Signify or the Surviving Corporation will obtain a policy with the greatest coverage available for a cost not exceeding such maximum amount.

Appraisal Rights

If the Merger is consummated, Signify Stockholders and beneficial owners of shares of Company Stock who continuously hold shares of Company Stock through the Effective Time, who do not vote in favor of the adoption of the Merger Agreement, who properly demand appraisal of their shares in accordance with DGCL, and who otherwise comply with the statutory requirements of Section 262 will be entitled to seek appraisal of their shares in connection with the Merger under Section 262. The following discussion is not a complete statement of the law pertaining to appraisal rights under the DGCL and is qualified in its entirety by the full text of Section 262, which is attached to this proxy statement as Annex D and incorporated herein by reference. The following summary does not constitute any legal or other advice and does not constitute a recommendation that Signify Stockholders or beneficial owners of shares of Company Stock exercise their appraisal rights under

 

69

Section 262. All references in Section 262 and in this summary to a “stockholder,” “holder of shares of Company Stock” or “Signify Stockholder” are to the record holder of shares of Company Stock unless otherwise expressly noted herein, and all such references to a “beneficial owner” mean a person who is the beneficial owner of shares of stock held either in voting trust or by a nominee on behalf of such person unless otherwise expressly noted herein (and the word “person” means any individual, corporation, partnership, unincorporated association or other entity).

Under Section 262, if the Merger is completed, holders and beneficial owners of shares of Company Stock who: (i) submit a written demand for appraisal of their shares and do not withdraw their demand, fail to perfect or otherwise lose their appraisal rights, in each case in accordance with Section 262 of the DGCL; (ii) do not vote in favor of the adoption of the Merger Agreement; (iii) continuously are the record holders of such shares through the Effective Time; (iv) who are entitled to demand appraisal rights under Section 262 of the DGCL and (v) otherwise exactly follow the procedures set forth in Section 262 may be entitled to have their shares appraised by the Delaware Court of Chancery and to receive payment in cash of the “fair value” of the shares of Company Stock, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest to be paid on the amount determined to be fair value, if any, as determined by the court. However, after an appraisal petition has been filed, Section 262 provides that the Delaware Court of Chancery will dismiss appraisal proceedings as to all Signify Stockholders and beneficial owners of shares of Company Stock who have asserted appraisal rights unless (a) the total number of shares for which appraisal rights have been pursued and perfected exceeds 1% of the outstanding shares of Company Stock as measured in accordance with subsection (g) of Section 262; or (b) the value of the aggregate Per Share Consideration in respect of the shares of Company Stock for which appraisal rights have been pursued and perfected exceeds $1 million (conditions (a) and (b) referred to as the “ownership thresholds”). Unless the Delaware Court of Chancery, in its discretion, determines otherwise for good cause shown, interest on an appraisal award will accrue and compound quarterly from the Effective Time through the date the judgment is paid at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during such period. However, at any time before the Delaware Court of Chancery enters judgment in the appraisal proceedings, the Surviving Corporation may voluntarily pay to each Signify Stockholder and beneficial owner of Company Stock entitled to appraisal an amount in cash pursuant to subsection (h) of Section 262, in which case such interest will accrue after the time of such payment only on an amount that equals the difference, if any, between the amount so paid and the “fair value” of the shares as determined by the Delaware Court of Chancery, in addition to any interest accrued prior to the time of such voluntary cash 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.

Under Section 262, where a merger is to be submitted for approval at a meeting of Signify Stockholders, such as the Special Meeting, the corporation, not less than twenty (20) days prior to the meeting, must notify each of the Signify Stockholders who was such 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 either a copy of Section 262 or information directing the Signify Stockholders to a publicly available electronic resource at which Section 262 may be accessed without subscription or cost. This proxy statement constitutes Signify’s notice to Signify Stockholders that appraisal rights are available in connection with the Merger, and the full text of Section 262 is attached to this proxy statement as Annex D. In connection with the Merger, any holder of shares of Company Stock or any beneficial owner of Company Stock who wishes to exercise appraisal rights, or who wishes to preserve such holder’s or beneficial owner’s right to do so, should review this discussion and Annex D carefully. Failure to strictly 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 Signify Stockholder or beneficial owner of Company Stock who loses his, her or its appraisal rights will be entitled to receive the Per Share Consideration described in the Merger Agreement. Moreover, the process of dissenting and exercising appraisal rights requires compliance with technical prerequisites, and because of the complexity of the procedures for exercising the right to seek appraisal of shares of Company Stock, Signify believes that if a Signify Stockholder or beneficial owner of Company Stock considers exercising such rights, that Signify Stockholder or beneficial owner of Company Stock should seek the advice of legal counsel.

 

70

Signify Stockholders or beneficial owners of shares of Company Stock wishing to exercise the right to seek an appraisal of their shares of Company Stock must do ALL of the following:

 

•

In the case of a Signify Stockholder, such person must not vote, or abstain from voting, in favor of the proposal to adopt the Merger Agreement. In the case of a beneficial owner of Company Stock, such person must not instruct such person’s broker, bank or other nominee to vote such person’s share, or abstain from voting, in favor of the proposal to adopt the Merger Agreement;

 

•

the Signify Stockholder or beneficial owner of Company Stock must deliver to Signify a written demand for appraisal before the vote on the Merger Agreement at the Special Meeting, which written demand must reasonably inform Signify of the identity of the Signify Stockholder or beneficial owner of Company Stock and that the Signify Stockholder or beneficial owner of Company Stock intends to demand appraisal of his, her or its shares. This written demand for appraisal must be in addition to and separate from any proxy or vote abstaining from or voting against the adoption of the Merger Agreement. Voting “AGAINST” or failing to vote “FOR” the adoption of the Merger Agreement by itself does not constitute a demand for appraisal within the meaning of Section 262 of the DGCL;

 

•

the Signify Stockholder or beneficial owner of Company Stock must continuously hold or beneficially own, as applicable, the shares of Company Stock from the date of making the demand through the Effective Time (a Signify Stockholder or beneficial owner of Company Stock will lose appraisal rights if the Signify Stockholder or beneficial owner of Company Stock transfers the shares before the Effective Time); and

 

•

the Signify Stockholder or beneficial owner of Company Stock must otherwise comply with the procedures of Section 262 of the DGCL, including filing a petition in the Delaware Court of Chancery requesting a determination of the fair value of the shares within one hundred twenty (120) days after the Effective Time. The Surviving Corporation is under no obligation to file any petition and has no intention of doing so.

In addition, one of the ownership thresholds articulated in Section 262(g) must be met.

Because a proxy that does not contain voting instructions will, unless revoked, be voted in favor of the adoption of the Merger Agreement, a Signify Stockholder or beneficial owner of Company Stock who votes by proxy and who wishes to exercise appraisal rights must vote against the adoption of the Merger Agreement, abstain or not vote the shares.

Filing Written Demand

Any holder of shares of Company Stock or beneficial owner of Company Stock wishing to exercise appraisal rights must deliver to Signify, before the vote on the adoption of the Merger Agreement at the Special Meeting at which the proposal to adopt the Merger Agreement will be submitted to Signify Stockholders, a written demand for the appraisal of the Signify Stockholder’s or beneficial owner of Company Stock’s shares.

In the case of a Signify Stockholder, that Signify Stockholder must not vote or submit a proxy in favor of the adoption of the Merger Agreement. A proxy that is submitted and does not contain voting instructions will, unless revoked, be voted in favor of the adoption of the Merger Agreement, and it will constitute a waiver of the Signify Stockholder’s appraisal rights. Therefore, a Signify Stockholder who submits a proxy and who wishes to exercise appraisal rights must submit a proxy containing instructions to vote against the adoption of the Merger Agreement or abstain from voting, or otherwise fail to vote, on the adoption of the Merger Agreement.

In the case of a beneficial owner of Company Stock, brokers, banks and other nominees that hold shares of common stock in “street name” for their customers do not have discretionary authority to vote those

 

71

shares on the proposal to approve and adopt the Merger Agreement without specific voting instructions from the beneficial owner on such proposal, but such brokers, banks or other nominees will vote such shares as instructed if the beneficial owner provides such instructions. If a beneficial owner of shares of Company Stock held in “street name” instructs such person’s broker, bank or other nominee to vote such person’s shares in favor of the proposal to approve and adopt the Merger Agreement, and does not revoke such instruction prior to the vote on the proposal to approve and adopt the Merger Agreement, then such shares will be voted in favor of the approval and adoption of the Merger Agreement, and it will constitute a waiver of such beneficial owner’s right of appraisal and will nullify any previously delivered written demand for appraisal. Therefore, a beneficial owner of Company Stock who wishes to exercise appraisal rights must either not provide any instructions to such person’s broker, bank or other nominee how to vote on the proposal to approve and adopt the Merger Agreement or must instruct such broker, bank or other nominee to vote against the approval and adoption of the Merger Agreement or abstain from voting on such proposal.

Neither voting against the 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 adoption of the Merger Agreement. A proxy or vote against the adoption of the Merger Agreement will not constitute a demand. A Signify Stockholder’s or beneficial owner of Company Stock’s failure to make the written demand prior to the taking of the vote on the adoption of the Merger Agreement at the Special Meeting will constitute a waiver of appraisal rights.

A demand for appraisal made by a Signify Stockholder or beneficial owner of Company Stock must be executed by or on behalf of the holder of record or beneficial owner, as applicable, and must reasonably inform Signify of the identity of such holder or beneficial owner. In addition, in the case of a demand for appraisal made by a beneficial owner of Company Stock, the demand must also reasonably identify the holder of record of the shares for which the demand is made, be accompanied by documentary evidence of the beneficial owner’s ownership of Company Stock (such as a brokerage or securities account statement containing such information or a letter from the broker or other record holder of such shares confirming such information) and a statement that such documentary evidence is a true and accurate copy of what it purports to be, and provide an address at which such beneficial owner consents to receive notices given by the surviving corporation under Section 262 and to be set forth on the verified list required by subsection (f) of Section 262. Whether made by a Signify Stockholder of beneficial owner of Company Stock, a written demand for appraisal must state that the person intends thereby to demand appraisal of the person’s shares in connection with the Merger. If the shares are owned of record or beneficially owned 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 or beneficial owner, and if the shares are owned of record or beneficially owned by more than one (1) person, as in a joint tenancy and tenancy in common, the demand must be executed by or on behalf of all joint record holders or beneficial owners. An authorized agent, including an authorized agent for two (2) or more joint record holders or beneficial owners, may execute a demand for appraisal on behalf of a holder of record or beneficial owner; however, the agent must identify the record owner or owners or beneficial owner or owners, respectively, and expressly disclose that, in executing the demand, the agent is acting as agent for the record owner or owners or beneficial owner or owners, as applicable.

All demands for appraisal pursuant to Section 262 should be in writing and should be mailed or delivered to:

Signify Health, Inc.

Attention: Adam McAnaney, General Counsel

4055 Valley View Lane

Suite 700

Dallas, TX 75244

 

72

with a copy to:

Ropes & Gray LLP

1211 Avenue of the Americas

New York, NY 1036

Attention: Christopher D. Comeau, Esq. and Garrett T. Charon, Esq.

At any time within sixty (60) days after the Effective Time, any holder of shares of Company Stock or beneficial owner who has delivered a written demand to Signify and who has not commenced an appraisal proceeding or joined that proceeding as a named party may withdraw his, her or its demand for appraisal and accept the Per Share Consideration offered pursuant to the Merger Agreement by delivering to Signify a written withdrawal of the demand for appraisal. However, any such attempt to withdraw the demand made more than sixty (60) days after the Effective Time will require written approval of the Surviving Corporation. No appraisal proceeding in the Delaware Court of Chancery will be dismissed as to any Signify Stockholder or beneficial owner 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; provided, however, that this provision will not affect the right of any Signify Stockholder or beneficial owner who has not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such Signify Stockholder’s or beneficial owner’s demand for appraisal and to accept the Per Share Consideration within sixty (60) days after the Effective Time.

Notice by the Surviving Corporation

If the Merger is completed, within ten (10) days after the Effective Time, the Surviving Corporation will notify each holder of shares of Company Stock or beneficial owner who has properly made a written demand for appraisal pursuant to Section 262, and who has not voted in favor of the adoption of the Merger Agreement, that the Merger has become effective and the effective date thereof.

Filing a Petition for Appraisal

Within one hundred twenty (120) days after the Effective Time, but not thereafter, the Surviving Corporation or any holder of shares of Company Stock or beneficial owner who has complied with Section 262 and is entitled to seek appraisal 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 Signify Stockholder or beneficial owner, demanding a determination of the fair value of the shares held by all dissenting Signify Stockholders or beneficial owners entitled to appraisal rights who did not vote their shares in favor of the Merger and properly demanded appraisal of such shares. The Surviving Corporation is under no obligation, and has no present intention, to file a petition, and Signify Stockholders and beneficial owners should not assume that the Surviving Corporation will file a petition or initiate any negotiations with respect to the fair value of the shares of Company Stock. Accordingly, any holders of shares of Company Stock 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 Company Stock within the time and in the manner prescribed in Section 262. The failure of a holder of Company Stock or beneficial owner to file such a petition within the period specified in Section 262 could nullify the Signify Stockholder’s or beneficial owner’s previous written demand for appraisal.

Within one hundred twenty (120) days after the Effective Time, any person who has complied with the requirements of Section 262 and who is entitled to appraisal rights thereunder will be entitled, upon written request, to receive from the Surviving Corporation a statement setting forth the aggregate number of shares of Company Stock not voted in favor of the adoption of the Merger Agreement and with respect to which Signify has received demands for appraisal, and the aggregate number of holders of such shares or beneficial owners holding or owning such shares (provided that, in the case of a demand made by a beneficial owner in such person’s name, 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 mail such statement to the requesting

 

73

Signify Stockholder or beneficial owner within ten (10) days after receipt by the Surviving Corporation of the written request for such a statement or within ten (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 holder of shares of Company Stock or a beneficial owner and a copy thereof is served upon the Surviving Corporation, the Surviving Corporation will then be obligated within twenty (20) days after such service to file with the Delaware Register in Chancery a duly verified list containing the names and addresses of all Signify Stockholders or beneficial owners of shares of Company Stock who have demanded payment 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 Signify Stockholders or beneficial owners of shares of Company Stock shown on such verified list at the addresses stated therein. Such notice will also be published at least one (1) week before the day of the hearing in a newspaper of general circulation published in the City of Wilmington, Delaware, or in another publication determined by the Delaware Court of Chancery. The costs of these notices are borne by the Surviving Corporation. After notice to Signify Stockholders or beneficial owners of shares of Company Stock as required by the court, the Delaware Court of Chancery is empowered to conduct a hearing on the petition to determine those Signify Stockholders or beneficial owners of shares of Company Stock who have complied with Section 262 and who have become entitled to appraisal rights thereunder. The Delaware Court of Chancery may require the Signify Stockholders or beneficial owners of shares of Company Stock who demanded appraisal of their shares to submit their stock certificates (if any) to the Register in Chancery for notation thereon of the pendency of the appraisal proceedings and, if any Signify Stockholder or beneficial owner of Company Stock fails to comply with that direction, the Delaware Court of Chancery may dismiss that Signify Stockholder or beneficial owner of Company Stock from the proceedings. The Delaware Court of Chancery will dismiss appraisal proceedings as to all Signify Stockholders and beneficial owners of shares of Company Stock who assert appraisal rights unless one of the ownership thresholds is met.

Determination of Fair Value

After determining the holders and beneficial owners of shares of Company Stock entitled to appraisal and that at least one of the ownership thresholds described above has been satisfied as to Signify Stockholders or beneficial owners of shares of Company Stock seeking appraisal rights, the appraisal proceeding will be conducted in accordance with the rules of the Delaware Court of Chancery, including any rules specifically governing appraisal proceedings. Through such proceeding, the Delaware Court of Chancery will determine the “fair value” of the shares of Company Stock, 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 below). In determining fair value, the Delaware Court of Chancery will take into account all relevant factors. Unless the court in its discretion determines otherwise for good cause shown, interest from the Effective Time 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 and the date of payment of the judgment. However, at any time before the Delaware Court of Chancery enters judgment in the appraisal proceedings, the Surviving Corporation may pay to each Signify Stockholder and beneficial owner of Company Stock entitled to appraisal an amount in cash, in which case such interest will accrue after the time of such payment only on an amount that equals the difference, if any, between the amount so paid and the “fair value” of the shares as determined by the Delaware Court of Chancery, in addition to any interest accrued prior to the time of such voluntary payment, unless paid at such time.

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

 

74

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.”

Signify Stockholders and beneficial owners of shares of Company Stock considering seeking appraisal should be aware that the fair value of their shares as so determined by the Delaware Court of Chancery could be more than, the same as or less than the Per Share Consideration they would receive pursuant to the Merger if they did not seek appraisal of their shares and that an opinion of an investment banking firm as to the fairness from a financial point of view of the consideration payable in a merger is not an opinion as to, and does not in any manner address, fair value under Section 262. No representation is made as to the outcome of the appraisal of fair value as determined by the Delaware Court of Chancery, and Signify Stockholders and beneficial owners of shares of Company Stock should recognize that such an appraisal could result in a determination of a value higher or lower than, or the same as, the Per Share Consideration. Neither Signify nor CVS anticipates offering more than the Per Share Consideration to any Signify Stockholder or beneficial owner of Company Stock exercising appraisal rights, and each of Signify and CVS reserves the rights 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 Company Stock is less than the Per Share Consideration. If a petition for appraisal is not timely filed, or if neither of the ownership thresholds described above has been satisfied as to Signify Stockholders or beneficial owners of shares of Company Stock seeking appraisal rights, then the right to an appraisal will cease. 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 charged upon the parties as the Delaware Court of Chancery deems equitable under the circumstances. Upon application of a Signify Stockholder or beneficial owner of Company Stock, the Delaware Court of Chancery may also order that all or a portion of the expenses incurred by a Signify Stockholder or beneficial owner of Company Stock in connection with an appraisal proceeding, 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 be appraised. In the absence of such determination or assessment, each party bears its own expenses.

If any Signify Stockholder or beneficial owner of Company Stock who demands appraisal of his, her or its shares of Company Stock under Section 262 fails to perfect, withdraws or otherwise loses, such holder’s right to appraisal, the Signify Stockholder’s or beneficial owner of Company Stock’s shares of Company Stock will be deemed to have been converted at the Effective Time into the right to receive the Per Share Consideration, without interest, upon delivery by such holder of a properly completed and duly executed letter of transmittal to Signify or the Paying Agent and transfer of the shares of Company Stock. A Signify Stockholder or beneficial owner of Company Stock will fail to perfect, or effectively lose or withdraw, the holder’s right to appraisal if no petition for appraisal is filed within one hundred twenty (120) days after the Effective Time, if neither of the ownership thresholds described above is met or if the Signify Stockholder or beneficial owner of Company Stock properly delivers to the Surviving Corporation a written withdrawal of the holder’s or beneficial owner’s demand for appraisal and an acceptance of the Per Share Consideration in accordance with Section 262.

 

75

From and after the Effective Time, no Signify Stockholder or beneficial owner of Company Stock who has demanded appraisal rights will be entitled to vote such shares of Company Stock for any purpose or to receive payment of dividends or other distributions on the stock, except dividends or other distributions on the holder’s shares of Company Stock, if any, payable to Signify Stockholders as of a time prior to the Effective Time. If no petition for an appraisal is filed, if neither of the ownership thresholds described above is met, or if the Signify Stockholder or beneficial owner of Company Stock delivers to the Surviving Corporation a written withdrawal of the demand for an appraisal and an acceptance of the Merger, either within sixty (60) days after the Effective Time or thereafter with the written approval of the Surviving Corporation, then the right of such Signify Stockholder or beneficial owner of Company Stock to an appraisal will cease. Once a petition for appraisal is filed with the Delaware Court of Chancery, however, the appraisal proceeding may not be dismissed as to any Signify Stockholder or beneficial owner of Company Stock without the approval of the court, and such approval may be conditioned upon such terms as the court deems just; provided, however, that the foregoing will not affect the right of any Signify Stockholder or beneficial owner of Company Stock who has not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such Signify Stockholder’s or beneficial owner of Company Stock’s demand for appraisal and to accept the terms offered upon the Merger within sixty (60) days after the Effective Time.

SIGNIFY STOCKHOLDERS WHO VOTE SHARES IN FAVOR OF THE ADOPTION OF THE MERGER AGREEMENT AND BENEFICIAL OWNERS OF SHARES OF COMPANY STOCK WHO INSTRUCT SUCH PERSONS’ BROKERS, BANKS OR OTHER NOMINEES TO VOTE SUCH PERSONS’ SHARES IN FAVOR OF THE ADOPTION OF THE MERGER AGREEMENT WILL NOT BE ENTITLED TO EXERCISE APPRAISAL RIGHTS WITH RESPECT THERETO BUT, RATHER, WILL RECEIVE THE MERGER CONSIDERATION.

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

Accounting Treatment

The Merger will be accounted for as a “purchase transaction” for financial accounting purposes.

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

The following discussion is a summary of certain material U.S. federal income tax consequences of the Merger that may be relevant to U.S. Holders and Non-U.S. Holders (each as defined in this proxy statement) of shares of Class A Common Stock whose shares are converted into the right to receive cash pursuant to the Merger. This discussion is limited to Signify Stockholders who hold their shares of Class A Common Stock as “capital assets” within the meaning of Section 1221 of the Code (generally, property held for investment purposes). This discussion is based upon the Internal Revenue Code of 1986, as amended (the “Code”), Treasury Regulations promulgated under the Code, rulings and other published positions of the Internal Revenue Service (the “IRS”) and judicial decisions, all as in effect on the date of this proxy statement and all of which are subject to change or differing interpretations at any time, possibly with retroactive effect. Any such change or differing interpretation could affect the accuracy of the statements and conclusions set forth in this discussion. No assurance can be given that the IRS would not assert, or that a court would not sustain, a position contrary to any of the tax considerations described in this discussion. No advance ruling has been or will be sought from the IRS regarding any matter discussed below.

This discussion is for general information purposes only and does not purport to be a complete analysis of all of the U.S. federal income tax considerations that may be relevant to particular holders in light of their

 

76

particular facts and circumstances, or to Signify Stockholders subject to special rules under U.S. federal income tax laws, including, for example, but not limited to:

 

•

banks and other financial institutions;

 

•

mutual funds;

 

•

insurance companies;

 

•

brokers or dealers in securities, currencies or commodities;

 

•

dealers or traders in securities subject to a mark-to-market method of accounting with respect to shares of Class A Common Stock (by vote or value);

 

•

regulated investment companies and real estate investment trusts;

 

•

retirement plans, individual retirement and other deferred accounts;

 

•

tax-exempt organizations, governmental agencies, instrumentalities or other governmental organizations and pension funds;

 

•

holders that are holding shares of Class A Common Stock as part of a “straddle,” hedge, constructive sale, or other integrated transaction or conversion transaction or similar transactions;

 

•

U.S. Holders (as defined in this proxy statement) whose functional currency is not the U.S. dollar;

 

•

partnerships, other entities classified as partnerships for U.S. federal income tax purposes, “S corporations,” or any other pass-through entities for U.S. federal income tax purposes (or investors in such entities);

 

•

expatriated entities subject to Section 7874 of the Code;

 

•

holders that are required to accelerate the recognition of any item of gross income as a result of such income being recognized on an “applicable financial statement”;

 

•

persons subject to the alternative minimum tax;

 

•

U.S. expatriates and former citizens or long-term residents of the United States;

 

•

except as noted below, holders that own or have owned (directly, indirectly or constructively) five percent or more of Class A Common Stock (by vote or value);

 

•

grantor trusts;

 

•

controlled foreign corporations, passive foreign investment companies, and corporations that accumulate earnings to avoid U.S. federal income tax;

 

•

holders that received their shares of Class A Common Stock in a compensatory transaction, through a tax qualified retirement plan or pursuant to the exercise of options or warrants;

 

•

holders that own a direct or indirect equity interest in Parent following the Merger;

 

•

holders that hold their Class A Common Stock through a bank, financial institution or other entity, or a branch thereof, located, organized or resident outside the United States; and

 

•

holders that do not vote in favor of the Merger and that properly demand appraisal of their shares under Section 262 of the DGCL.

This discussion does not address any U.S. federal tax considerations other than those pertaining to the income tax (such as estate, gift or other non-income tax considerations) or any state, local or foreign income or non-income tax considerations. In addition, this discussion does not address any considerations arising under the Medicare contribution tax or any considerations in respect of any withholding required pursuant to the Foreign Account Tax Compliance Act of 2010 (including the Treasury Regulations promulgated thereunder and intergovernmental agreements entered into in connection therewith and any laws, regulations or practices

 

77

adopted in connection with any such agreement). This summary does not describe any tax consequences relating to the Redemption or the cancellation of Class B Common Stock, both as described the section of this proxy statement captioned “The Merger—Merger Consideration”.

THE U.S. FEDERAL INCOME TAX TREATMENT OF THE TRANSACTIONS DISCUSSED HEREIN TO ANY PARTICULAR SIGNIFY STOCKHOLDER WILL DEPEND ON THE STOCKHOLDER’S PARTICULAR TAX CIRCUMSTANCES. WE URGE YOU TO CONSULT YOUR TAX ADVISOR WITH RESPECT TO THE SPECIFIC TAX CONSEQUENCES TO YOU IN CONNECTION WITH THE MERGER IN LIGHT OF YOUR OWN PARTICULAR CIRCUMSTANCES, INCLUDING U.S. FEDERAL, STATE, LOCAL AND NON-U.S. INCOME AND OTHER TAX CONSEQUENCES.

U.S. Holders

This section applies to “U.S. Holders.” For purposes of this discussion, a “U.S. Holder” means a beneficial owner of shares of Class A Common Stock that is for U.S. federal income tax purposes:

 

•

an individual who is a citizen or resident of the United States;

 

•

a corporation, or other entity taxable as a corporation for U.S. federal income tax purposes, created or organized in or under the laws of the United States or any state thereof or the District of Columbia;

 

•

an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or

 

•

a trust, if (i) a court within the United States is able to exercise primary supervision over the administration of such trust and one (1) or more “United States persons” (within the meaning of the Code) have the authority to control all substantial decisions of the trust or (ii) the trust validly elected to be treated as a United States person for U.S. federal income tax purposes.

The receipt of cash by a U.S. Holder in exchange for shares of Class A Common Stock pursuant to the Merger will be a taxable transaction for U.S. federal income tax purposes. In general, a U.S. Holder will recognize gain or loss in an amount equal to the difference, if any, between the amount of cash received and the U.S. Holder’s adjusted tax basis in the shares of Class A Common Stock surrendered pursuant to the Merger. A U.S. Holder’s adjusted tax basis generally will equal the amount that such U.S. Holder paid for the shares of Class A Common Stock. A U.S. Holder’s gain or loss on the disposition of shares of Class A Common Stock generally will be characterized as capital gain or loss. Any such gain or loss will be long-term capital gain or loss if such U.S. Holder’s holding period in such shares is more than one (1) year at the time of the completion of the Merger. A preferential tax rate on capital gain generally will apply to long-term capital gain of a non-corporate U.S. Holder (including individuals). The deductibility of capital losses is subject to limitations. U.S. Holders who hold different blocks of Class A Common Stock (shares of Class A Common Stock purchased or acquired on different dates or at different prices) should consult their tax advisor to determine how the above rules apply to them.

Non-U.S. Holders

This section applies to “Non-U.S. Holders.” For purposes of this discussion, a “Non-U.S. Holder” means a beneficial owner of Class A Common Stock that is not a U.S. Holder.

Subject to the discussion of backup withholding below, a Non-U.S. Holder generally will not be subject to U.S. federal income or withholding tax in respect of gain recognized in connection with the Merger, unless:

 

•

the gain is effectively connected with a trade or business of such Non-U.S. Holder in the United States (and, if required by an applicable income tax treaty, is attributable to a permanent establishment or fixed base maintained by such Non-U.S. Holder in the United States), in which case such gain generally will be subject to U.S. federal income tax at rates generally applicable to U.S. persons, and, if

 

78

the Non-U.S. Holder is a corporation, such gain may also be subject to the branch profits tax at a rate of 30% (or a lower rate under an applicable income tax treaty);

 

•

such Non-U.S. Holder is an individual who is present in the United States for 183 days or more in the taxable year of disposition of shares of Class A Common Stock pursuant to the Merger, and certain other specified conditions are met, in which case such gain will be subject to U.S. federal income tax at a rate of 30% (or a lower rate under an applicable income tax treaty), which gain may be offset by certain U.S. source capital losses of such Non-U.S. Holder, provided such Non-U.S. Holder has timely filed U.S. federal income tax returns with respect to such losses; or

 

•

shares of Class A Common Stock constitute a United States real property interest (a “USRPI”) by reason of Signify’s status as a “United States real property holding corporation” for U.S. federal income tax purposes (“USRPHC”) at any time during the shorter of the five-year period preceding the effective date of the Merger or such Non-U.S. Holder’s holding period with respect to the applicable shares of Class A Common Stock (the “Relevant Period”) and (A) shares of Class A Common Stock are not regularly traded on an established securities market (within the meaning of Section 897(c)(3) of the Code) or (B) shares of Class A Common Stock are regularly traded on an established securities market (within the meaning of Section 897(c)(3) of the Code) and such Non-U.S. Holder owns (directly, indirectly or constructively) more than 5% of the shares of Class A Common Stock at any time during the Relevant Period, in which case such gain will be subject to U.S. federal income tax at rates generally applicable to U.S. persons. Generally, a corporation is a USRPHC if the fair market value of its USRPIs equals or exceeds 50% of the sum of the fair market value of its worldwide real property interests plus its other assets used or held for use in a trade or business. Although there can be no assurances in this regard, we believe that we are not, will not be, and have not been, a USRPHC at any time during the five-year period preceding the Merger. Non-U.S. Holders are encouraged to consult their own tax advisors regarding the possible consequences to them if we are a USRPHC.

Information Reporting and Backup Withholding

Generally, information reporting requirements may apply in connection with payments made to U.S. Holders or Non-U.S. Holders in connection with the Merger.

Backup withholding of tax (currently, at a rate of 24%) generally will apply to the proceeds received by a U.S. Holder pursuant to the Merger, unless the U.S. Holder provides the applicable withholding agent with a properly completed and executed IRS Form W-9 providing such U.S. Holder’s correct taxpayer identification number and certifying that such holder is not subject to backup withholding, or otherwise establishes an exemption, and otherwise complies with the backup withholding rules. Backup withholding of tax may also apply to the proceeds received by a Non-U.S. Holder pursuant to the Merger, unless the Non-U.S. Holder provides the applicable withholding agent with a properly completed and executed IRS Form W-8BEN or IRS Form W-8BEN-E (or other applicable IRS Form W-8), attesting to such Non-U.S. Holder’s status as a non-U.S. person and otherwise complies with applicable certification requirements.

Backup withholding is not an additional tax. The amount of any backup withholding from a payment to a U.S. Holder or Non-U.S. Holder generally will be allowed as a credit against such holder’s U.S. federal income tax liability, if any, and may entitle such holder to a refund, provided that the required information is timely furnished to the IRS.

THE DISCUSSION ABOVE IS BASED ON CURRENT LAW. LEGISLATIVE, ADMINISTRATIVE OR JUDICIAL CHANGES OR INTERPRETATIONS, WHICH CAN APPLY RETROACTIVELY, COULD AFFECT THE ACCURACY OF THE STATEMENTS SET FORTH THEREIN. THIS DISCUSSION IS FOR GENERAL INFORMATION PURPOSES ONLY. IT DOES NOT ADDRESS TAX CONSIDERATIONS THAT MAY VARY WITH, OR ARE CONTINGENT ON, YOUR INDIVIDUAL CIRCUMSTANCES OR THE APPLICATION OF ANY U.S. NON-INCOME TAX LAWS OR THE

 

79

LAWS OF ANY STATE, LOCAL OR NON-U.S. JURISDICTION AND HOLDERS ARE URGED TO CONSULT THEIR TAX ADVISORS REGARDING SUCH MATTERS AND THE TAX CONSEQUENCES OF THE MERGER TO THEM IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES.

Regulatory Approvals Required for the Merger

General

Signify and CVS have agreed to take any and all action necessary to effectuate the Closing and to obtain all regulatory approvals required to consummate the Merger and the Transactions, including taking certain Divestiture Actions (as defined in this proxy statement), except that neither party is required to take any such action if taking such action would result in (i) both the requirement that (A) Signify, CVS or any of their respective Subsidiaries sell or otherwise dispose of any business or assets of either party which generated in excess of $125,000,000 of revenue and (B) the action have a Material Adverse Effect (as defined in this proxy statement) on Signify taken as a whole or (ii) an effect on CVS’s existing business that would be commensurate in magnitude to a Material Adverse Effect (as defined in this proxy statement) on Signify’s business.

HSR Act and Antitrust Matters

Under the HSR Act and the rules promulgated thereunder, the Merger may not be completed until Signify and CVS each files a Notification and Report Form with the Antitrust Division of the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”), and the applicable waiting period has expired or been terminated. A transaction notifiable under the HSR Act may not be completed until the expiration of a 30-calendar-day waiting period following the parties’ filings of their respective HSR Act notification and report forms. If the FTC or DOJ issues a request for additional information and documents (which we refer to as the “Second Request”) prior to the expiration of the initial waiting period, the parties must observe a second 30-day waiting period, which would begin to run only after both parties have substantially complied with the Second Request, unless the waiting period is terminated earlier or the parties otherwise agree to extend the waiting period.

Signify and CVS each filed a Notification and Report Form with respect to the Merger with the FTC and DOJ on September 19, 2022.

At any time before or after consummation of the Merger, notwithstanding the termination or expiration of the waiting period under the HSR Act, the FTC or the DOJ could take such action under the antitrust Laws as it deems necessary or desirable in the public interest, including seeking to enjoin the completion of the Merger, seeking divestiture of substantial assets of the parties, or requiring the parties to license or hold separate assets or terminate existing relationships and contractual rights. At any time before or after the completion of the Merger, any state could take such action under the antitrust Laws as it deems necessary or desirable in the public interest. Such action could include seeking to enjoin the completion of the Merger or seeking divestiture of substantial assets of the parties. Private parties may also seek to take legal action under the antitrust Laws under certain circumstances. We cannot be certain that a challenge to the Merger will not be made or that, if a challenge is made, we will prevail.

Legal Proceedings

On September 20, 2022, a purported stockholder of Signify filed a lawsuit in the United States District Court for the Southern District of New York captioned Stein v. Signify Health, Inc., et al., Case No. 1:22-cv-08048. The complaint names Signify and members of the Board of Directors as defendants and alleges that the defendants made materially incomplete and misleading statements in the preliminary proxy statement filed with the SEC on September 19, 2022 (the “Preliminary Proxy”) about the proposed acquisition of Signify by CVS.

 

80

Specifically, the complaint alleges that all defendants violated Section 14(a) of the Exchange Act and that each member of the Board of Directors violated Section 20(a) of the Exchange Act, on the basis of allegedly inadequate disclosures in the Preliminary Proxy regarding Signify’s financial projections, Goldman Sachs’s and Deutsche Bank’s respective financial analyses, and the sales process leading up to the proposed transaction. The complaint seeks, among other relief, (i) injunctive relief preventing the parties from proceeding with the Merger until the alleged disclosure deficiencies have been remedied, (ii) rescission in the event the Merger is consummated or alternatively rescissory damages and (iii) an award of costs, including attorneys’ and experts’ fees.

On September 21, 2022, a purported stockholder of Signify filed a lawsuit in the United States District Court for the Southern District of New York captioned O’Dell v. Signify Health, Inc., et al., Case No. 1:22-cv-08074. The complaint names Signify and members of the Board of Directors as defendants and alleges that the defendants made materially incomplete and misleading statements in the Preliminary Proxy about the proposed acquisition of Signify by CVS. Specifically, the complaint alleges that the defendants violated Section 14(a) of the Exchange Act and that each member of the Board of Directors violated Section 20(a) of the Exchange Act, on the basis of allegedly inadequate disclosures in the Preliminary Proxy regarding Signify’s financial projections, Goldman Sachs’s and Deutsche Bank’s respective financial analyses, and the sales process leading up to the proposed transaction. The complaint seeks, among other relief, (i) injunctive relief preventing the parties from proceeding with the Merger until the alleged disclosure deficiencies have been remedied, (ii) rescission in the event the Merger is consummated or alternatively rescissory damages and (iii) an award of costs, including attorneys’ and experts’ fees.

Signify believes that the claims asserted in the complaints are without merit and Signify intends to vigorously defend against the complaints; however, Signify cannot predict the amount of time and expense that will be required to resolve either or both of the complaints. Additional lawsuits may be filed against Signify, members of the Board of Directors or Signify’s officers in connection with the Merger, which could prevent or delay completion of the Merger and result in substantial costs to Signify, including any costs associated with indemnification.

 

81

PROPOSAL 1: ADOPTION OF THE MERGER AGREEMENT

The following summary describes the material provisions of the Merger Agreement. The descriptions of the Merger Agreement in this summary and elsewhere in this proxy statement are not complete and are qualified in their entirety by reference to the Merger Agreement, a copy of which is attached to this proxy statement as Annex A and incorporated into this proxy statement by reference. You should carefully read and consider the entire Merger Agreement, which is the legal document that governs the Merger, because this summary may not contain all the information about the Merger Agreement that is important to you. The rights and obligations of the parties are governed by the express terms of the Merger Agreement and not by this summary or any other information contained in this proxy statement.

The representations, warranties, covenants and agreements described below and included in the Merger Agreement (i) were made only for purposes of the Merger Agreement and as of specific dates; (ii) were made solely for the benefit of the parties to the Merger Agreement; and (iii) may be subject to important qualifications, limitations and supplemental information agreed to by Signify, CVS and Merger Subsidiary in connection with negotiating the terms of the Merger Agreement and contained in the confidential disclosure schedules. In addition, the representations and warranties have been included in the Merger Agreement for the purpose of allocating contractual risk between Signify, CVS and Merger Subsidiary 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 investors. Signify Stockholders are not 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 Signify, CVS and Merger Subsidiary 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. In addition, you should not rely on the covenants in the Merger Agreement as actual limitations on the respective businesses of Signify, CVS and Merger Subsidiary, because the parties may take certain actions that are either expressly permitted in the confidential disclosure schedule to the Merger Agreement or as otherwise consented to by the appropriate party, which consent may be given without prior notice to the public. The Merger Agreement is described below, and included as Annex A, only to provide you with information regarding its terms and conditions, and not to provide any other factual information regarding Signify, CVS, Merger Subsidiary 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 document and in our filings with the SEC regarding Signify and its business.

Effects of the Merger; Certificate of Incorporation; Bylaws; Directors and Officers

The Merger Agreement provides that, on the terms and subject to the satisfaction or, to the extent permissible under applicable Law, waiver of the conditions set forth in the Merger Agreement, and in accordance with the DGCL, at the Effective Time: (i) Merger Subsidiary will be merged with and into Signify, with Signify becoming a wholly-owned Subsidiary of CVS, (ii) the separate corporate existence of Merger Subsidiary will thereupon cease and (iii) Signify will continue as the Surviving Corporation.

From and after the Effective Time, until successors are duly elected or appointed and qualified in accordance with Law, (i) the directors of Merger Subsidiary immediately prior to the Effective Time will be the directors of the Surviving Corporation and (ii) the officers of Signify immediately prior to the Effective Time will be the officers of the Surviving Corporation. At the Effective Time, the Certificate of Incorporation will be amended and restated in its entirety to be in the form of the certificate of incorporation of Merger Subsidiary, and, as amended, will be the certificate of incorporation of the Surviving Corporation, and the bylaws of Merger Subsidiary as in effect immediately prior to the Effective Time will become the bylaws of the Surviving Corporation, each until thereafter amended as provided therein or in the certificate of incorporation of the Surviving Corporation or by Law.

 

82

Closing and Effective Time

The Merger Agreement requires the Closing to occur as soon as possible, but in any event no later than the third (3^rd) Business Day following the satisfaction or waiver of all conditions to closing of the Merger (described below under the caption, “—Conditions to the Closing of the Merger”) (other than those conditions to be satisfied at the Closing (or which are waived by the appropriate party)), or on such other date as agreed to by CVS and Signify consistent with DGCL. On the date of the Closing, the parties will file a certificate of merger with the Secretary of State of the State of Delaware and make all other filings required by DGCL in connection with the Merger. The time at which the Merger will become effective will occur at the Effective Time.

Merger Consideration

Common Stock

As a result of the Merger, at the Effective Time, each share of Class A Common Stock (other than (i) Class A Common Stock owned by Signify, CVS or Merger Subsidiary or any of their respective Subsidiaries and (ii) any shares of Company Stock owned by Signify Stockholders who properly exercise appraisal rights under the DGCL), including each share of Class A Common Stock resulting from the Redemption (described below), will be canceled and converted into the right to receive the Per Share Consideration.

After the Merger is completed, you will have the right to receive the Per Share Consideration in respect of each share of Class A Common Stock that you own (less any applicable withholding taxes), but you will no longer have any rights as a Signify Stockholder (except that Signify Stockholders who properly exercise, and do not withdraw, their appraisal rights will have a right to receive payment of the “fair value” of their shares as determined pursuant to an appraisal proceeding, as contemplated by Section 262). For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Appraisal Rights.”

Treatment of OpCo Units and Aggregator Units

Pursuant to the Merger Agreement, immediately prior to the Effective Time, in accordance with the OpCo LLC Agreement and the Certificate of Incorporation, (i) Signify will require each OpCo Member (excluding Signify and the Company Holding Subsidiary, but including Cure Aggregator, LLC) to effectuate a redemption of all of such OpCo Units, pursuant to which such OpCo Units will be exchanged for shares of Class A Common Stock on a one-for-one basis in accordance with the provisions of the OpCo LLC Agreement and (ii) each share of Class B Common Stock will automatically be canceled immediately upon the consummation of such redemptions, such that no shares of Class B Common Stock will remain outstanding immediately prior to the Effective Time.

Following the exchange of OpCo Units held by Aggregator LLC for shares of Class A Common Stock, in accordance with the provisions of the OpCo LLC Agreement, as described above, each Aggregator Unit will automatically be exchanged for such shares of Class A Common Stock held by Aggregator LLC on a one-for-one basis in accordance with the provisions of the OpCo LLC Agreement and the Aggregator LLC Agreement.

Treatment of Company Awards

Pursuant to the Merger Agreement:

 

•

At the Effective Time, each Cash-Out Stock Option will be canceled and converted into the right of the holder thereof to receive, without interest, an amount in cash determined by multiplying (i) the excess of $30.50 (i.e., the Per Share Consideration) over the exercise price of such Cash-Out Stock Option by (ii) the number of shares of Class A Common Stock subject to such Cash-Out Stock Option as of immediately prior to the Effective Time;

 

83

•

At the Effective Time, each Company Stock Option that is outstanding as of immediately prior to the Effective Time (whether vested or unvested) that contains solely performance-based conditions that remain unsatisfied after giving effect to all of the Transactions will be canceled for no consideration;

 

•

At the Effective Time, each Rollover Stock Option will be converted into an option to acquire, on substantially the same terms and conditions as were applicable under such Rollover Stock Option, the number of shares of CVS Health Stock (rounded down to the nearest whole share), determined by multiplying (x) the number of shares of Class A Common Stock subject to such Rollover Stock Option immediately prior to the Effective Time by (y) the Exchange Ratio, at an exercise price per share of CVS Health Stock (rounded up to the nearest whole cent) equal to (A) the exercise price per share of Class A Common Stock subject to such Rollover Stock Option divided by (B) the Exchange Ratio;

 

•

At the Effective Time, each Cash-Out RSU will be canceled and converted into the right of the holder thereof to receive, without interest, an amount in cash determined by multiplying (x) $30.50 by (y) the number of shares of Class A Common Stock subject to the Cash-Out RSU as of immediately prior to the Effective Time;

 

•

At the Effective Time, each Rollover RSU will be converted into a restricted stock unit, subject to substantially the same terms and conditions as were applicable under such Rollover RSU, with respect to a number of shares of CVS Health Stock determined by multiplying the number of shares of Class A Common Stock subject to such Rollover RSU immediately prior to the Effective Time by the Exchange Ratio; and

 

•

Immediately prior to the Effective Time, each Synthetic LLC Unit Award that is then outstanding will become fully vested (to the extent unvested) and will be canceled and converted into the right of the holder thereof to receive, without interest, an amount in cash determined by multiplying (i) the number of units subject to such Synthetic LLC Unit Award by (ii) $30.50.

Each Company Stock Option that is outstanding as of immediately prior to the Effective Time (whether vested or unvested) that contains solely performance-based conditions that remain unsatisfied after giving effect to all of the Transactions will be canceled for no consideration.

CVS has agreed in the Merger Agreement to use reasonable best efforts to cause CVS Health Stock issuable upon the settlement of Rollover RSUs and the exercise of Rollover Stock Options to be registered with the SEC on Form S-8 as promptly as practicable (but within ten (10) Business Days) following the Effective Time.

Treatment of Purchase Rights under Signify’s 2021 Employee Stock Purchase Plan

The Merger Agreement provides that Signify is required to take all actions necessary pursuant to the terms of the Company ESPP to provide that (i) no new offering periods will begin under the Company ESPP (unless the Merger Agreement is terminated), (ii) there will be no increase in the amount of participants’ payroll deduction elections during the current offering period, (iii) except as required by applicable law, no individual participating in the Company ESPP will be permitted to make separate non-payroll contributions to the Company ESPP, (iv) no individuals will commence participation in the Company ESPP during the period between the date of the Merger Agreement and the Effective Time and (v) each purchase right issued pursuant to the Company ESPP must be fully exercised on the earlier of (x) the scheduled purchase date for such offering period and (y) the date that is no later than five (5) Business Days on which the New York Stock Exchange is open for trading prior to the Effective Time. The Company ESPP will terminate effective immediately prior to the Effective Time.

Exchange and Payment Procedures

Prior to the Effective Time, CVS will appoint a U.S. bank or trust, reasonably acceptable to Signify, (the “Paying Agent”) and enter into a paying agent agreement with the Paying Agent for the purpose of acting as

 

84

agent in exchanging for the applicable portion of the Merger Consideration uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly following the Effective Time (but in no event later than two (2) Business Days after the Effective Time), Signify will send, or will cause the Paying Agent to send, to each holder of record of shares of Company Stock (other than (i) Company Stock owned by Signify, CVS or Merger Subsidiary or any of their respective Subsidiaries and (ii) any shares of Class A Common Stock issued and outstanding immediately prior to the Effective Time and held by a holder who has not voted in favor of adoption of the Merger Agreement and who has properly exercised appraisal rights in accordance with DGCL (the “Appraisal Shares”)) a letter of transmittal in a form that was reasonably acceptable to CVS and instructions (which will specify that the delivery will be effected, and risk of loss and title will pass, only upon receipt of an “agent’s message” from the Paying Agent regarding the book-entry transfer of Uncertificated Shares) for use in the exchange of such shares of Company Stock for such holder’s applicable portion of the Merger Consideration; provided, that if any holder of record of shares of Company Stock or OpCo Units requests in writing to Signify (at least five (5) Business Days prior to the Closing) to receive such letter of transmittal and instructions in advance of the Effective Time, Signify will send, or will cause the Paying Agent to send, to each such requesting holder such letter of transmittal and instructions in advance of the Effective Time. Prior to the Effective Time, CVS will deposit (or cause to be deposited) with the Paying Agent cash in an amount sufficient to pay the Merger Consideration (the “Payment Fund”).

Upon receipt of the letter of transmittal properly completed by the applicable holder and the receipt of an “agent’s message” (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) by Signify or Paying Agent (at least one (1) Business Day prior to the Effective Time), in accordance with the terms of such letter of transmittal, the holder of such certificate or book-entry shares will be entitled to receive the Per Share Consideration for each such share from the Payment Fund.

If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the transferred Uncertificated Share is registered, it will be a condition to such payment that (i) such Uncertificated Share will be properly transferred and (ii) the Person requesting such payment will pay to the Paying Agent any transfer or other taxes or fees required as a result of such payment to a Person other than the registered holder of such Uncertificated Share or establish to the satisfaction of the Paying Agent that such tax has been paid or is not payable. After the Effective Time, there will be no further registration of transfers of shares of Company Stock. If, after the Effective Time, Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent, they will be canceled and exchanged for the portion of the Merger Consideration as set forth in the Merger Agreement.

Any portion of the Payment Fund that remains undistributed to the former holders of shares of Company Stock entitled thereto one (1) year after the Effective Time will be returned to CVS, upon demand, and any such former holder of shares of Company Stock who has not exchanged shares of Company Stock for the Merger Consideration to which they are entitled in accordance with the Merger Agreement prior to that time will thereafter look only to CVS and the Surviving Corporation for payment of the applicable portion of the Merger Consideration, in respect of such shares of Company Stock, without any interest thereon. Any amount made available to the Paying Agent in respect of any Appraisal Shares will be returned to CVS, upon demand.

Withholding

Each of the Paying Agent, Merger Subsidiary, the Surviving Corporation and Parent are entitled to deduct and withhold from the consideration otherwise payable pursuant to the Merger Agreement to any Person such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of federal, state, local or foreign tax law. To the extent that any amounts are withheld and properly paid to the appropriate Taxing Authority, such amounts will be treated as having been paid to the Person in respect of which such deduction and withholding was made.

 

85

Representations and Warranties

The Merger Agreement contains representations and warranties of Signify, CVS and Merger Subsidiary.

Some of the representations and warranties in the Merger Agreement made by Signify are qualified as to “materiality,” “Material Adverse Effect” or “Material Adverse Effect on the Company.” For purposes of the Merger Agreement, “Material Adverse Effect” or “Material Adverse Effect on the Company” means any event, change, fact, condition, circumstance or occurrence that, when considered either individually or in the aggregate together with all other adverse events, changes, facts, conditions, circumstances or occurrences, has had or would reasonably be expected to have a material adverse effect on (i) the financial condition, business or results of operations of Signify and its Subsidiaries, taken as a whole, or (ii) the ability of Signify to timely consummate the Merger and any of the other Transactions or to comply with its obligations under the Merger Agreement; provided, however, that, for purposes of the forgoing clause (i), none of the following will constitute (either alone or in combination) or will be taken into account in determining whether or not there has been or would reasonably be expected to be a Material Adverse Effect (subject to the limitations set forth below):

 

(a)

the execution and delivery of the Merger Agreement or the other documents or agreements executed and delivered in connection with the Merger Agreement (the “Transaction Documents”), the consummation of the Transactions, or the announcement of any of the foregoing, the identity of CVS and its affiliates, or the taking of any action specifically required to be taken, or the failure to take any action specifically prohibited, by the Merger Agreement, including, in each case, their impact on relationships with or the volume of business with customers (including Governmental Authority (as defined in this proxy statement) customers), suppliers, vendors or employees or others having relationships with Signify or its Subsidiaries;

 

(b)

any communications by CVS or its affiliates regarding plans or intentions with respect to Signify or any of its Subsidiaries;

 

(c)

changes in global, foreign, national or regional economic, financial, regulatory or geopolitical conditions or events, in general, in each case, in the United States or elsewhere in the world, or any escalation or worsening of any of the foregoing, or any action taken by any federal, state or local governmental, regulatory or administrative authority, department, court, agency or official (“Governmental Authority”) in response to any of the foregoing;

 

(d)

changes in the equity, credit, debt, financial, currency or capital markets or changes in inflation, interest or exchange rates, in each case, in the United States or elsewhere in the world;

 

(e)

changes in anti-dumping actions, international tariffs, trade policies or any “trade war” or similar actions;

 

(f)

changes in (i) Law, (ii) regulations or generally applicable industry standards affecting Signify or any of its Subsidiaries or any of its customers, suppliers or vendors, (iii) generally accepted accounting principles in the United States (“GAAP”) or (iv) the authoritative interpretation, application or enforcement of any of the foregoing;

 

(g)

any hurricane, tornado, tsunami, flood, volcanic eruption, earthquake, nuclear incident, foreign or domestic social protest or social unrest (whether or not violent), weather conditions, power outages, internet service disruptions or electrical black-outs, wildfires or other natural or man-made disaster or other force majeure events affecting Signify or any of its Subsidiaries;

 

(h)

changes in the general business or economic conditions in any industry or any market in which Signify or any of its Subsidiaries operate;

 

(i)

any military conflict, military outbreak, war (whether or not declared), act of foreign or domestic terrorism, rebellion or insurrection, act of espionage or cyber-espionage, act of cyber-terrorism, internet- or cyber-attack or escalation of any of the foregoing or any hostilities, including, in each case, any such action carried out in whole or in part through use of the internet or impacting computers, systems, networks or electronic data;

 

86

(j)

epidemics, pandemics, other outbreaks of infectious disease (including in each of the foregoing, COVID-19), including in each case any quarantine restrictions (including any shelter in place, stay at home or similar orders or guidelines of any Governmental Authority or the World Health Organization), or any escalation or worsening of any of the foregoing;

 

(k)

any action taken or omitted to be taken, at the request or with the express written consent of CVS or in compliance with the Merger Agreement;

 

(l)

any failure by Signify or any of its Subsidiaries to meet internal or published projections, forecasts or estimates of Signify or any of its Subsidiaries (provided, however, that the underlying causes of such failure may, to the extent applicable and not otherwise excluded by the other exceptions in this definition, be considered in determining whether there has been a Material Adverse Effect);

 

(m)

Signify’s discontinued Bundled Payments for Care Improvements – Advanced Initiative (“BPCI-A”), Episode of Care and Community businesses (the “Discontinued Businesses”) or Signify’s decision to discontinue the Discontinued Businesses, including (i) any impairment or reduction in value of any asset to the extent used in the Discontinued Businesses, (ii) the outcome of the Center for Medicare and Medicaid Services’ (“CMS”) response to Signify’s objection to the most recent BPCI-A reconciliation, (iii) any adjustments or costs related to any reconciliation by CMS, including any reversal of revenue or cash payments owed to CMS as a result thereof, and any costs incurred in connection with the termination of any contracts (as defined in this proxy statement) in connection therewith or related to the Discontinued Businesses, (iv) any failure by Signify to achieve the projected or forecasted cost savings related to or as a result of the discontinuation of the Discontinued Businesses, (v) any facility closure costs related to or as a result of the discontinuation of the Discontinued Businesses and (vi) all other costs resulting from the discontinuation of the Discontinued Businesses;

 

(n)

any change in the price or trading volume of shares of Class A Common Stock or any other publicly traded securities of Signify (provided, however, that the underlying causes of such change may, to the extent applicable and not otherwise excluded by the other exceptions in the definition of “Material Adverse Effect” be considered in determining whether there has been a Material Adverse Effect);

 

(o)

any reduction in the credit rating of Signify or any of its Subsidiaries (provided, however, that the underlying causes of such change may, to the extent applicable and not otherwise excluded by the other exceptions in the definition of “Material Adverse Effect”, be considered in determining whether there has been a Material Adverse Effect);

 

(p)

any term, condition, obligation, requirement, limitation, prohibition, remedy, sanction or other action imposed upon Signify or any of its Subsidiaries in connection with effecting the expiration of any waiting period (and any extension thereof) under any antitrust Law applicable to the consummation of the Transactions or obtaining from a Governmental Authority any consent, approval, permit or authorization, in each case in accordance with and to the extent contemplated by the Merger Agreement; or

 

(q)

any litigation brought by current or former Signify Stockholders (on their own behalf or on behalf of Signify), whether under the applicable provisions of the DGCL or any other Law, or other litigation, to the extent in respect of the Merger Agreement or the Transactions;

provided that notwithstanding the foregoing, in the cases of clauses (c), (d), (e), (f), (g), (h), (i) and (j) above, to the extent such changes or conditions have had a disproportionately adverse effect on Signify or any of its Subsidiaries as compared to other Persons engaged in the same industry, but only such incremental disproportionate adverse effect may be taken into account in determining whether a Material Adverse Effect has occurred (and then only to the extent such incremental disproportionate adverse effect is not excluded by the other exceptions in this definition).

 

87

In the Merger Agreement, Signify has made customary representations and warranties to CVS and Merger Subsidiary that are subject, in some cases, to specified exceptions and qualifications contained in the Merger Agreement. These representations and warranties relate to, among other things:

 

•

valid corporate existence, due organization, good standing, authority to conduct business and the organizational documents of Signify;

 

•

Signify’s corporate power and authority to enter into and perform its obligations under the Merger Agreement and the Transactions, and the necessary vote of the Signify Stockholder in connection with the Merger Agreement;

 

•

the approval of the Board of Directors;

 

•

the absence of any actions or filings necessary to execute, deliver and perform the Merger Agreement and consummate the Transactions (other than the filing of the certificate of merger, compliance with requirements under the HSR Act, compliance with applicable securities and exchange Laws and any actions or filings the absence of which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Signify);

 

•

the absence of any conflict, creation or imposition of liens, violation or material alteration of any organizational documents, material contracts, material real property leases or applicable Laws to Signify;

 

•

the capital structure of Signify, the absence of any undisclosed exchangeable security, option, warrant or other right convertible into capital stock of Signify, the absence of any outstanding Company Stock and OpCo Units issued in violation of foreign, federal or state securities laws and the absence of undisclosed Company Awards;

 

•

the absence of any undisclosed voting agreement, voting trust, proxy or other contract, accrued but unpaid dividends or any other distributions with respect to Signify securities.

 

•

Signify’s Subsidiaries;

 

•

the accuracy and required filings of Signify’s SEC filings and Signify’s compliance with the Sarbanes-Oxley Act of 2002, as amended (the “Sarbanes-Oxley Act”) and the applicable listing and corporate governance rules and regulations of the NYSE;

 

•

the financial statements of Signify;

 

•

the truth and accuracy of the information included in this proxy statement;

 

•

the absence of certain changes or events;

 

•

the absence of certain liabilities;

 

•

compliance with certain Laws, orders and permits by Signify and its Subsidiaries;

 

•

litigation involving Signify;

 

•

certain business practices related to compliance with anti-corruption Laws;

 

•

certain real property leased by Signify or its Subsidiaries;

 

•

trademarks, patents, copyrights and other intellectual property matters;

 

•

tax matters;

 

•

employee benefit plans;

 

•

labor and employment matters;

 

•

insurance matters;

 

•

environmental matters;

 

88

•

the existence and enforceability of specified categories of Signify’s material contracts;

 

•

brokers’ and finders’ fees and other expenses payable in connection with the Merger Agreement;

 

•

the rendering of Goldman Sachs’ and Deutsche Bank’s financial opinions to Signify;

 

•

the inapplicability of anti-takeover statutes to the Merger; and

 

•

information systems, privacy and data security.

In the Merger Agreement, CVS and Merger Subsidiary have made customary representations and warranties to Signify that are subject, in some cases, to specified exceptions and qualifications contained in the Merger Agreement. These representations and warranties relate to, among other things:

 

•

valid corporate existence, due organization, good standing, authority to conduct business and the organizational documents of CVS and Merger Subsidiary;

 

•

CVS and Merger Subsidiary’s corporate power and authority to enter into and perform its obligations under the Merger Agreement and the Transactions;

 

•

the absence of any actions or filings necessary to execute, deliver and perform the Merger Agreement and consummate the Transactions (other than the filing of the certificate of merger, compliance with requirements under the HSR Act, compliance with applicable securities and exchange Laws and any actions or filings the absence of which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on CVS);

 

•

the absence of any conflict, violation or material alteration of any organizational documents, material contracts or applicable Laws to CVS or Merger Subsidiary;

 

•

the truth and accuracy of information included in this proxy statement;

 

•

litigation involving CVS or Merger Subsidiary;

 

•

lack of ownership of Company Stock by CVS or its Subsidiaries or affiliates, subject to certain exceptions;

 

•

the solvency of CVS and its Subsidiaries following the consummation of the Merger and the Transactions;

 

•

no vote of the stockholders of CVS being required to consummate the Merger and the Transactions;

 

•

brokers’ and finders’ fees and other expenses payable in connection with the Merger Agreement;

 

•

sufficiency of funds possessed by CVS to consummate the Merger;

 

•

no ownership by CVS or Merger Subsidiary, or any of their respective affiliates, of a business that competes with Signify;

 

•

certain national security matters related to “foreign persons”; and

 

•

non-reliance on certain estimates and forecasts of Signify provided to CVS and Merger Subsidiary.

The representations and warranties contained in the Merger Agreement will not survive the consummation of the Merger.

Conduct of Business Pending the Merger

The Merger Agreement provides that, from the date of the Merger Agreement until the earlier of the Effective Time and the valid termination of the Merger Agreement pursuant to the terms of the Merger Agreement (the “Interim Period”), except: (i) as disclosed in the disclosure letter provided by Signify in

 

89

connection with the Merger Agreement (the “Company Disclosure Letter”), (ii) as required by the express terms of the Merger Agreement and the other Transaction Documents, (iii) as required by Law, (iv) for actions taken in good faith (A) in response to COVID-19 to protect the health and safety of Signify’s or its Subsidiaries’ employees and other individuals having dealings with Signify or its Subsidiaries, (B) in response to business disruptions caused by COVID-19 or (C) pursuant to any Law, directive, pronouncement or guideline issued by a Governmental Authority for restrictions that relate to or arise out of COVID-19, unless otherwise prohibited by certain sections of the Merger Agreement (v) for actions taken in connection with the issuance of shares of Class A Common Stock in exchange for, or redemption of, OpCo Units and Class B Common Stock pursuant to the terms of the OpCo LLC Agreement, (vi) for actions taken in connection with the discontinuation of the Discontinued Businesses; provided, however, that Signify will not take any action that would result in the costs and expenses incurred in connection with the discontinuation of the Discontinued Businesses exceeding, in the aggregate, $50 million without the prior written consent of CVS, (vii) for actions taken to create the Company Holding Subsidiary and contribute OpCo Units representing a one percent (1%) interest in OpCo LLC to the Company Holding Subsidiary, (viii) for payment of certain “Tax Distributions” under the OpCo LLC Agreement, (ix) for payments made under the TRA prior to the termination of the TRA at the Effective Time and (x) for actions taken as approved in writing in advance by CVS (which approval will not be unreasonably withheld, conditioned or delayed), Signify will, and will cause each of its Subsidiaries to, use reasonable best efforts to conduct its business in the ordinary course.

In addition, Signify has also agreed that, subject to the exceptions in the immediately preceding paragraph, during the Interim Period, Signify will not, and will cause each of its Subsidiaries not to, among other things (and subject to certain specified exceptions):

 

•

amend the (i) Certificate of Incorporation and the Amended and Restated Bylaws of Signify (the “Bylaws”), (ii) amend the OpCo LLC Agreement, or (iii) amend in any material respect the organizational documents of any Subsidiary of Signify;

 

•

split, combine, subdivide or reclassify any securities of Signify or its Subsidiaries;

 

•

establish a record date for, declare, set aside or pay any dividend or make any other distributions (whether in cash, stock, property or otherwise) in respect of, or enter into or modify any contract with respect to the voting of, any securities of Signify or its Subsidiaries, other than dividends and distributions by (i) a direct or indirect wholly-owned Subsidiary of Signify to its parent or (ii) by OpCo LLC to Signify or (iii) redeem, repurchase or otherwise acquire any securities of Signify or its Subsidiaries, subject to certain specified exceptions;

 

•

issue, sell, grant, pledge or transfer any securities of Signify or its Subsidiaries, or amend awards granted under the Signify Health, Inc. 2021 Long-Term Incentive Plan, the Synthetic Equity Plan, the New Remedy Corp. Amended and Restated 2019 Equity Incentive Plan, the New Remedy Corp. Amended and Restated 2012 Equity Incentive Plan or the Company ESPP (together, the “Company Stock Plans”), except for certain specified exceptions;

 

•

incur capital expenditures or any obligations or liabilities in respect thereof in excess of $2.5 million individually or $5 million in the aggregate, in each case, for each fiscal quarterly period, other than to the extent that such capital expenditures are otherwise reflected in Signify’s capital expenditure budget set forth on the Company Disclosure Letter;

 

•

adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, restructuring, recapitalization, merger consolidation or other reorganization, each with respect to Signify or any of its Subsidiaries (other than the dissolution of any inactive Subsidiary of Signify);

 

•

make any acquisitions by merger, amalgamation, plan of arrangement, consolidation, acquisition of stock or assets or otherwise, directly or indirectly, if the aggregate amount of consideration paid would exceed $10 million for each fiscal quarterly period;

 

90

•

sell, lease, encumber, dispose of or otherwise transfer any of Signify’s or its Subsidiaries’ assets (other than a sale, lease or transfer from Signify or a wholly-owned Subsidiary of Signify to a wholly-owned Subsidiary of Signify), securities, properties, interests or businesses if the aggregate amount of consideration paid or transferred to Signify would exceed $10 million in connection therewith for each fiscal quarterly period, subject to certain specified exceptions;

 

•

exclusively license, abandon, dedicate to the public, or contribute as open source software, any material Signify intellectual property;

 

•

incur, create, assume or otherwise become liable for any indebtedness for borrowed money or any material obligation of another Person, including by way of a guarantee or issuance or sale of debt securities;

 

•

issue or sell options, warrants, calls or other rights to acquire any debt securities of Signify or any of its Subsidiaries or enter into any “keep well” or other contract to maintain any financial statement or similar condition of another person, subject to certain specified exceptions;

 

•

make any loans, advances or capital contribution to, or investments in, any other Person, subject to certain specified exceptions;

 

•

subject to certain specified exceptions, (i) enter into any employment deferred compensation or other similar agreements with any current or former directors, executive officers, employees or Service Providers outside of the ordinary course of business consistent with past practice with any newly hired directors, employees or Service Providers of Signify or any of its Subsidiaries who are neither executive officers nor entitled to earn an annual base salary or annual base fees that exceeds $300,000, (ii) hire any new employee entitled to earn an annual base salary that exceeds $300,000 to whom a written offer of employment has not previously been made prior to the date of the Merger Agreement, (iii) terminate the employment of any participant in the Signify Executive Severance Plan, effective July 27, 2022 and the participation agreements thereunder (the “Executive Severance Plan” and each participant thereunder a “Key Employee”) other than “for cause”, (iv) grant to any current or former director, officer or Key Employee entitled to earn over $300,000 in annual base compensation, any material increase in compensation, bonus or benefits, (v) grant any retention, severance, change in control, or transaction-based pay or benefits in addition to those pursuant to arrangement in effect on the date of the Merger Agreement, (vi) loan or advance any money or other property (or forgive or waive any such loan or advance) to any current or former Service Provider of Signify or any of its Subsidiaries who in each case is entitled to earn an annual base salary or annual base fee that exceeds $300,000, (vii) announce or implement any reduction in force, mass layoff, early retirement program, severance program or other program or effort concerning the group termination of employees, or (viii) establish, adopt, or amend, other than as required by Law or in the ordinary course of business consistent with past practice, or enter into any benefit plan;

 

•

adopt, enter into, engage in negotiations for, terminate or materially amend any collective bargaining agreement, works council or other similar agreement with an employee representative body;

 

•

make any changes in financial accounting principles, methods or practices, except for changes required by GAAP or Law;

 

•

except as required by Law, change or amend, in a manner that would reasonably be expected to be materially adverse to Signify or any of its Subsidiaries, any data privacy or information security practices;

 

•

make, change or revoke any material tax election, amend any income or other material tax return, change any material tax accounting period, adopt or change any material method of tax accounting, settle or compromise any proceeding relating to material taxes, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of taxes, enter into any “closing agreement” described in Section 7121 of the Code (or any corresponding or similar provision of state,

 

91

local or foreign Law), voluntarily apply for any tax ruling from any Governmental Authority responsible for the imposition or collection of taxes or voluntarily surrender any right to claim a refund of a material amount of taxes;

 

•

compromise or settle any threatened or actual cause of action, claim, investigation, suit, arbitration, indictment, litigation, proceeding or hearing by or before a Governmental Authority or arbitrator (“Action”) or demand, where such compromise or settlement involves payment by Signify or any of its Subsidiaries in excess of $500,000 individually, or $1.5 million in the aggregate (in each case, net of any insurance coverage), subject to certain specified exceptions;

 

•

enter into or modify any contract between Signify or any of its Subsidiaries, on the one hand, and any current director or officer of Signify or any Person (or any of their affiliates) beneficially owning five percent (5%) or more of the Company Stock or OpCo Units, on the other hand, subject to certain specified exceptions;

 

•

enter into any new line of business outside its existing business as of the date of the Merger Agreement that would be material to Signify and its Subsidiaries, taken as a whole;

 

•

enter into or adopt any “poison pill” or similar stockholder rights plan;

 

•

amend or modify in any material respect, waive any material rights under, terminate, replace or release, settle or compromise any material claim, liability or obligation under any material contract or material real property lease, subject to certain specified exceptions; or

 

•

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

Acquisition Proposals

For purposes of this proxy statement and the Merger Agreement:

“Acquisition Proposal” means, other than the Transactions, any bona fide offer or proposal made or renewed by any third party or “group” (within the meaning of Section 13(d)(3) of the 1934 Act) that would, if consummated, constitute (i) an acquisition, exclusive license, transfer, issuance or purchase, whether direct or indirect, of (A) assets equal to twenty percent (20%) or more of the consolidated assets of Signify and its Subsidiaries or to which twenty percent (20%) or more of the consolidated revenues or EBITDA of Signify and its Subsidiaries are attributable or (B) securities equal to twenty percent (20%) or more of the total outstanding shares or voting power of Company Stock and OpCo Units, taken together, (ii) any tender offer or exchange offer that would result in such third party or group beneficially owning twenty percent (20%) or more of the total outstanding shares or voting power of Company Stock and OpCo Units, taken together, or (iii) any merger, consolidation, statutory share exchange, business combination, sale, liquidation, dissolution, recapitalization, reorganization, joint venture or other similar extraordinary transaction, including any single or multi-step transaction or series of related transactions, involving assets, individually or in the aggregate, which constitute twenty percent (20%) or more of the consolidated assets of Signify and its Subsidiaries or which generate at least twenty percent (20%) or more of the consolidated revenues or EBITDA of Signify and its Subsidiaries or as a result of which the Signify Stockholders or unitholders of OpCo Units immediately prior to such transaction would cease to own more than eighty percent (80%) of the total outstanding shares or voting power of Company Stock and OpCo Units, taken together, immediately following such transaction.

“Superior Proposal” means a bona fide, written Acquisition Proposal (except the references in the definition thereof to “twenty percent (20%)” and “eighty percent (80%)” will be replaced by “fifty percent (50%)”) that did not result from or involve a breach of the Merger Agreement and which the Board of Directors has determined, in its good faith judgment, after consultation with its outside legal counsel and financial advisors, and taking into account all relevant terms and conditions of such Acquisition Proposal and all legal, regulatory and financing aspects (including certainty of closing) of such Acquisition Proposal and the Person making the Acquisition Proposal (including any termination or break-up fees and conditions to consummation) that the Board of Directors deems relevant, and which, if consummated, would result in a transaction more favorable to the Signify Stockholders (solely in their capacity as such) from a financial point of view than the Transactions.

 

92

Signify has agreed to, and has agreed to cause its Subsidiaries and their respective directors and officers to, and to direct its other respective Representatives involved in the Transactions to, promptly cease any solicitations, discussions and negotiations with any Person with respect to any Acquisition Proposal or potential Acquisition Proposal and promptly terminate access granted to any Person or its representatives (other than CVS and CVS’s representatives) to any non-public information of Signify or its Subsidiaries. In addition, during the period beginning with the date of the Merger Agreement and continuing until the earlier of (x) the valid termination of the Merger Agreement or (y) the Effective Time, Signify has agreed not to, and has agreed to cause its Subsidiaries not to, and has agreed to instruct its and its Subsidiaries’ Representatives involved in the Transaction not to:

 

•

initiate, solicit, knowingly induce, knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal or any inquiries that could reasonably be expected to result in an Acquisition Proposal (including by way of furnishing non-public information);

 

•

enter into or participate in any discussions or negotiations with any third party for the purpose of facilitating, inducing or encouraging an Acquisition Proposal;

 

•

provide any material non-public information relating to Signify or any of its Subsidiaries to any Person (other than CVS or Merger Subsidiary) for the purposes of facilitating, inducing or encouraging an Acquisition Proposal; or

 

•

enter into any agreement with respect to an Acquisition Proposal.

At any time prior to obtaining the Company Stockholder Approval, if Signify or any of its Representatives has received a written Acquisition Proposal from any third party that did not result from a breach in any material respect of the non-solicitation covenants in the Merger Agreement, Signify and its Representatives may contact the third party making such Acquisition Proposal to clarify the terms and conditions of such Acquisition Proposal or inform such Person of the existence of the non-solicitation provisions of the Merger Agreement.

At any time after the date of the Merger Agreement and prior to the receipt of the Company Stockholder Approval, if Signify receives an Acquisition Proposal that did not result from a breach in any material respect of the non-solicitation covenants in the Merger Agreement and the Board of Directors determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and the failure to take the following actions would reasonably be expected to be inconsistent with its fiduciary duties pursuant to DGCL, then Signify may (a) furnish information with respect to Signify to such Person and (b) engage or participate in discussion or negotiations with such Person and its representatives regarding such Acquisition Proposal; provided that (i) Signify will not, and will instruct its representatives not to, disclose any non-public information to such Person unless Signify has entered into a confidentiality agreement with such Person with terms governing confidentiality and related provisions that are no less favorable to Signify in any material respect than those contained in the Confidentiality Agreement, dated July 6, 2022, by and between CVS Health and Signify (the “Confidentiality Agreement”) and (ii) Signify will provide or make available to CVS promptly (and in any event within twenty-four (24) hours) any non-public information concerning Signify or its Subsidiaries provided or made available to such other Person that was not previously provided or made available to CVS and Merger Subsidiary.

Relatedly, from and after the date of the Merger Agreement, and subject to any confidentiality restrictions in effect on the date of the Merger Agreement, Signify will promptly (within twenty-four (24) hours of any Acquisition Proposal received in writing and within forty-eight (48) hours of any Acquisition Proposal received verbally) notify CVS if Signify receives any Acquisition Proposal and will, with any such written notice to CVS, include copies of any written materials relating to such Acquisition Proposal (including materials provided by Signify in response thereto) and indicate the identity of the Person making such Acquisition Proposal and the material terms and conditions of such Acquisition Proposal and thereafter will promptly (within twenty-four (24) hours) keep CVS reasonably informed on a reasonably current basis of any material change to the terms of

 

93

any such Acquisition Proposal, including by providing a copy of all additional material written documentation relating thereto.

As described below under the caption “Proposal 1: Adoption of the Merger Agreement—Effect of Termination; Termination Fees”, if Signify terminates the Merger Agreement prior to receipt of the Company Stockholder Approval for the purpose of accepting and entering into an agreement in respect of a Superior Proposal, Signify is required to pay the Company Termination Fee to CVS.

Board of Directors’ Recommendation; Signify Adverse Recommendation Change

As described above, and subject to the provisions described below, the Board of Directors has made the recommendation that the Signify Stockholders vote “FOR” the proposal to adopt the Merger Agreement. The Merger Agreement provides that the Board of Directors will not effect an Adverse Recommendation Change except as described below.

For purposes of this proxy statement and the Merger Agreement, “Adverse Recommendation Change” means:

 

•

failing to make, withdrawing, amending, changing, modifying or qualifying or proposing publicly to withdraw, amend, change, modify or qualify, in a manner adverse to CVS or Merger Subsidiary, the recommendation of the Board of Directors that the Signify Stockholders approve the adoption of the Merger Agreement and the Transactions (including the Merger on the terms and subject to the conditions set forth in the Merger Agreement) (such recommendation, the “Company Board Recommendation”), including facility to include the Company Board Recommendation in this proxy statement;

 

•

the Board of Directors failing to recommend against a tender or exchange offer related to an Acquisition Proposal in any position taken in accordance with Rules 14d-9 and 14e-2 promulgated under the Exchange Act;

 

•

adopting, endorsing, approving, recommending or declaring advisable, or proposing publicly to adopt, endorse, approve, recommend or declare advisable, or submitting to the Signify Stockholders for approval or adoption, any Acquisition Proposal; or

 

•

the failure by the Board of Directors to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of receiving a written request from CVS to provide such public reaffirmation following receipt by Signify of a publicly announced Acquisition Proposal, provided, that CVS may deliver only one (1) such request with respect to any Acquisition Proposal.

For purposes of this proxy statement and the Merger Agreement, “Intervening Event” means a change, effect, event, circumstance, occurrence, development or other matter that materially affects the business, assets or operations of Signify and its Subsidiaries, taken as a whole (other than any change, effect, event, circumstance, occurrence, development or other matter primarily resulting from a breach of the Merger Agreement by Signify) occurring or arising after the date of the Merger Agreement that was not known to the Board of Directors or any committee thereof as of the date of the Merger Agreement, nor reasonably foreseeable as of the date of the Merger Agreement, which change, effect, event, circumstance, occurrence, development or other matter becomes known to the Board of Directors or any committee thereof prior to the date on which the Company Stockholder Approval is obtained; provided, however, that in no event will (i) any Acquisition Proposal, (ii) any change in the Company Stock price, in and of itself, or (iii) the fact, in and of itself, that Signify exceeds any internal or published projections, estimates or expectations of Signify’s revenue, earnings or other financial performance or results of operations for any period constitute an Intervening Event (however, the underlying reasons for such changes or events described in clauses (ii) and (iii) above may constitute an Intervening Event).

The Board of Directors will not, subject to the terms and conditions of the Merger Agreement, (i) cause or permit Signify or any of its Subsidiaries to enter into any acquisition agreement, merger agreement, or similar

 

94