UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
SCHEDULE 14D-9
(Rule 14d-101)
Solicitation/Recommendation Statement
Under Section 14(d)(4) of the Securities Exchange Act of 1934
EVERYDAY HEALTH, INC.
(Name of Subject Company)
EVERYDAY HEALTH, INC.
(Name of Person Filing Statement)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
300415106
(CUSIP Number of Class of Securities)
Alan Shapiro
Executive Vice President
& General Counsel
Everyday Health, Inc.
345 Hudson Street, 16th Floor
New York, NY 10014
(646) 728-9500
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications
on Behalf of the Person Filing Statement)
With copies to:
Babak Yaghmaie
Darren DeStefano
Ron Hopkinson
Cooley LLP
1114 Avenue of the Americas
New York, NY 10036-7798
(212) 479-6000
| ¨ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
This Amendment No. 1 (this “Amendment”) to Schedule 14D-9 amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 (as amended or supplemented from time to time, the “Schedule 14D-9”), initially filed by Everyday Health, Inc., a Delaware corporation (“Everyday Health”), with the Securities and Exchange Commission (the “SEC”) on November 2, 2016, relating to the tender offer by Project Echo Acquisition Corp., a Delaware corporation (“Purchaser”) and a direct wholly-owned subsidiary of Ziff Davis, LLC, a Delaware limited liability company (“Parent”) and a wholly-owned subsidiary of j2 Global, Inc., a Delaware corporation, to purchase all of the outstanding shares of Everyday Health’s Common Stock (the “Shares”) at a purchase price of $10.50 per Share, in cash, without interest and less any applicable withholding taxes or other taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated November 2, 2016 (as it may be amended or supplemented from time to time, the “Offer to Purchase”), and the related Letter of Transmittal (as it may be amended or supplemented from time to time, the “Letter of Transmittal” and, together with the Offer to Purchase, the “Offer”).
Except as otherwise set forth below, the information set forth in the Schedule 14D-9 remains unchanged and is incorporated by reference as relevant to the items in this Amendment. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Schedule 14D-9. This Amendment is being filed to reflect certain updates as reflected below.
| Item 8. | Additional Information. |
The information set forth in Item 8. “Additional Information—Antitrust Compliance” beginning on page 39 of the Schedule 14D-9 is hereby replaced in its entirety with the following:
“Under the HSR Act, and the related rules and regulations that have been issued by the Federal Trade Commission (the “FTC”), certain transactions may not be consummated until required information and documentary material has been furnished to the Antitrust Division of the Department of Justice (the “Antitrust Division”) and the applicable waiting period requirements have been satisfied. These requirements apply to Purchaser’s acquisition of the Shares in the Offer and the Merger.
Everyday Health and Parent each filed a Premerger Notification and Report Form, including a request for early termination of the waiting period, with the FTC and the Antitrust Division on October 27, 2016 for review in connection with the Offer. The request for early termination of the waiting period was granted effective 9:41 A.M., New York City time, on November 14, 2016. Accordingly, the condition to the Offer requiring that any applicable waiting period under the HSR Act shall have expired or been terminated has been satisfied. The Offer continues to be subject to the remaining conditions set forth in the Offer to Purchase.
Even though the requisite waiting period under the HSR Act has been terminated, at any time before or after Purchaser’s acceptance for payment of Shares pursuant to the Offer, if the FTC believes that the Offer would violate the U.S. federal antitrust laws by substantially lessening competition in any line of commerce affecting U.S. consumers, the FTC has the authority to challenge the transaction by seeking a federal court order enjoining the transaction or, if Shares have already been acquired, requiring disposition of such Shares, or the divestiture of assets of Parent, Everyday Health or any of their respective subsidiaries or affiliates. The U.S. Department of Justice Antitrust Division, U.S. state attorneys general and private persons may also bring legal action under the U.S. federal antitrust laws. While Everyday Health believes that the consummation of the Offer will not violate any U.S. federal antitrust law, there can be no assurance that a challenge to the Offer on antitrust grounds will not be made or, if a challenge is made, what the result will be.
Parent and Everyday Health and certain of their subsidiaries conduct business in several countries outside of the United States. After execution of the Merger Agreement, Parent and Everyday Health determined that no foreign antitrust filings would be required in connection with the Merger.”
| 2 |
In addition, the information set forth in Item 8. “Additional Information—Legal Proceedings” on page 39 of the Schedule 14D-9 is hereby replaced in its entirety with the following:
“Between November 11, 2016 and November 15, 2016, three putative class action lawsuits were filed on behalf of the public stockholders of Everyday Health (captionedMeans v. Everyday Health, Inc., et al., No. 1:16-cv-08768;Jordan v. Everyday Health, Inc., et al., No. 1:16-cv-08836; andHanson v. Everyday Health, Inc., et al., No. 1:16-cv-08847) in the United States District Court for the Southern District of New York against Everyday Health, members of the Everyday Health Board (the “Individual Defendants”) and, in one case, Parent, Purchaser and j2. The complaints generally allege that the defendants violated Section 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), by issuing a Schedule 14D-9 that was materially misleading and omitted material facts related to, including, among other things, background of the proposed Transactions, data and inputs underlying the financial valuation exercises that support the opinion provided by Qatalyst Partners, and Everyday Health’s financial projections relied upon by Qatalyst Partners. The complaints also allege that the Individual Defendants violated Section 20(a) of the Exchange Act, as controlling persons who had the ability to prevent the Schedule 14D-9 from being materially false and misleading. In addition, one complaint alleges that the Individual Defendants violated their fiduciary duties of care, loyalty, good faith and candor owed to Everyday Health stockholders by, among other things, failing to take reasonable steps to obtain or ensure that Everyday Health stockholders receive adequate consideration for their stock, agreeing to restrictive deal protection devices that allegedly deter other suitors from making a superior bid for Everyday Health and causing an allegedly materially incomplete and misleading Schedule 14D-9 to be filed with the SEC. Further, such complaint alleges that Everyday Health, Parent, Purchaser and j2 aided and abetted the Individual Defendants’ alleged breaches of fiduciary duties. The actions seek, among other things, an injunction against the consummation of the proposed Transactions, the imposition of a constructive trust, in favor of the plaintiff and the class, upon any benefits improperly received by the defendants or the award of rescissory damages, and the award of costs and disbursements for the actions, including reasonable attorneys’ and experts’ fees. The defendants believe that the allegations in the complaints lack any merit and intend to vigorously defend against the actions.”
| Item 9. | Exhibits. |
Item 9 of the Schedule 14D-9 is hereby amended and supplemented by adding the following to the list of exhibits that appears therein:
Exhibit | Description | |
| (a)(5)(i) | Tender Offer Q&A distributed to Everyday Health employees on November 15, 2016. | |
| 3 |
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
| EVERYDAY HEALTH, INC. | ||
| By: | /s/ Alan Shapiro | |
| Name: | Alan Shapiro | |
| Title: | Executive Vice President and General Counsel | |
Dated: November 15, 2016
