Oracle Corp SC TO-T/A, filed Apr 11, 2022
Oracle Corp (ORCL)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule TO
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 5)
CERNER CORPORATION
(Name of Subject Company (Issuer))
CEDAR ACQUISITION CORPORATION
(Offeror)
a subsidiary of
OC ACQUISITION LLC
(Parent of Offeror)
a subsidiary of
ORACLE CORPORATION
(Parent of Offeror)
(Names of Filing Persons)
Common Stock, Par Value $0.01 per share
(Title of Class of Securities)
156782104
(CUSIP Number of Class of Securities)
Brian S. Higgins
Senior Vice President, Associate General Counsel and Secretary
Oracle Corporation
2300 Oracle Way
Austin, Texas 78741
Telephone: (737) 867-1000
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
With copies to:
Keith A. Flaum
Christopher R. Moore
Tiffany P. Posil
Hogan Lovells US LLP
4085 Campbell Avenue, Suite 100
Menlo Park, California 94025
Telephone: (650) 463-4000
CALCULATION OF FILING FEE
| Transaction Valuation* | Amount of Filing Fee* | |
| $28,477,199,240.00 | $2,639,836.37 |
| * | Estimated solely for purposes of calculating the filing fee. This calculation is based on the offer to purchase all of the issued and outstanding shares of common stock, par value $0.01 per share, of Cerner Corporation (“Cerner”), at a purchase price of $95.00 per share, net to the seller in cash, without interest thereon and subject to any required tax withholding. Such shares consist of: (i) 292,952,521 shares of common stock of Cerner that were issued and outstanding as of January 11, 2022; (ii) 3,262,118 shares of common stock of Cerner potentially issuable upon exercise of outstanding exercisable in-the-money stock options as of January 11, 2022; (iii) 2,995,301 shares of common stock of Cerner issuable upon the settlement of outstanding restricted stock units as of January 11, 2022; and (iv) 550,052 shares of common stock of Cerner issuable upon the settlement of outstanding performance share units as of January 11, 2022. The foregoing figures have been provided by the issuer to the offeror and are as of January 11, 2022, the most recent practicable date. |
| ** | The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for Fiscal Year 2022, issued August 23, 2021, by multiplying the transaction value by 0.0000927. |
| ☒ | Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the form or schedule and the date of its filing. |
| Amount Previously Paid: $2,639,836.37 | Filing Party: Cedar Acquisition Corporation, OC Acquisition LLC and Oracle Corporation | |
| Form of Registration No.: Schedule TO | Date Filed: January 19, 2022 |
| ☐ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
| ☒ | Third-party tender offer subject to Rule 14d-1. |
| ☐ | Issuer tender offer subject to Rule 13e-4. |
| ☐ | Going-private transaction subject to Rule 13e-3. |
| ☐ | Amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender offer: ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
| ☐ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
| ☐ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
This Amendment No. 5 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO (together with any amendments and supplements thereto, the “Schedule TO”), filed with the Securities and Exchange Commission on January 19, 2022 by Cedar Acquisition Corporation, a Delaware corporation (“Purchaser”), which is a wholly owned subsidiary of OC Acquisition LLC, a Delaware limited liability company, which is a wholly owned subsidiary of Oracle Corporation, a Delaware corporation (“Oracle”). The Schedule TO relates to the offer by Purchaser to purchase all of the issued and outstanding shares of common stock, par value $0.01 per share (the “Shares”), of Cerner Corporation, a Delaware corporation, at a purchase price of $95.00 per Share net to the seller in cash, without interest thereon and subject to any required tax withholding, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated January 19, 2022 (the “Offer to Purchase”), and in the related Letter of Transmittal, copies of which are attached to the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively.
Except as otherwise set forth in this Amendment, the information set forth in the Schedule TO remains unchanged and is incorporated herein by reference to the extent relevant to the items in this Amendment. Capitalized terms used but not defined herein have the meanings ascribed to them in the Schedule TO.
Items 1 through 9 and 11.
The Offer to Purchase and Items 1 through 9 and 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, are hereby amended and supplemented by adding the following text thereto:
“On April 11, 2022, Purchaser extended the expiration of the Offer. The Offer was previously scheduled to expire at 12:00 midnight, Eastern Time, at the end of the day on April 13, 2022. The expiration date of the Offer has been extended until 12:00 midnight, Eastern Time, at the end of the day on May 11, 2022, unless further extended. American Stock Transfer & Trust Company, LLC, the depositary for the Offer, has indicated that as of 12:00 midnight, Eastern Time, at the end of the day on April 8, 2022, approximately 33,951,780 Shares had been validly tendered into and not validly withdrawn from the Offer, representing approximately 11.5% of the outstanding Shares.
On April 11, 2022, Oracle issued a press release announcing the extension of the Offer. The full text of the press release is attached as Exhibit (a)(5)(N) to the Schedule TO and is incorporated herein by reference.”
Adding a new paragraph to the end of the section captioned “Regulatory Approvals—Foreign Competition Laws—Canada” under Section 16 – “Certain Legal Matters; Regulatory Approvals” as set forth below:
“On April 5, 2022, Oracle received unconditional clearance of the transaction from the Commissioner, who issued an advance ruling certificate under subsection 102(1) of the Competition Act.”
Adding a new paragraph to the end of the section captioned “Regulatory Approvals—Other Regulatory Approvals—Germany” under Section 16 – “Certain Legal Matters; Regulatory Approvals” as set forth below:
“On March 30, 2022, Oracle received unconditional clearance from the German Federal Ministry for Economic Affairs and Climate Action (hereinafter referred to as “BMWK,” previously referred to as BMWi).”
Adding a new paragraph to the end of the section captioned “Regulatory Approvals—Other Regulatory Approvals—Romania” under Section 16 – “Certain Legal Matters; Regulatory Approvals” as set forth below:
“On April 8, 2022, Oracle received unconditional clearance from the National Defense Council (Consiliul Suprem de Apărare al Ţării) in Romania.”
Amendments to the Offer to Purchase and Exhibits to the Schedule TO
All references to “12:00 midnight, Eastern Time, at the end of the day on April 13, 2022” set forth in the Offer to Purchase (Exhibit (a)(1)(A)), Letter of Transmittal (Exhibit (a)(1)(B)), Notice of Guaranteed Delivery (Exhibit (a)(1)(C)), Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(D)), and Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(E)), each as amended by Amendment No. 4 to the Schedule TO, are hereby amended and replaced with “12:00 midnight, Eastern Time, at the end of the day on May 11, 2022.”
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits:
SIGNATURES
After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Date: April 11, 2022
| Cedar Acquisition Corporation | ||
| By: | /s/ Brian S. Higgins | |
| Name: Brian S. Higgins | ||
| Title: Senior Vice President and Secretary | ||
| OC Acquisition LLC | ||
| By: | /s/ Brian S. Higgins | |
| Name: Brian S. Higgins | ||
| Title: Senior Vice President, Legal | ||
| Oracle Corporation | ||
| By: | /s/ Brian S. Higgins | |
| Name: Brian S. Higgins | ||
| Title: Senior Vice President, Associate | ||
| General Counsel and Secretary | ||
Exhibit (a)(5)(N)
For Immediate Release
Expiration Date of Tender Offer for Cerner Corporation Shares Extended to May 11, 2022
AUSTIN, Texas, Apr. 11, 2022 — Oracle Corporation (NYSE: ORCL) (“Oracle”) announced today that it has extended its tender offer in connection with the acquisition of Cerner Corporation (Nasdaq: CERN) (“Cerner”) until May 11, 2022.
In accordance with the terms of its merger agreement with Cerner, Cedar Acquisition Corporation, a subsidiary of OC Acquisition LLC, which is a subsidiary of Oracle, has extended the all-cash tender offer for $95.00 per share for all of the issued and outstanding shares of common stock of Cerner (the “Shares”) to 12:00 midnight, Eastern Time, at the end of the day on May 11, 2022. The tender offer was previously scheduled to expire at 12:00 midnight, Eastern Time, at the end of the day on April 13, 2022.
The tender offer remains subject to, among other conditions, clearances under applicable foreign competition and foreign direct investment laws. The tender offer was extended to allow additional time for the satisfaction of the remaining conditions to the tender offer.
Except for the extension of the tender offer, all other terms and conditions of the tender offer remain unchanged. The tender offer may be extended further in accordance with the merger agreement and the applicable rules and regulations of the U.S. Securities and Exchange Commission (the “SEC”).
American Stock Transfer & Trust Company LLC, the depositary for the tender offer, has indicated that as of 12:00 midnight, Eastern Time, at the end of the day on April 8, 2022, approximately 33,951,780 Shares had been validly tendered into and not validly withdrawn from the tender offer, representing approximately 11.5% of the outstanding Shares.
About Oracle
Oracle offers integrated suites of applications plus secure, autonomous infrastructure in the Oracle Cloud. For more information about Oracle (NYSE: ORCL), please visit us at www.oracle.com.
Trademarks
Oracle, Java, and MySQL are registered trademarks of Oracle Corporation.
Cautionary Statement Regarding Forward-Looking Statements
This document may contain certain forward-looking statements about Oracle and Cerner, including statements that involve risks and uncertainties concerning Oracle’s proposed acquisition of Cerner, anticipated customer benefits and general business outlook. When used in this document, the words “can”, “will”, “expect”, “opportunity”, “promises”, “goal” and similar expressions and any other statements that are not historical facts are intended to identify those assertions as forward-looking statements. Any such statement may be influenced by a variety of factors, many of which are beyond the control of Oracle or Cerner, that could cause actual outcomes and results to be materially different from those projected, described, expressed or implied in this document due to a number of risks and uncertainties. Potential risks and uncertainties include, among others, the possibilities that the transaction will not close or that the closing may be delayed, that the anticipated synergies may not be
achieved after closing, and that the combined operations may not be successfully integrated in a timely manner, if at all; general economic conditions in regions in which either company does business; the impact of the COVID-19 pandemic on how Oracle, Cerner and their respective customers are operating their businesses and the duration and extent to which the pandemic will impact Oracle’s or Cerner’s future results of operations; and the possibility that Oracle or Cerner may be adversely affected by other economic, business, and/or competitive factors. Accordingly, no assurances can be given that any of the events anticipated by the forward-looking statements will transpire or occur, or if any of them do so, what impact they will have on the results of operations or financial condition of Oracle or Cerner.
In addition, please refer to the documents that Oracle and Cerner, respectively, file with the SEC on Forms 10-K, 10-Q and 8-K. These filings identify and address other important factors that could cause Oracle’s and Cerner’s respective operational and other results to differ materially from those contained in the forward-looking statements set forth in this document. You are cautioned to not place undue reliance on forward-looking statements, which speak only as of the date of this document. Except as required by law, neither Oracle nor Cerner is under any duty to update any of the information in this document.
Additional Information about the Acquisition and Where to Find It
This communication does not constitute an offer to buy or solicitation of an offer to sell Shares. This communication is for informational purposes only. The tender offer is not being made to, nor will tenders be accepted from, or on behalf of, holders of Shares in any jurisdictions in which the making of the tender offer or the acceptance thereof would not comply with the laws of that jurisdiction.
The tender offer is being made pursuant to a Tender Offer Statement on Schedule TO (including an Offer to Purchase, a related Letter of Transmittal and certain other tender offer documents) filed by Cedar Acquisition Corporation with the SEC on January 19, 2022, as amended or supplemented from time to time. In addition, on January 19, 2022, Cerner filed a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC related to the tender offer, which has been amended or supplemented from time to time. Holders of Shares are urged to read these documents carefully (as each may be amended or supplemented from time to time) because they contain important information that holders of Shares should consider before making any decision regarding tendering their Shares. The Offer to Purchase, the related Letter of Transmittal and certain other tender offer documents, as well as the Solicitation/Recommendation Statement, are available to all holders of Shares at no expense to them. The tender offer materials and the Solicitation/Recommendation Statement are available for free at the SEC’s website at www.sec.gov.
Oracle and Cerner also file annual, quarterly and special reports and other information with the SEC, which are available at the SEC’s website at www.sec.gov.