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. 4)
MICROS SYSTEMS, INC.
(Name of Subject Company (Issuer))
ROCKET 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 $0.025 Per Share
(Title of Class of Securities)
594901100
(Cusip Number of Class of Securities)
Dorian Daley
Senior Vice President, General Counsel and Secretary
Oracle Corporation
500 Oracle Parkway
Redwood City, California 94065
Telephone: (650) 506-7000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
Keith A. Flaum
James R. Griffin
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood City, California 94065
Telephone: (650) 802-3000
CALCULATION OF FILING FEE
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| Transaction Valuation* | Amount of Filing Fee** | |
| $5,443,494,248 | $701,122.06 | |
|
| ||
|
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| * | 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 $0.025 per share, of MICROS Systems, Inc. (the “Company”), at a purchase price of $68.00 per share, net to the seller in cash, without interest thereon and subject to any required tax withholding. Such shares consist of: (i) 74,817,363 shares of common stock of the Company that were issued and outstanding as of June 25, 2014; (ii) 4,175,192 shares common stock of the Company potentially issuable upon exercise of outstanding exercisable in-the-money stock options as of June 25, 2014; and (iii) 1,058,831 shares of common stock of the Company potentially issuable pursuant to outstanding stock options that may undergo accelerated vesting and be settled for shares of common stock of the Company in connection with the Offer. The foregoing figures have been provided by the issuer to the offeror and are as of June 25, 2014, 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 2014, issued August 30, 2013, by multiplying the transaction value by 0.00012880. |
| x | Check 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: $701,122.06 | Filing Party: Rocket Acquisition Corporation, OC Acquisition LLC and Oracle Corporation | |
| Form or Registration No.: Schedule TO | Date Filed: July 3, 2014 |
| ¨ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
| x | third–party tender offer subject to Rule 14d–1. |
| ¨ | 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. 4 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO (together with any subsequent amendments and supplements thereto, the “Schedule TO”), filed with the Securities and Exchange Commission on July 3, 2014 by Rocket Acquisition Corporation, a Maryland corporation (“Purchaser”), a subsidiary of OC Acquisition LLC, a Delaware limited liability company (“Parent”), which is a 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, $0.025 per share (the “Shares”), of MICROS Systems, Inc., a Maryland corporation (the “Company”), at a purchase price of $68.00 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 July 3, 2014 (the “Offer to Purchase”) and in the related Letter of Transmittal (which, together with the Offer to Purchase, as they may be amended or supplemented from time to time, collectively constitute the “Offer”), 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 Item 11.
Items 1 through 9 and Item 11 are hereby amended and supplemented to include the following:
“The Offer was scheduled to expire at 12:00 midnight, New York City time, at the end of July 31, 2014. In accordance with the terms of the Merger Agreement, the Expiration Date of the Offer is extended until 12:00 midnight, New York City time at the end of August 15, 2014, unless further extended. As of 12:00 midnight, New York City time, at the end of July 28, 2014, approximately 74,902,285 Shares were issued and outstanding, and 1,896,113 Shares have been tendered into and not properly withdrawn from the Offer.”
The Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, are hereby amended by:
Amending and restating the fourth paragraph in Section 16 – “Certain Legal Matters; Regulatory Approvals – Antitrust Compliance” beginning on page 41 of the Offer to Purchase to read as follows:
“We and the Company also conduct business outside of the United States. Under the EC Merger Regulation, the purchase of Shares pursuant to the Offer and the Merger may not be completed until the expiration of a 25 business day waiting period following the filing of a notification (Form CO) concerning the Offer (and the Merger) with the European Commission (the “Commission”), unless the waiting period is earlier terminated. The waiting period starts the first business day after the filing of the notification. On July 24, 2014, the Form CO was submitted by us, which began the 25 business day review period. The review period is scheduled to terminate on August 29, 2014, unless extended by the Commission.”
Amending and restating the fourth paragraph in Section 16 – “Certain Legal Matters; Regulatory Approvals – Legal Proceedings” beginning on page 43 of the Offer to Purchase to read as follows:
“On July 11, 2014, plaintiffs in the Boudreaux, Stein, Rosenfeld and Scott cases filed motions to expedite discovery and shorten the time to respond to the motions. On July 16, 2014, all five class action complaints described above (i.e. the Boudreaux, Stein, Rosenfeld, Scott and Publishers cases) were consolidated by order of the Circuit Court into a single action under the caption Scott v. MICROS Systems, Inc. et al. Consolidated Case. No. 13C14099672. Also, on July 16, 2014, plaintiff in the Boudreaux case filed a motion for a temporary restraining order (“TRO”) to prevent proceeding with the Offer and a motion to shorten the time to respond to the TRO. On July 21, 2014, the defendants in the actions filed their oppositions to the motions to expedite and the motion for a TRO.
On July 22, 2014, the Circuit Court held a hearing on the four plaintiffs’ motions for expedited discovery and one plaintiff’s motion for TRO. The Circuit Court denied the plaintiffs’ motion for expedited discovery and continued the motion for TRO until a hearing scheduled for July 31, 2014 to address both the TRO and a preliminary injunction. The plaintiffs did not move for a preliminary injunction and on July 25, 2014 withdrew their request for a TRO and requested that the scheduled July 31, 2014 hearing be cancelled.”
Item 12.
Item 12 of the Schedule TO is hereby amended and supplemented as follows:
| Index No. |
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| (a)(5)(K) | Press Release issued by Oracle on July 29, 2014, announcing the extension of the Offer. | |
SIGNATURES
After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certify that the information set forth in this statement is true, complete and correct.
Date: July 29, 2014
| Rocket Acquisition Corporation | ||
| By: | /s/ Dorian Daley | |
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| Name: | Dorian Daley | |
| Title: | President | |
| OC Acquisition LLC | ||
| By: | /s/ Dorian Daley | |
|
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| Name: | Dorian Daley | |
| Title: | President | |
| Oracle Corporation | ||
| By: | /s/ Dorian Daley | |
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| Name: | Dorian Daley | |
| Title: | Senior Vice President, General Counsel and Secretary | |
EXHIBIT INDEX
| Exhibit No. |
Description | |
| (a)(1)(A) |
Offer to Purchase dated July 3, 2014.* | |
| (a)(1)(B) |
Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on IRS Form W-9).* | |
| (a)(1)(C) |
Notice of Guaranteed Delivery.* | |
| (a)(1)(D) |
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(E) |
Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(F) |
Summary Advertisement dated July 3, 2014.* | |
| (a)(5)(A) |
Press Release issued by Oracle Corporation on June 23, 2014 (incorporated by reference to the Schedule TO filed by Oracle Corporation on June 23, 2014).* | |
| (a)(5)(B) |
General Presentation issued by Oracle Corporation on June 23, 2014 (incorporated by reference to the Schedule TO filed by Oracle Corporation on June 23, 2014).* | |
| (a)(5)(C) |
FAQ issued by Oracle Corporation on June 23, 2014 (incorporated by reference to the Schedule TO filed by Oracle Corporation on June 23, 2014).* | |
| (a)(5)(D) |
Customer and Partner Letter issued by Oracle Corporation on June 23, 2014 (incorporated by reference to the Schedule TO filed by Oracle Corporation on June 23, 2014).* | |
| (a)(5)(E) |
Website materials published by Oracle Corporation on June 23, 2014 (incorporated by reference to the Schedule TO filed by Oracle Corporation on June 23, 2014).* | |
| (a)(5)(F) |
Amended complaint captioned Shiva Y. Stein, Individually and on Behalf of Herself and All Others Similarly Situated v. MICROS Systems, Inc., et al., filed on June 27, 2014 and amended on July 9, 2014, in the Circuit Court for Howard County, Maryland.* | |
| (a)(5)(G) |
Amended complaint captioned Tiffani Boudreaux, Individually on Behalf of Herself and All Others Similarly Situated v. MICROS Systems, Inc. et al., filed on June 26, 2014 and amended on July 9, 2014, in the Circuit Court for Howard County, Maryland.* | |
| (a)(5)(H) |
Amended complaint captioned Joel Rosenfeld IRA, Individually on Behalf of Itself and All Others Similarly Situated v. MICROS Systems, et al., filed on July 2, 2014 and amended on July 9, 2014, in the Circuit Court for Howard County, Maryland.* | |
| (a)(5)(I) |
Complaint captioned Newspaper and Magazine Employees Union and Phila. Publishers’ Pension Fund, v. MICROS Systems, Inc., et al., filed July 10, 2014, in the Circuit Court for Howard County, Maryland.* | |
| (a)(5)(J) |
Complaint captioned Scott v. MICROS Systems, Inc., et al., filed July 10, 2014, in the Circuit Court for Howard County, Maryland.* | |
| (a)(5)(K) |
Press Release issued by Oracle on July 29, 2014, announcing the extension of the Offer. | |
| (a)(7) |
Notice of Merger of Rocket Acquisition Corporation with and into MICROS Systems, Inc.* | |
| (b) |
Not applicable. | |
| (d)(1) |
Agreement and Plan of Merger, dated as of June 22, 2014, among MICROS Systems, Inc., OC Acquisition LLC, Rocket Acquisition Corporation and (solely with respect to performance of its obligations set forth in certain specified sections thereof) Oracle Corporation (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K/A filed by MICROS Systems, Inc. with the SEC on July 3, 2014). | |
| (d)(2) |
Form of Tender and Support Agreement (incorporated by reference to Exhibit A to Exhibit 2.1 to the Current Report on Form 8-K/A filed by MICROS Systems, Inc. with the SEC on July 3, 2014). | |
| (d)(3) |
Confidential Disclosure Agreement, effective as of April 12, 2014, between Oracle Corporation and MICROS Systems, Inc. (incorporated by reference to Exhibit (e)(2) to the Schedule 14D-9 filed by MICROS Systems, Inc. on July 3, 2014). | |
| (d)(4) |
Exclusivity Agreement, dated as of June 6, 2014, between MICROS Systems, Inc. and Oracle Corporation (incorporated by reference to Exhibit (e)(3) to the Schedule 14D-9 filed by MICROS Systems, Inc. on July 3, 2014). | |
| (e) |
Not applicable. | |
| (g) |
Not applicable. | |
| (h) |
Not applicable. | |
| * | Previously filed |