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. 2)
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. 2 (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.
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 supplementing the first paragraph in the “Question and Answer” entitled “Will a meeting of the Company’s stockholders be required to approve the Merger?” on page S-vi of the Offer to Purchase to add as the last sentence of such paragraph:
“Purchaser must acquire at least 67,335,627 Shares for Purchaser to acquire at least 90% of the outstanding Shares as of June 25, 2014 and consummate the Merger under the short-form merger provisions of Maryland Law, without the use of the top-up option.”
Amending and restating the last sentence of the first paragraph in Section 7 – “Certain Information Concerning the Company” on page 10 of the Offer to Purchase to read as follows:
“However, none of Oracle, Parent or Purchaser assumes any responsibility for the accuracy or completeness of the information concerning the Company contained in such filings, or for any failure by the Company to disclose events that may have occurred or that may affect the significance or accuracy of any such information but which are unknown to Oracle, Parent or Purchaser.”
Amending and supplementing the second paragraph in Section 12 – “Purpose of the Offer; Stockholder Approval; Plans for the Company – Stockholder Approval” on page 36 of the Offer to Purchase to add as the last sentence of such paragraph:
“Purchaser must acquire at least 67,335,627 Shares for Purchaser to acquire at least 90% of the outstanding Shares as of June 25, 2014 and consummate the Merger under the short-form merger provisions of Maryland Law, without the use of the top-up option.”
Amending and restating the first paragraph in Section 16 – “Certain Legal Matters; Regulatory Approvals – Legal Proceedings” beginning on page 43 of the Offer to Purchase to read as follows:
“Five class action complaints related to the Merger Agreement have been filed in the Circuit Court for Howard County, Maryland by purported stockholders of the Company. The actions are docketed as Boudreaux v. Micros Systems, Inc., et al., (“Boudreaux”) (filed June 26, 2013, amended July 9, 2014); Stein v. Micros Systems, Inc., et al. (“Stein”) (filed June 27, 2014, amended July 9, 2014); Rosenfeld IRA v. Micro Systems, Inc. et al. (“Rosenfeld”) (filed July 2, 2014, amended July 9, 2014); Newspaper and Magazine Employees Union and Phila. Publishers’ Pension Fund, v. Micros Systems, Inc., et al. (“Publishers”) (filed July 10, 2014); and Scott v. Micros Systems, Inc., et al., (“Scott”) (filed July 10, 2014). The Boudreaux, Stein and Scott actions are brought against the Company, Purchaser, Parent, Oracle, and the Company’s Board of Directors (the “Individual Defendants”), and purport to be brought individually and on behalf of all public stockholders of the Company. The Boudreaux, Stein and Scott actions allege that the Individual Defendants breached their fiduciary duties to the Company’s stockholders by, among other things, approving a merger that they claim provides for inadequate consideration for the
Company’s stockholders and that the Merger Agreement includes allegedly preclusive deal protection provisions; and that Purchaser, Parent, and Oracle aided and abetted such alleged breach of fiduciary duties. The Boudreaux, Stein and Scott actions also assert that the Individual Defendants breached their fiduciary duties by allegedly omitting certain material information concerning the sales process, financial valuation, and financial projections from the Schedule 14D-9 Recommendation Statement filed on July 3, 2014. Additionally, the Boudreaux, Stein and Scott actions each request a declaratory judgment against all defendants. Based on these allegations, the Boudreaux, Stein and Scott actions seek, among other relief, an order declaring the action to be a class action, that the Individual Defendants have breached their fiduciary duties owed to the stockholders, and that Purchaser, Parent, and Oracle aided and abetted such alleged breaches. Finally, the Boudreaux, Stein and Scott actions also seek to enjoin the Merger from being consummated, awarding plaintiff the costs including a reasonable allowance for the expenses of plaintiff’s attorneys and experts and granting further equitable relief as the court deems just and proper.
Although the claims asserted and relief requested in Rosenfeld are identical to the claims asserted and relief requested in Boudreaux, Stein and Scott, the Rosenfeld action is brought only against the Company and the Individual Defendants.
The Publishers action is also brought against the Company, Purchaser, Parent, Oracle, and the Individual Defendants, but also names the Company’s Chief Financial Officer as a Defendant. Similar to the other complaints filed, the Publishers action alleges that the Individual Defendants, including the Chief Financial Officer, breached their fiduciary duties to the Company’s stockholders by, among other things, approving a merger that plaintiff claims provides for inadequate consideration for the Company’s stockholders and that the Merger Agreement includes allegedly preclusive deal protection provisions; and that Purchaser, Parent, and Oracle aided and abetted such alleged breach of fiduciary duties. The Publishers action seeks, among other relief, an order declaring the action to be a class action, to enjoin the Merger from being consummated, damages, awarding plaintiff the costs including a reasonable allowance for the expenses of plaintiff’s attorneys and experts and granting further equitable relief as the court deems just and proper.
The Plaintiffs in Boudreaux, Stein and Rosenfeld have filed a motion to consolidate their actions in the Circuit Court for Howard County, Maryland. That motion is currently pending.”
Item 12.
Item 12 of the Schedule TO is hereby amended and supplemented as follows:
| Index No. |
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| (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. | |
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 15, 2014
| Rocket Acquisition Corporation | ||
| By: |
/s/ Dorian Daley | |
|
| ||
| Name: |
Dorian Daley | |
| Title: |
President | |
| OC Acquisition LLC | ||
| By: |
/s/ Dorian Daley | |
|
| ||
| 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)(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 |