Item 8.01 Other Events.
On June 1, 2021, Cloudera, Inc., a Delaware corporation (“Cloudera”), Sky Parent Inc., a Delaware corporation (“Parent”) and Project Sky Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), entered into an Agreement and Plan of Merger (the “Merger Agreement”). Pursuant to the Merger Agreement, and subject to the satisfaction or waiver of the conditions specified therein, Merger Sub shall merge with and into Cloudera and the separate corporate existence of Merger Sub will cease, with Cloudera continuing as the surviving corporation and a wholly owned subsidiary of Parent (the “Merger”).
Between July 9, 2021, and August 11, 2021, twelve purported stockholders of Cloudera commenced actions, captioned Wang v. Cloudera, Inc., et al., Case No. 1:21-cv-05924 (S.D.N.Y.), Whitfield v. Cloudera, Inc., et al., Case No. 1:21-cv-06041 (S.D.N.Y.), Muniz v. Cloudera, Inc., et al., Case No. 1:21-cv-06026 (S.D.N.Y.), Bercovici v. Cloudera, Inc., et al., Case No. 3:21-cv-05457 (N.D. Cal.), Raffo v. Cloudera, Inc., et al., Case No. 1:21-cv-06126 (S.D.N.Y.), Kortis v. Cloudera, Inc., et al., Case No. 1:21-cv-04064 (E.D.N.Y.), Morgan v. Cloudera, Inc., et al., Case No. 1:21-cv-01137 (D. Del.), Palkon v. Cloudera, Inc., et al., Case No. 5:21-cv-06040 (N.D. Cal.), Justice v. Cloudera, Inc. et al., Case No. 2:21-cv-03498 (E.D. Pa.), Christopher v. Cloudera, Inc. et al., Case No. 1:21-cv-06661 (S.D.N.Y.), Shumacher v. Cloudera, Inc., et al., Case No. 1:21-cv-06708 (S.D.N.Y.), and Jones v. Cloudera, Inc., et al., Case No. 5:21-cv-06177 (N.D. Cal.), in the United States District Courts for the Southern District of New York, Eastern District of New York, Northern District of California, District of Delaware, and Eastern District of Pennsylvania. The complaints name Cloudera and the members of the Cloudera board of directors (the “Board”) as defendants. The complaints assert claims under Section 14(a) and Section 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) challenging the adequacy of the disclosures relating to the proposed acquisition of Cloudera by affiliates of Clayton, Dubilier & Rice, LLC (“CD&R”) and Kohlberg Kravis Roberts & Co. (“KKR”) made in the preliminary proxy statement and definitive proxy statement (the “Proxy Statement”) filed with the United States Securities and Exchange Commission (the “SEC”) on July 7, 2021, and July 19, 2021, respectively. The complaints seek, among other relief, an injunction preventing the parties from consummating the proposed transaction, damages in the event the transaction is consummated, and an award of attorneys’ fees. Cloudera believes the claims asserted in the lawsuits are without merit. Further, on July 30, 2021, and August 13, 2021, Cloudera received two written demands to inspect books and records from two Cloudera stockholders pursuant to 8 Del. C. § 220.
Cloudera believes that no further disclosure is required to supplement the Proxy Statement under applicable laws. However, to minimize the expense and distraction of responding to such actions, Cloudera is providing additional disclosures related to the Merger and transactions related thereto, which are set forth below, supplementing the disclosures in the Proxy Statement. Nothing in these supplemental disclosures shall be deemed an admission of the legal necessity or materiality of any of the disclosures set forth herein.
These supplemental disclosures do not affect the merger consideration to be paid to Cloudera’s stockholders in connection with the Merger or the timing of Cloudera’s virtual special meeting of stockholders scheduled to be held online via live webcast on August 25, 2021 at 7:00 am, Pacific Daylight Time, at www.virtualshareholdermeeting.com/CLDR2021SM (the “Special Meeting”). The Board continues to recommend that you vote “FOR” the proposal to adopt the Merger Agreement and “FOR” the other proposals being considered at the Special Meeting.
Supplemental Disclosures to the Proxy Statement
The following supplemental disclosures should be read in conjunction with the Proxy Statement, which should be read in its entirety. To the extent that information in the supplemental disclosures differs from or updates information contained in the Proxy Statement, the information in the supplemental disclosures shall supersede or supplement the information in the Proxy Statement. Defined terms used but not defined in the supplemental disclosures have the meanings set forth in the Proxy Statement. Paragraph and page references used herein refer to the Proxy Statement before any additions or deletions resulting from the supplemental disclosures. Unless stated otherwise, the revised text in the supplemental disclosures is underlined to highlight the supplemental information being disclosed.
The disclosure in the section entitled “Background of the Merger,” beginning on page 31 of the Proxy Statement, is hereby amended by replacing the second paragraph on page 32 with the following:
On November 15, 2019, the M&A Committee which at the time was comprised of Peter Fenton, Paul Cormier and Nicholas Graziano, held a meeting via videoconference, with representatives from Cloudera’s senior management, Cloudera’s outside legal counsel at Latham & Watkins LLP(“Latham”) and Morgan Stanley present, to discuss potential outreach to potentially interested bidders in connection with a possible sale of Cloudera. Following discussion of potential interested parties as well as the likelihood of potential interest based on Cloudera’s performance during the prior six months, the M&A Committee instructed representatives of Cloudera’s senior management, with assistance from Morgan Stanley, to begin limited outreach to certain counterparties to gauge potential interest in the possible sale of Cloudera. The M&A Committee chose to conduct a targeted approach in its outreach due to concerns related to confidentiality. Representatives of Cloudera’s senior management were reminded that all outreach to and discussions with potential counterparties must only be conducted with the approval of and at the direction of the M&A Committee. The price per share of Cloudera common stock on the New York Stock Exchange as of the close of trading on November 15, 2019 was $8.76 per share.
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