Amended Tender Offer Statement by Third Party (sc To-t/a)
September 20 2022 - 4:23PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(RULE 14D-100)
(Amendment No. 3)
Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934.
Romeo Power,
Inc.
(Name of Subject Company)
J Purchaser Corp.
(Offeror)
Nikola
Corporation
(Parent of Offeror)
(Names of Filing Persons)
Common Stock par value, $0.0001 per share
(Title of Class of Securities)
776153108
(CUSIP Number
of Class of Securities)
Britton M. Worthen, Esq.
Chief Legal Officer
Nikola Corporation
4141
E Broadway Road
Phoenix, AZ 85040
(480) 666-1038
(Name, address and telephone number of person authorized to receive notices and communications on behalf of filing persons)
with copies to:
Stanley F. Pierson
Gabriella A. Lombardi
Pillsbury Winthrop Shaw Pittman LLP
2550 Hanover Street
Palo
Alto, CA 94304
Tel: (650) 233-4500
Fax: (650) 233-4545
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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:
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third-party tender offer subject to Rule 14d-1. |
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issuer tender offer subject to Rule 13e-4. |
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going-private transaction subject to Rule 13e-3. |
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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:
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
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Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
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This Amendment No. 3 (this Amendment) amends and supplements the Tender Offer Statement on
Schedule TO initially filed with the U.S. Securities and Exchange Commission on August 29, 2022, as amended on August 30, 2022 and September 13, 2022 (together with any amendments and supplements thereto, the Schedule TO)
by Nikola Corporation, a Delaware corporation (Nikola), and J Purchaser Corp., a Delaware corporation and a wholly owned subsidiary of Nikola (the Offeror) relating to the offer by Offeror to exchange each outstanding share
of common stock of Romeo Power, Inc., a Delaware corporation (Romeo), par value $0.0001 per share (Romeo Common Stock) for 0.1186 of a share of common stock, $0.0001 par value per share, of Nikola (Nikola Common
Stock). Nikola has filed with the SEC a Registration Statement on Form S-4 dated August 29, 2022, relating to the offer and sale of shares of Nikola Common Stock to be issued to holders of
shares of Romeo common stock validly tendered and not validly withdrawn in the Offer (the Registration Statement). The terms and conditions of the Offer are set forth in the prospectus/offer to exchange, which is a part of the
Registration Statement, and the Letter of Transmittal, which are filed as Exhibits (a)(4) and (a)(1)(A), respectively, to the Schedule TO. Pursuant to General Instruction F to Schedule TO, the information contained in the prospectus/offer to
exchange and the Letter of Transmittal, including any prospectus supplement or other supplement thereto related to the Offer hereafter filed with the SEC by Nikola or the Offeror, is hereby expressly incorporated into the Schedule TO by reference in
response to Items 1 through 11 of the Schedule TO and is supplemented by the information specifically provided for in this Schedule TO. Capitalized terms used, but not otherwise defined, in this Amendment shall have the meanings ascribed to them in
the prospectus/offer to exchange. This Amendment is being filed to amend and supplement the Schedule TO to the extent specifically provided for herein. The Agreement and Plan of Merger and Reorganization, dated as of July 30, 2022, by and among
Nikola, the Offeror and Romeo, a copy of which is attached as Exhibit (d)(1) to the Schedule TO, is incorporated into the Schedule TO by reference.
All
information regarding the Offer as set forth in the Schedule TO, including all exhibits and annexes thereto that were previously filed with the Schedule TO, is hereby expressly incorporated by reference into this Amendment, except that such
information is hereby amended and supplemented to the extent specifically provided for herein and to the extent amended and supplemented by the exhibits filed herewith.
Item 11. Additional Information.
Item 11 of the Schedule TO is hereby amended and supplemented by replacing the first paragraph of the subsection entitled Certain Legal
Matters in its entirety to read as follows:
Certain Legal Matters
To date, there have been six complaints filed by purported stockholders of Romeo related to the Offer. On September 1, 2022, a purported stockholder of
Romeo filed a lawsuit against Romeo and members of its Board of Directors in the United States District Court for the Central District of California, captioned Rushing v. Romeo Power, Inc., No. 8:22-cv-01641. On September 2, 2022, a stockholder of Romeo filed a lawsuit in the United States District Court for the Central District of California, captioned Cataldi v. Romeo Power, Inc., et
al., No. 8:22-cv-01642. On September 8, 2022, a purported stockholder of Romeo filed a lawsuit in the United States District Court for the Southern District of
New York, captioned Wilhelm v. Romeo Power, Inc., No. 1:22-cv-07662. On September 8, 2022, a purported stockholder of Romeo filed a lawsuit in the United
States District Court for the District of Delaware, captioned Wheeler v. Romeo Power, Inc., No. 1:22-cv-01182. On September 9, 2022, a purported stockholder
of Romeo filed a lawsuit, in the United States District Court for the Southern District of New York, captioned Ryan v. Romeo Power, Inc., et al., No.
1:22-cv-07734. On September 13, 2022, a purported stockholder of Romeo filed a lawsuit in the United States District Court for the Central District of California,
captioned Grinberger v. Romeo Power, Inc., et al., No. 8:22-cv-01678.
Item 12. Exhibits.
Item 12 of
the Schedule TO is hereby amended and supplemented by adding the following exhibits:
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(a)(5)(G)* |
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Press Release issued by Nikola Corporation on September 20, 2022 |
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107* |
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Filing Fee Table |
SIGNATURES
After due inquiry and to the best of their knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: September 20, 2022
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J PURCHASER CORP. |
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By: |
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/s/ Kim J. Brady |
Name: |
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Kim J. Brady |
Title: |
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Chief Financial Officer |
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NIKOLA CORPORATION |
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By: |
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/s/ Kim J. Brady |
Name: |
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Kim J. Brady |
Title: |
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Chief Financial Officer |
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