SC 14D9/A 1 d310609dsc14d9a.htm SC 14D9/A SC 14D9/A

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 14D-9

(Rule 14d-101)

Solicitation/Recommendation Statement

Under Section 14(d)(4) of the Securities Exchange Act of 1934

Amendment No. 4

 

 

Cerner Corporation

(Name of Subject Company)

 

 

Cerner Corporation

(Name of Person(s) Filing Statement)

 

 

Common Stock, par value $0.01 per share

(Title of Class of Securities)

156782104

(CUSIP Number of Class of Securities)

Daniel P. Devers

Executive Vice President and Chief Legal Officer

Cerner Corporation

2800 Rock Creek Parkway

North Kansas City, Missouri 64117

(816) 221-1024

(Name, address and telephone number of person authorized to receive notice and communications on behalf of the persons filing statement)

With copies to:

James P. Beaubien

Mark D. Gerstein

Christopher R. Drewry

Brent T. Epstein

Latham & Watkins LLP

330 North Wabash Avenue, Suite 2800

Chicago, Illinois 60611

(312) 876-7700

 

 

 

☐

Check the box below if the filing relates solely to preliminary communications made before the commencement of a tender offer.

 

 

 

EXPLANATORY NOTE

This Amendment No. 4 (this “Amendment”) amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 filed with the U.S. Securities and Exchange Commission (the “SEC”) on January 19, 2022 (together with the exhibits thereto and as amended or supplemented from time to time, the “Schedule 14D-9”) by Cerner Corporation, a Delaware corporation (“Cerner”). The Schedule 14D-9 relates to the cash tender offer (the “Offer”) by Cedar Acquisition Corporation, a Delaware corporation (“Purchaser”), a wholly owned subsidiary of OC Acquisition LLC, a Delaware limited liability company (“Parent”), a wholly owned subsidiary of Oracle Corporation, a Delaware corporation (“Oracle”), to purchase all of the issued and outstanding shares of Cerner’s common stock, par value $0.01 per share (the “Shares”). The tender offer is disclosed in the Tender Offer Statement on Schedule TO (together with the exhibits thereto, as it may be amended or supplemented from time to time, the “Schedule TO”) filed by Oracle, Parent and Purchaser with the SEC on January 19, 2022, and is made upon the terms and subject to the conditions set forth in the Offer to Purchase, dated January 19, 2022 (as it may be amended or supplemented from time to time, the “Offer to Purchase”), and in the related Letter of Transmittal (as it may be amended or supplemented from time to time, the “Letter of Transmittal”), which were filed as Exhibits (a)(1)(A) and (a)(1)(B) to the Schedule 14D-9, respectively.

Capitalized terms used but not otherwise defined in this Amendment have the meanings given to them in the Schedule 14D-9. The information in the Schedule 14D-9 is incorporated into this Amendment by reference to all applicable items in the Schedule 14D-9, except that such information is hereby amended and supplemented to the extent specifically provided herein.

Item 3.

Past Contacts, Transactions, Negotiations and Agreements

Item 3 of the Schedule 14D-9 is hereby amended by supplementing such Item with the following:

“On March 4, 2022, Cerner granted the number of Cerner RSUs and Cerner PSUs set forth in the table below to its executive officers, including its named executive officers (other than Brent Shafer). The number of Cerner PSUs is shown based on achieving “target” performance goals.

 

Executive Officer    Cerner RSUs
(#)		      Cerner PSUs
(#)		  

Travis Dalton

      16,851        16,851  

Daniel P. Devers

      10,164        10,164  

Marc J. Erceg

      25,677        25,677  

David T. Feinberg

      72,216        72,216  

Jerome Labat

      23,003        23,003  

Tracy L. Platt

      13,909        13,909  

Nasim Afsarmanesh

      8,024        8,024  

Notwithstanding anything to the contrary contained in the executives’ employment or severance agreements, the Cerner RSUs and Cerner PSUs granted to the executives in 2022 will not vest in full upon a qualifying termination of employment in connection with a change in control, but instead will accelerate and vest on a pro-rata basis if the termination occurs within 12 months following the grant date (and after deeming any performance metrics achieved as previously described).

Copies of the forms of agreements evidencing the Cerner RSUs and Cerner PSUs granted in 2022 are filed as Exhibits (e)(24) and (e)(25) to this Schedule 14D-9, respectively, and are incorporated by reference herein.”

Item 6.

Interest in Securities of the Subject Company

Item 6 of the Schedule 14D-9 is hereby amended and supplemented by adding the following to the bottom of the table set forth in Item 6 on page 47 of the Schedule 14D-9 to read as follows:

 

Name

    Date of
Transaction		      Number
of Shares		      Price per
Share ($)		    

Nature of Transaction

Nasim Afsarmanesh

      03/04/2022        8,024        0.00     Grant of Cerner RSUs

Daniel P. Devers

      03/04/2022        10,164        0.00     Grant of Cerner RSUs

Daniel P. Devers

      03/04/2022        51,174        93.29 (1)    Disposition of Cerner Shares

Daniel P. Devers

      03/04/2022        15,000        67.24     Exercise of Non-Qualified Stock Options

Daniel P. Devers

      03/04/2022        20,000        65.27     Exercise of Non-Qualified Stock Options

Daniel P. Devers

      03/04/2022        9,733        57.24     Exercise of Non-Qualified Stock Options

Daniel P. Devers

      03/04/2022        6,441        65.88     Exercise of Non-Qualified Stock Options

Michael R. Battaglioli

      03/04/2022        1,846        0.00     Grant of Cerner RSUs

Travis S. Dalton

      03/04/2022        16,851        0.00     Grant of Cerner RSUs

Mark J. Erceg

      03/04/2022        25,677        0.00     Grant of Cerner RSUs

David T. Feinberg

      03/04/2022        72,216        0.00     Grant of Cerner RSUs

Jerome Labat

      03/04/2022        23,003        0.00     Grant of Cerner RSUs

Tracy L. Platt

      03/04/2022        13,909        0.00     Grant of Cerner RSUs

Tracy L. Platt

      03/11/2022        7,769        93.40 (2)    Disposition of Cerner Shares

 

 

(1)

The price per Share is a weighted average price. The Shares were sold in separate transactions on the same day at prices ranging from $93.26 to $93.33 per Share.

(2)

The price per Share is a weighted average price. The Shares were sold in separate transactions on the same day at prices ranging from $93.40 to $93.42 per Share.

 

Item 8.

Additional Information

Item 8 of the Schedule 14D-9 is hereby amended and supplemented as follows:

Adding a new section immediately prior to the section captioned “Forward-Looking Statements” as set forth below:

“Extension of the Offer

On March 15, 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 March 16, 2022. The expiration date of the Offer has been extended until 12:00 midnight, Eastern Time, at the end of the day on April 13, 2022, unless further extended. The depositary for the Offer has indicated that as of 12:00 midnight, Eastern Time, at the end of the day on March 14, 2022, approximately 29,587,409 Shares had been validly tendered into and not validly withdrawn from the Offer, representing approximately 10.1% of the outstanding Shares.”

Adding a new sentence as the last sentence of the section captioned “Other Regulatory Approvals-Australia” as set forth below:

“On March 10, 2022, Oracle filed an application with the FIRB.”

Adding a new sentence as the last sentence of the section captioned “Other Regulatory Approvals-Austria” as set forth below:

“On March 4, 2022, Oracle filed an application with the Austrian Ministry.”

Adding a new sentence as the last sentence of the section captioned “Other Regulatory Approvals-France” as set forth below:

“On March 9, 2022, Oracle filed an application with the French Ministry.

Adding a new sentence as the last sentence of the section captioned “Other Regulatory Approvals-Germany” as set forth below:

“On March 3, 2022, Oracle filed an application with the BMWi.”

Adding a new sentence as the last sentence of the section captioned “Other Regulatory Approvals-Romania” as set forth below:

“On March 4, 2022, Oracle filed an application with CSAT.”

Adding a new sentence as the last sentence of the section captioned “Other Regulatory Approvals-Spain” as set forth below:

“On March 14, 2022, Oracle filed an application with the Spanish Ministry.”

 

Item 9.

Exhibits

The following Exhibits are attached hereto:

 

(a)(5)(T)

    Press Release issued by Oracle Corporation on March 15, 2022, announcing the extension of the Offer (incorporated by reference to Exhibit (a)(5)(M) to Schedule TO Amendment No. 4).

(e)(24)

    Cerner Corporation 2011 Omnibus Equity Incentive Plan – Time-Based Restricted Stock Unit Agreement.

(e)(25)

    Cerner Corporation 2011 Omnibus Equity Incentive Plan – Performance-Based Restricted Stock Unit Agreement.

SIGNATURE

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct.

 

CERNER CORPORATION
By:  

/s/ Daniel P. Devers

  Name:   Daniel P. Devers
  Title:   Executive Vice President and Chief Legal Officer
  Date:   March 15, 2022