UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(RULE 14D-100)
(Amendment No. 2)
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
| ☐ | 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:
| ☒ | 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 initially filed with the U.S. Securities and Exchange Commission on August 29, 2022, as amended on August 30, 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.
Items 1 through 11.
Items 1, 4(a) and 11 of the Schedule TO are hereby amended and supplemented by adding the following information:
At 11:59 p.m., New York City time, on September 9, 2022, the waiting period applicable to the Offer and the merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, expired.
Item 11. Additional Information.
Item 11 of the Schedule TO is hereby amended and supplemented by adding a new subsection entitled “Certain Legal Matters” as follows:
Certain Legal Matters
To date, there have been five complaints filed by purported stockholders of Romeo related to the Offer. On September 1, 2022, a purported stockholder of Romeo, Brian Rushing, filed a putative lawsuit against Romeo and the 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. 2.22-cv-06237. On September 2, 2022, another purported stockholder of Romeo, filed a lawsuit in the United States District Court for the Central District of California, captioned Cataldi v. Romeo Power, Inc., 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 fifth purported stockholder of Romeo filed a similar complaint, in the United States District Court for the Southern District of New York, captioned Ryan v. Romeo Power, Inc., No. 1:22-cv-07734.
The lawsuits allege that Romeo and its Board of Directors made materially incomplete and misleading statements in its Solicitation/Recommendation Statement on Schedule 14D-9 regarding the Offer. Specifically the lawsuits allege that Romeo and its Board of Directors violated Sections 14(d)(4), 14(e) and 20(a) of the Securities Exchange Act of 1934 (the “Act”), as amended, and Rule 14d-9 promulgated under the Act, and asserts claims challenging the adequacy of the disclosures regarding the sales process leading up to the proposed transaction, Romeo’s and Nikola’s financial projections, the interests of Romeo’s senior management and Board of Directors, and Morgan Stanley’s financial analysis.
The lawsuits seek, among other things, injunctive relief to enjoin the Offer, rescission and rescissory damages should the Offer be consummated, an injunction directing the Board of Directors to comply with the Act, and an award of attorney’s and expert fees and expenses. Nikola and Offeror are not named as parties to the lawsuits. Tender offers, mergers and acquisitions commonly draw lawsuits of this sort and it can be expected that other law firms may file further similar complaints in the following days or weeks.
The outcome of any pending or future litigation is uncertain. Such litigation, if not resolved, could prevent or delay consummation of the Offer and result in substantial costs to Romeo.
One of the conditions to the consummation of the Offer is that no temporary restraining order, preliminary or permanent injunction or other order preventing the consummation of the transactions contemplated by the Merger Agreement shall have been issued by any court of competent jurisdiction or other governmental body of competent jurisdiction and remain in effect, or there is any legal requirement which has the effect of making the consummation of the Merger illegal. Therefore, if these lawsuits or other similar lawsuits are successful in obtaining an injunction prohibiting the consummation of the Offer or Merger on the agreed-upon terms, that injunction might prevent the Offer from being consummated, or from being consummated within the expected time frame.
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits:
| 107* | Filing Fee Table | |
| * | Filed herewith | |
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 12, 2022
| J PURCHASER CORP. | ||
| By: | /s/ Mark A. Russell | |
| Name: | Mark A. Russell | |
| Title: | President and Chief Executive Officer | |
| NIKOLA CORPORATION | ||
| By: | /s/ Mark A. Russell | |
| Name: | Mark A. Russell | |
| Title: | Chief Executive Officer | |
