UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(RULE 14d-100)
Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1) of
the Securities Exchange Act of 1934
(Amendment No. 3)
JETPAY CORPORATION
(Name of Subject Company Issuer)
Orwell Acquisition Corporation
and
NCR Corporation
(Names of Filing Persons – Offeror)
Common Stock, $0.001 par value per share
Series A Convertible Preferred Stock, $0.001 par value per share
Series A-1 Convertible Preferred Stock, $0.001 par value per share
Series A-2 Convertible Preferred Stock, $0.001 par value per share
(Title of Class of Securities)
477177109
(CUSIP Number of Class of Securities)
James M. Bedore
General Counsel
NCR Corporation
864 Spring St NW
Atlanta, Georgia 30308
Telephone: (937) 445-1936
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Sean T. Peppard
Benesch, Friedlander, Coplan & Aronoff LLP
200 Public Square, Suite 2300
Cleveland, Ohio 44114
(216) 363-4688
CALCULATION OF FILING FEE
| Transaction Valuation (1) | Amount of Filing Fee (2) | |
|
$171,649,804 |
$20,804 |
| (1) | Estimated solely for purposes of calculating the filing fee. The transaction valuation (the “Transaction Valuation”) was calculated by adding the sum of: (i) 15,524,770 shares of common stock, par value $0.001 per share (the “Common Shares”), of JetPay Corporation (“JetPay”) outstanding, multiplied by the offer price of $5.05 per Common Share; (ii) 15,999,960 Common Shares subject to issuance upon the settlement of the conversion of the Series A Convertible Preferred Stock, par value $0.001 per share, into Common Shares, multiplied by the offer price of $5.05 per Common Share; (iii) 9,000 shares of Series A-1 Convertible Preferred Stock, par value $0.01 per share (the “Series A-1 Preferred Shares”), of JetPay outstanding, multiplied by the offer price of $600 per Series A-1 Preferred Share; (iv) 2,751,248 Common Shares subject to issuance upon the settlement of the outstanding stock options with an exercise price less than the offer price of $5.05 per Common Share, multiplied by $2.14, representing the difference between the offer price of $5.05 per share and the $2.91 weighted average exercise price for such stock options; (v) an estimated 33,000 Common Shares subject to issuance upon the settlement of the JetPay employee stock purchase plan, multiplied by the offer price of $5.05 per Common Share; and (vi) 516,667 Common Shares subject to issuance upon the settlement of the exercise of outstanding warrants of JetPay, multiplied by $1.94, representing the difference between the offer price of $5.05 per share and the $3.11 weighted average exercise price for such warrants. The calculation of the filing fee is based on information provided by JetPay as of October 18, 2018. |
| (2) | The amount of the filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for Fiscal Year 2019, issued August 24, 2018, equals $121.20 per million of the Transaction Valuation. |
☒ Check the 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: $20,804 Filing Party: NCR Corporation and Orwell Acquisition Corporation
Form of Registration No.: Schedule TO and Amendment No. 1 Date Filed: November 2, 2018 and November 13, 2018
☐ 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. 3 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO (together with any subsequent amendments and supplements thereto, the “Schedule TO”) filed by NCR Corporation, a Maryland corporation (“NCR”), and Orwell Acquisition Corporation, a Delaware corporation (“Merger Sub”) and a wholly-owned subsidiary of NCR, with the Securities and Exchange Commission on November 2, 2018. This Schedule TO relates to the offer by Merger Sub to purchase (pursuant to that certain Agreement and Plan of Merger, dated as of October 19, 2018, by and among NCR, Merger Sub and JetPay Corporation, a Delaware corporation (“JetPay”)): (i) all outstanding shares of common stock, $0.001 par value per share (“Common Shares”), of JetPay at a price per share of $5.05 (such amount, or any other amount per share paid pursuant to the Offer (defined below), the “Common Share Offer Price”), net to the seller in cash, without interest, on the terms and subject to the conditions set forth in the Merger Agreement (the “Common Share Offer”); (ii) any and all of the shares of Series A Convertible Preferred Stock issued and outstanding (each, a “Series A Preferred Share”) at a price per Series A Preferred Share equal to the greater of (A) the Series A Liquidation Value of such Series A Preferred Share and (B) the amount of proceeds that the holder of such Series A Preferred Share would receive if such Series A Preferred Share was converted into Common Shares pursuant to the Series A Certificate of Designation and such holder received the Common Share Offer Price for each Common Share issued upon such conversion (the greater of the foregoing clauses (A) and (B), or any other amount per Series A Preferred Share paid pursuant to the Offer in accordance with the Merger Agreement, the “Series A Offer Price”), net to the seller in cash, without interest, on the terms and subject to the conditions set forth in the Merger Agreement (the “Series A Offer”); (iii) any and all Series A-1 Preferred Shares issued and outstanding at a price per Series A-1 Preferred Share equal to the greater of (A) the Series A-1 Liquidation Value of such Series A-1 Preferred Share and (B) the amount of proceeds that the holder of such Series A-1 Preferred Share would receive if such Series A-1 Preferred Share was converted into Common Shares pursuant to the Series A-1 Certificate of Designation and such holder received the Common Share Offer Price for each Common Share issued upon such conversion (the greater of the foregoing clauses (A) and (B), or any other amount per Series A-1 Preferred Share paid pursuant to the Offer in accordance with the Merger Agreement, the “Series A-1 Offer Price”), net to the seller in cash, without interest, on the terms and subject to the conditions set forth in the Merger Agreement (the “Series A-1 Offer”); and (iv) any and all shares of Series A-2 Convertible Preferred Stock issued and outstanding (each, a “Series A-2 Preferred Share” and, together with the Series A Preferred Shares and the Series A-1 Preferred Shares, the “Preferred Shares” and, together with the Common Shares, the “Shares”) at a price per Series A-2 Preferred Share equal to the greater of (A) the Series A-2 Liquidation Value of such Series A-2 Preferred Share and (B) the amount of proceeds that the holder of such Series A-2 Preferred Share would receive if such Series A-2 Preferred Share was converted into Common Shares pursuant to the Series A-2 Certificate of Designation and such holder received the Common Share Offer Price for each Common Share issued upon such conversion (the greater of the foregoing clauses (A) and (B), or any other amount per Series A-2 Preferred Share paid pursuant to the Offer in accordance with the Merger Agreement, the “Series A-2 Offer Price” and, together with the Common Share Offer Price, the Series A Offer Price and the Series A-1 Offer Price, the “Offer Prices”), net to the seller in cash, without interest, on the terms and subject to the conditions set forth in the Merger Agreement (the “Series A-2 Offer” and, together with Common Share Offer, the Series A Offer and the Series A-1 Offer, the “Offer”), in each case, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated November 2, 2018 (the “Offer to Purchase”), and in the related Letter of Transmittal, copies of which are attached hereto as Exhibits (a)(1)(A) and (a)(1)(B), respectively. This Schedule TO is being filed on behalf of NCR and Merger Sub. Unless otherwise indicated, references to sections in this Schedule TO are references to sections of the Offer to Purchase.
All the information set forth in the Offer to Purchase is incorporated by reference herein in response to Items 1 through 9 and Item 11 in the Schedule TO, and is supplemented by the information specifically provided in this Amendment. Capitalized terms used but not defined in this Amendment shall have the meanings assigned to such terms in the Schedule TO.
This Amendment is being filed to amend and supplement Items 1 through 9 and Item 11, as reflected below.
Items 1 through 9; Item 11.
Items 1 through 9 and Item 11 of the Schedule TO are hereby amended and supplemented by adding the following:
“The Offer expired as scheduled at 11:59 p.m. (Philadelphia, Pennsylvania time) on December 4, 2018. The Depositary has indicated that a total of 13,996,813 Common Shares, 133,333 Series A Preferred Shares and 9,000 Series A-1 Preferred Shares were validly tendered (not including 1,212,577 Common Shares delivered pursuant to guaranteed delivery procedures) and
not properly withdrawn pursuant to the Offer as of the Offer Expiration Time, representing approximately 94% of the issued and outstanding Shares on a fully diluted basis. The number of Shares tendered satisfied the Minimum Tender Condition. All other conditions of the Offer having been satisfied, Merger Sub has accepted for payment and will promptly pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer.
On December 6, 2018, NCR completed its acquisition of JetPay pursuant to the terms of the Merger Agreement. On such date, Merger Sub merged with and into JetPay, without a vote of the stockholders of JetPay in accordance with Section 251(h) of the DGCL, with JetPay continuing as the surviving corporation and a wholly-owned subsidiary of NCR. As of the effective time of the Merger, by virtue of the Merger, each issued and outstanding Share (other than Shares owned by NCR or JetPay or by any direct or indirect wholly-owned subsidiary of JetPay and in each case not held on behalf of third parties, or the Shares that are held by stockholders, if any, who are entitled to and who properly exercise appraisal rights under Delaware law) was converted into the right to receive cash in an amount equal to the applicable Offer Price, without interest thereon. As a result of the Merger, JetPay will cease to be a publicly traded company on the Nasdaq Capital Market and NCR intends to take steps to cause the termination of the registration of JetPay’s common stock under the Exchange Act and to suspend all of JetPay’s reporting obligations under the Exchange Act as promptly as practicable.
A copy of the press release issued by NCR on December 6, 2018, announcing the expiration of the Offer and the consummation of the Merger is attached hereto as Exhibit (a)(5)(G) and is incorporated herein by reference.”
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented as follows:
Exhibit No.
| (a)(1)(A) | Offer to Purchase dated November 2, 2018.* |
| (a)(1)(B) | Form of Letter of Transmittal.* |
| (a)(1)(C) | Form of Notice of Guaranteed Delivery.* |
| (a)(1)(D) | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* |
| (a)(1)(E) | Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* |
| (a)(1)(F) | Form of Summary Advertisement as published on November 2, 2018 in the New York Times.* |
| (a)(2) | Not applicable. |
| (a)(3) | Not applicable. |
| (a)(4) | Not applicable. |
| (a)(5)(A) | Joint Press Release issued by NCR and JetPay on October 22, 2018, incorporated herein by reference to Exhibit 99.1 to the Form 8-K filed by NCR on October 22, 2018.* |
| (a)(5)(B) | Transcript of Michael Hayford video e-mailed to JetPay employees on October 22, 2018, incorporated herein by reference to Exhibit 99.1 to the Schedule TO-C filed by NCR on October 22, 2018.* |
| (a)(5)(C) | Email to JetPay employees dated October 22, 2018, incorporated herein by reference to Exhibit 99.2 to the Schedule TO-C filed by NCR on October 22, 2018.* |
| (a)(5)(D) | Excerpt from Transcript of NCR Corporation’s Third Quarter 2018 Earnings Call on October 30, 2018, incorporated herein by reference to Exhibit 99.1 to Schedule TO-C filed by NCR on October 31, 2018.* |
| (a)(5)(E) | Complaint for Violation of the Securities Exchange Act of 1934, dated November 12, 2018 (Alvin Mittelstaed v. JetPay Corporation, et al., Case No. 1:18-cv-01780-LPS (D. Del.)).* |
| (a)(5)(F) | Complaint for Violation of the Securities Exchange Act of 1934, dated November 13, 2018 (Anthony Franchi v. JetPay Corporation, et al., Case No. 1:18-cv-01791-LPS (D. Del.)).* |
| (a)(5)(G) | Press release issued by NCR Corporation, dated December 6, 2018.** |
| (b) | Not applicable. |
| (c) | Not applicable. |
| (d)(1) | Agreement and Plan of Merger, dated as of October 19, 2018, by and among NCR Corporation, Orwell Acquisition Corporation and JetPay Corporation, incorporated herein by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by NCR on October 22, 2018.* |
| (d)(2) | Form of Tender and Support Agreement (Common Shares) by and among NCR Corporation, Orwell Acquisition Corporation and the stockholders party thereto, dated October 19, 2018, incorporated herein by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by NCR on October 22, 2018.* |
| (d)(3) | Form of Tender and Support Agreement (Series A Preferred Shares) by and among NCR Corporation, Orwell Acquisition Corporation, the stockholders party thereto and JetPay. Corporation, dated October 19, 2018, incorporated herein by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by NCR on October 22, 2018.* |
| (d)(4) | Confidentiality Agreement, dated August 4, 2018, by and between NCR Corporation and JetPay Corporation.* |
| (g) | Not applicable. |
| (h) | Not applicable. |
| * | Previously filed |
| ** | Filed herewith |
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.
Dated: December 6, 2018
| NCR CORPORATION | ||
| By: |
/s/ Andre Fernandez | |
| Name: |
Andre Fernandez | |
| Title: |
Executive Vice President and Chief Financial Officer | |
| ORWELL ACQUISITION CORPORATION | ||
| By: |
/s/ Edward Gallagher | |
| Name: |
Edward Gallagher | |
| Title: |
President | |
Exhibit (a)(5)(G)
NCR Successfully Completes Acquisition of JetPay Corporation
Atlanta, GA – December 6, 2018 – NCR Corporation (NYSE: NCR) announced today the successful completion of its acquisition of JetPay Corporation (NASDAQ: JTPY) through a tender offer made by NCR’s wholly-owned acquisition subsidiary, Orwell Acquisition Corporation, for all of the outstanding shares of JetPay.
NCR’s tender offer for all of the outstanding shares of JetPay at a purchase price of $5.05 per share of common stock, $5.05 per share of common stock underlying each Series A Convertible Preferred Stock, $600 per share of Series A-1 Convertible Preferred Stock and $600 per share of Series A-2 Convertible Preferred Stock, without interest and less any required tax withholding (the “Offer”), expired as scheduled at 11:59 p.m. Philadelphia, PA time, on December 4, 2018.
The depositary has advised that, as of the expiration of the tender offer, a total of 13,996,813 shares of JetPay common stock, 133,333 shares of Series A Convertible Preferred Stock and 9,000 shares of Series A-1 Convertible Preferred Stock were validly tendered and not withdrawn prior to the expiration of the Offer (not including 1,212,577 shares of common stock delivered pursuant to the guaranteed delivery procedures). Approximately 94% of all outstanding shares of JetPay stock on a fully diluted basis have been tendered (the percentage is 98% if guaranteed delivery shares are taken into account) as of the expiration of the Offer.
All of the conditions to the Offer have been satisfied and on December 6, 2018, NCR and its wholly-owned subsidiary, Orwell Acquisition Corporation, accepted for payment, and will promptly pay for, all shares validly tendered and not properly withdrawn in the Offer.
Following completion of the Offer, NCR completed the acquisition of JetPay through the merger of Orwell Acquisition Corporation with and into JetPay, without a vote of JetPay’s stockholders pursuant to Section 251(h) of the General Corporation Law of the State of Delaware, with JetPay surviving the merger as a wholly-owned subsidiary of NCR. In connection with the merger, each share of JetPay not validly tendered in the Offer (other than shares held by any stockholder entitled to and properly demanding statutory appraisal of its shares) has been converted into the right to receive the same $5.05 per share of common stock, $5.05 per share of common stock underlying each Series A Convertible Preferred Stock, $600 per share of Series A-1 Convertible Preferred Stock and $600 per share of Series A-2 Convertible Preferred Stock, in cash, without interest and less applicable tax withholding, as will be paid for all shares that were validly tendered and not properly withdrawn in the Offer. JetPay’s common stock will be delisted from the Nasdaq Capital Market.
Financial Technology Partners LP and FTP Securities LLC acted as the financial and strategic advisor to the Special Committee of the Board of Directors of JetPay and Dechert LLP acted as legal counsel.
BofA Merrill Lynch acted as the financial and strategic advisor to the Board of Directors of NCR Corporation in connection with the transaction and Benesch, Friedlander, Coplan & Aronoff LLP served as legal counsel.
About NCR Corporation
NCR Corporation (NYSE: NCR) is a leader in banking and commerce solutions, powering incredible experiences that make life easier. NCR is headquartered in Atlanta, Ga., with 34,000 employees and does business in 180 countries. NCR is a trademark of NCR Corporation in the United States and other countries.
Web site: www.ncr.com
Twitter: @NCRCorporation
Facebook: www.facebook.com/ncrcorp
LinkedIn: www.linkedin.com/company/ncr-corporation
YouTube: www.youtube.com/user/ncrcorporation
Source: NCR Corporation
News Media Contact:
Tim Henschel
NCR Corporation
770-299-5100
Tim.Henschel@NCR.com
or
Investor Contact:
Michael Nelson
NCR Corporation
678-808-6995
michael.nelson@ncr.com