- Amended tender offer statement by Third Party (SC TO-T/A)
October 14 2008 - 4:29PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO/A
(RULE 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) or
13(e)(1) OF
THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 3)
Napster, Inc.
(Name of Subject Company (Issuer))
Puma Cat Acquisition Corp.
a wholly-owned subsidiary of
Best Buy Co., Inc.
(Names of Filing Persons (Offerors))
Common Stock, Par Value $0.001 per Share
(Title of Class of
Securities)
630797108
(CUSIP Number of Class of Securities)
Joseph M. Joyce
Best Buy Co., Inc.
7601 Penn Avenue South
Richfield, MN 55423
(612) 291-1000
(Name, address and telephone number of person authorized to
receive notices and communications on behalf of filing persons)
Copy To:
John R. Houston, Esq.
Robins, Kaplan, Miller &
Ciresi L.L.P.
2800 LaSalle Plaza, 800 LaSalle Avenue
Minneapolis, MN 55402
(612) 349-8500
CALCULATION OF FILING FEE
Transaction Valuation*
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Amount of Filing Fee
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$127,186,169.15
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$4,998.42
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*
Estimated
for purposes of calculating the amount of the filing fee only. The filing fee
calculation assumes the purchase of
47,922,611 outstanding shares of Issuer common stock, par value $0.001 per
share, at a price of $2.65 per share (including shares issued pursuant to
restricted stock awards) at an aggregate purchase price of
$126,994,919.15; and an aggregate of $191,250.00, representing the difference
between the $2.65 per share payable per share of common stock in the offer and
the exercise price of all in-the-money options that are vested or will vest on
or prior to the scheduled expiration date of the offer contemplated by this
Schedule TO. 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 #6 for Fiscal Year 2008 issued
by the Securities and Exchange Commission on December 27, 2007, equals
$39.30 per $1 million of the transaction value.
x
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: $4,998.42
Form or Registration No.: Schedule TO
Filing Party: Puma Cat Acquisition Corp. and Best Buy Co., Inc.
Date Filed: September 26, 2008
o
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:
x
third-party
tender offer subject to Rule 14d-1.
o
issuer
tender offer subject to Rule 13e-4.
o
going-private
transaction subject to Rule 13e-3.
o
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:
o
AMENDMENT NO. 3 TO
SCHEDULE TO
This Amendment No. 3 (Amendment No. 3)
amends and supplements the Tender Offer Statement on Schedule TO filed with the
U.S. Securities and Exchange Commission (the SEC) on September 26, 2008,
as amended by Amendment No. 1, filed with the SEC on October 2, 2008,
and Amendment No. 2, filed with the SEC on October 10, 2008
(collectively, the Schedule TO). The
Schedule TO relates to the offer by Puma Cat Acquisition Corp., a Delaware corporation
(the Purchaser) and wholly-owned subsidiary of Best Buy Co., Inc., a
Minnesota corporation (Best Buy), to purchase all outstanding shares of
common stock, par value $0.001 per share, and the stock purchase rights
associated with such shares (collectively, the Shares), of Napster, Inc.,
a Delaware corporation (Napster), at a purchase price of $2.65 per Share, net
to the seller in cash, without interest thereon, upon the terms and subject to
the conditions set forth in the Offer to Purchase dated September 26, 2008
(the Offer to Purchase), and in the related Letter of Transmittal (which,
together with any supplements or amendments thereto, collectively constitute
the Offer), copies of which are attached to the Schedule TO as Exhibits
(a)(1)(A) and (a)(1)(B), respectively. Capitalized terms used and not otherwise
defined in this Amendment No. 3 have the meanings assigned to such terms
in the Offer to Purchase or in the Schedule TO.
This Amendment No. 3 is a resubmission of Amendment No. 2,
which was erroneously filed by the financial printer for Best Buy and Purchaser
under the incorrect Issuer. This
Amendment No. 3 also amends Items 4 and 11 of the Schedule TO in the
manner described in Item 4(c) and Item 11, below, respectively.
Item 4.
Terms of the Transaction.
(a) Item 4 of the Schedule TO is amended
by deleting in its entirety the last sentence of the paragraph entitled
Determination of Validity
in Section 3 (Procedure for
Tendering Shares) on page 10 of the Offer to Purchase.
(b) Item 4 of the Schedule TO is amended
and supplemented by deleting the penultimate paragraph of Section 14 (Certain
Conditions of the Offer) on page 40 of the Offer to Purchase and
replacing such paragraph with the following text:
The
foregoing conditions (other than the Minimum Condition) are for the sole
benefit of Best Buy and Purchaser and may be asserted by Best Buy or Purchaser
regardless of the circumstances (other than any action or inaction by Best Buy
or Purchaser) giving rise to any such condition, or may be waived by Best Buy
or Purchaser, in whole or in part, in its sole discretion, except as otherwise
provided in the Merger Agreement. The
failure by Best Buy or Purchaser to exercise any of the foregoing rights shall
not be deemed a waiver of any such right and each such right shall be deemed an
ongoing right and may be asserted at any time and from time to time on or
before the expiration of the Offer (except for conditions dependent upon the
receipt of necessary government approvals, which may be asserted at any time
and from time to time).
(c) Item 4 of the Schedule TO is amended
and supplemented to include the following:
Pursuant
to the German Act against Restraints of Competition (the Act), Best Buy filed
notification of the Offer and the related transactions with the German
Federal Cartel
Office (the GFCO) on October 2, 2008.
On October 14, 2008,
Best Buy was notified that the GFCO has granted clearance to proceed with the
Offer. Accordingly, the condition to the
Offer requiring the clearance or expiration of the required one-month waiting
period under the Act has been satisfied.
The Offer continues to be conditioned upon other conditions described in
the Offer.
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Item 8.
Interest in Securities of the
Subject Company.
Item
8 of the Schedule TO is amended to include and supplemented with the following
information:
As
disclosed in the Schedule 13D filed with the SEC by Best Buy on September 24,
2008, Best Buy Enterprise Services, Inc., a wholly-owned subsidiary of
Best Buy, owns 1,099,626 Shares. Additionally, Best Buy and Purchaser may each
be deemed to have shared voting power and shared dispositive power with respect
to (and therefore beneficially own) the 5,193,084 Shares subject to the
Shareholder Support Agreement, 2,371,411 of which are issuable pursuant to the
exercise of unexpired stock options, none of which have an exercise price of
less than $2.65 per share. As a result,
Best Buy may be deemed to beneficially own an aggregate of 6,292,710 Shares, or
12.5% of all outstanding Shares as of September 14, 2008 (including
2,371,411 Shares issuable pursuant to the exercise of unexpired stock options,
none of which have an exercise price of less than $2.65 per share); Best Buy
Enterprise Services, Inc. may be deemed to beneficially own an aggregate
of 1,099,626 Shares, or 2.2% of all outstanding Shares as of September 14,
2008; and Purchaser may be deemed to beneficially own an aggregate of 5,193,084
Shares, or 10.3% of all outstanding Shares as of September 14, 2008
(including 2,371,411 Shares issuable pursuant to the exercise of unexpired
stock options, none of which have an exercise price of less than $2.65 per
share).
Item 11.
Additional Information.
(a) Item 11 of the Schedule TO is amended
and supplemented to include the information disclosed in Item 4(c), above.
(b) Item 11 of the Schedule TO is amended
and supplemented to include the following:
On
October 10, 2008, two purported stockholders of Napster filed an amendment
to their original complaint and purported class action lawsuit, captioned
Joseph Sullivan, et al., v. William Christopher
Gorog, et al.
, Case Number BC398258 (the Sullivan Action), filed
in the Superior Court of the State of California, Los Angeles County on September 16,
2008. The amended complaint adds a third
claim, which alleges additional breaches of fiduciary duties by Napster and its
directors in connection with the Offer.
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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.
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PUMA CAT ACQUISITION CORP.
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By:
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/s/
Joseph M. Joyce
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Name:
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Joseph M. Joyce
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Its:
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President and Secretary
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BEST BUY CO., INC.
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By:
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/s/
Joseph M. Joyce
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Name:
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Joseph M. Joyce
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Its:
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Senior Vice President,
General Counsel and
Assistant Secretary
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Dated:
October 14, 2008
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