Amended Statement of Ownership: Solicitation (sc 14d9/a)
August 03 2016 - 3:55PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
14D-9
(Amendment No. 5)
Solicitation/Recommendation Statement
Under Section 14(d)(4) of the Securities Exchange Act of 1934
SKULLCANDY, INC.
(Name
of Subject Company)
SKULLCANDY, INC.
(Name
of Person Filing Statement)
Common Stock, par value $0.0001 per share
(Title of Class of Securities)
83083J104
(CUSIP Number
of Class of Securities)
Patrick Grosso
Vice President, Strategic Initiatives and Corporate Affairs,
Chief Legal Officer and Secretary
Skullcandy, Inc.
1441
West Ute Boulevard, Suite 250
Park City, Utah 84098
(435) 940-1545
(Name,
address and telephone number of person authorized to receive notices and communications
on behalf of the persons filing statement)
With copies to:
Cary K. Hyden
David M.
Wheeler
Latham & Watkins LLP
650 Town Center Drive, 20th Floor
Costa Mesa, California 92626
(714) 540-1235
¨
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Purpose of Amendment.
This Amendment No. 5 (this
Amendment
) amends and supplements the Solicitation/Recommendation Statement on Schedule
14D-9
of Skullcandy, Inc. (the
Company
) filed with the Securities and Exchange Commission (the
SEC
) on July 6, 2016 (as may be amended or supplemented from time to time, the
Schedule 14D-9
). The Schedule 14D-9 relates to the tender offer by Powder Merger Sub, Inc., a Delaware corporation (
Purchaser
) and a direct wholly owned subsidiary of Incipio, LLC, a Delaware limited liability
company (
Parent
), to purchase any and all of the issued and outstanding shares of the Companys common stock, par value $0.0001 per share (the
Company Shares
), other than any Company Shares that are owned
immediately prior to the commencement of the Offer (as defined below) by Parent, Purchaser, the Company or any of their wholly owned subsidiaries, at a purchase price of $6.10 per Company Share (the
Offer Price
), net to the seller
thereof in cash, without interest and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Amended Offer to Purchase, dated August 3, 2016 (as may be amended or supplemented from time to time, the
Offer to Purchase
), and in the related Amended Letter of Transmittal (which, together with the Offer to Purchase, as each may be amended or supplemented from time to time, constitute the
Offer
). The Offer is
described in a Tender Offer Statement on Schedule TO (as may be amended or supplemented from time to time, the
Schedule TO
) filed by Parent and Purchaser with the SEC on July 6, 2016, as amended. The Offer to Purchase and Amended
Form of Letter of Transmittal are filed as Exhibits (a)(1)(F) and (a)(1)(G), respectively, to the Schedule TO.
Except as otherwise set forth below, the
information set forth in the Schedule 14D-9 remains unchanged and is incorporated by reference as relevant to the items in this Amendment. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Schedule
14D-9. This Amendment is being filed to reflect certain updates as reflected below.
Item 4.
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The Solicitation or Recommendation.
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Item 4 of the Schedule 14D-9 is hereby
amended and supplemented by adding the following after the final paragraph under the heading Background and Reasons for the Company Boards RecommendationBackground of the Offer:
On August 3, 2016, the Company, Parent and Purchaser entered into an amendment to the Merger Agreement (the
Amendment). Pursuant to the Amendment, among other things, the Offer Price was increased from $5.75 to $6.10 per Company Share.
On August 3, 2016, the Company and Parent issued a joint press release announcing that the Company has entered into the
Amendment and that the Company Board had determined, after consultation with its outside counsel and financial advisor, that the July 28 Mill Road Proposal no longer constituted a Superior Proposal. The press release also stated that the
Company Board continues to recommend that the Companys stockholders accept the Offer and tender their Company Shares to Purchaser in the Offer. A copy of the press release is attached to this Statement as Exhibit (a)(12) and is incorporated
herein by reference. A copy of the executed Amendment is attached to this Statement as Exhibit (e)(23) and is incorporated herein by reference.
Item 9. Exhibits.
Item 9 of the Schedule 14D-9 is
hereby amended and supplemented by inserting the following exhibit thereto:
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Exhibit
No.
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Description
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(a)(12)
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Joint Press Release issued by the Company and Parent on August 3, 2016 (incorporated by reference to Exhibit 99.1 of the Companys Current Report on Form 8-K filed with the SEC on August 3, 2016).
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(a)(13)
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Amended Offer to Purchase dated August 3, 2016 (incorporated by reference to Exhibit (a)(1)(F) to the Schedule TO).
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(a)(14)
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Form of Amended Letter of Transmittal (including Internal Revenue Service Form W-9, including instructions for completing the form) (incorporated by reference to Exhibit (a)(1)(G) to the Schedule TO).
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(e)(23)
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Amendment No. 1, dated August 3, 2016, to the Agreement and Plan of Merger, by and among the Company, Parent and Purchaser (incorporated by reference to Exhibit 2.1 of the Companys Current Report on Form 8-K filed with the SEC
on August 3, 2016).
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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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Skullcandy, Inc.
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By:
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/s/ Patrick Grosso
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Name:
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Patrick Grosso
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Title:
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Vice President, Strategic Initiatives
and
Corporate Affairs, Chief Legal
Officer and Secretary
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Dated: August 3, 2016
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