- Amended Statement of Ownership: Solicitation (SC 14D9/A)
October 14 2008 - 5:20PM
Edgar (US Regulatory)
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. 3)
Napster, Inc.
(Name of Subject Company)
Napster, Inc.
(Names of Person(s) Filing Statement)
Common Stock, par value $0.001 per share
(Title of Class of Securities)
630797108
(CUSIP
Number of Class of Securities)
Wm. Christopher Gorog
Chief Executive Officer and Chairman of the Board
Napster, Inc.
9044 Melrose Avenue
Los Angeles, California 90069
(310) 281-5000
(Name, address, and telephone numbers of person authorized to receive notices and
communications on behalf of the person(s) filing statement)
With a copy to:
David Krinsky, Esq.
OMelveny &
Myers LLP
610 Newport Center Drive, Suite 1700
Newport Beach, California 92660
(949) 760-9600
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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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This Amendment No. 3 (this Amendment) amends and supplements Item 8 in the
Solicitation/Recommendation Statement on Schedule 14D-9 initially filed with the U.S. Securities and Exchange Commission (the SEC) on September 26, 2008, and subsequently amended by Amendment No. 1 on October 2, 2008 and
Amendment No. 2 on October 10, 2008 (as further amended from time to time, the Schedule 14D-9), by Napster, Inc., a Delaware corporation (the Company). The Schedule 14D-9 relates to a tender offer by Puma Cat
Acquisition Corp., a Delaware corporation (Purchaser) and a wholly-owned subsidiary of Best Buy Co., Inc., a Minnesota corporation (Parent), disclosed in a Tender Offer Statement on Schedule TO, as amended through the date
hereof (as amended, the Schedule TO), originally filed with the SEC on September 26, 2008, to purchase all issued and outstanding shares of the Companys common stock, and the stock purchase rights associated with such shares
(the Shares), at a price of $2.65 per Share, without interest or accrued dividends, net to the seller in cash, upon the terms and subject to the conditions in the Offer to Purchase dated September 26, 2008 (as amended or
supplemented from time to time) and in the related Letter of Transmittal (as amended or supplemented from time to time), which were filed as exhibits to the Schedule TO.
All information in the Schedule 14D-9 is incorporated by reference in this Amendment, except that such information is hereby amended and supplemented to the extent specifically provided herein. Except as otherwise
indicated, the information set forth in the Schedule 14D-9 remains unchanged. Capitalized terms used below but not defined in this Amendment have the meanings set forth in the Schedule 14D-9.
Item 8.
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Additional Information.
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Item 8(f)
Regulatory Approvals of Schedule 14D-9 is hereby amended and supplemented to include the following:
Pursuant to the
German Act against Restraints of Competition (the Act), Parent filed notification of the Offer and the related transactions with the GFCO on October 2, 2008. On October 14, 2008, Parent 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.
Item 8(g) Legal Proceedings of Schedule 14D-9 is hereby amended and supplemented to include the following:
On October 10, 2008, two purported stockholders of the Company filed an amendment to the Sullivan Action, which was initially 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 the Company and its directors in connection with the
Offer.
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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NAPSTER, INC.
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By:
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/s/ Aileen Atkins
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Aileen Atkins
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Secretary
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Dated: October 14, 2008
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