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. 5)
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.
O’Melveny
& 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. 5 (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, Amendment No. 2
on
October 10, 2008, Amendment No. 3 on October 14, 2008 and Amendment No. 4 on
October 27, 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 and amended by Amendment No. 1 on
October 2, 2008, Amendment No. 2 on October 10, 2008, Amendment No. 3 on October
14, 2008 and Amendment No. 4 on October 27, 2008, to purchase all issued and
outstanding shares of the Company’s 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, the “Offer to Purchase”) and in
the related Letter of Transmittal (as amended or supplemented from time to
time,
the “Letter of Transmittal,” which together with the Offer to Purchase
constitute the “Offer”), 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. Additional Information.
Item
8(j)
(“The Offer”) of Schedule 14D-9 is hereby amended and supplemented to include
the following:
“At
12:00
midnight, Eastern Time, at the end of Wednesday, October 29, 2008, the
Subsequent Offering Period expired. Based on information provided by U.S. Bank
National Association, the depositary for the Offer, as of the expiration of
the
Subsequent Offering Period, an additional 3,932,720 Shares were validly
tendered, resulting in the ownership by Purchaser of an aggregate of
40,558,382 Shares, representing approximately 85.9% of the outstanding
Shares. Purchaser accepted for payment all Shares validly tendered during the
Subsequent Offering Period in accordance with the terms of the Offer and has
advised the Company that it will promptly pay for such Shares. In order to
acquire more than 90% of the outstanding Shares (excluding Shares tendered
through guaranteed delivery procedures and not yet delivered), Purchaser,
pursuant to the terms of the Merger Agreement, exercised its Top-Up Option.
As a
result of Purchaser’s acquisition of the Shares validly tendered during the
initial offering period, Shares validly tendered during the Subsequent Offering
Period and the Shares issued pursuant to the Top-Up Option, Purchaser owns
more
than 90% of the outstanding Shares (excluding Shares tendered through guaranteed
delivery procedures and not yet delivered). Pursuant to the Merger Agreement,
Parent intends to cause Purchaser to merge with and into the Company on or
before Friday, October 31, 2008, without a meeting of the Company’s
stockholders, in accordance with the DGCL’s “short-form” merger statute, with
the Company continuing as the Surviving Corporation and a wholly-owned
subsidiary of Parent. As a result of the Merger, each outstanding Share that
was
not purchased in the Offer (other than Shares held by Purchaser or Parent,
treasury Shares, which will be cancelled, and Shares held by stockholders,
if
any, who properly exercise appraisal rights in accordance with the DGCL) will
be
converted into the right to receive $2.65 per Share, in cash, without interest.
Shares held by stockholders who perfect their appraisal rights will represent
only the right to receive the amount awarded in the appraisal, or, if such
demand for appraisal is withdrawn or forfeited, $2.65 per Share, in cash,
without interest.”
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
Secretary
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Dated:
October 30, 2008
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