UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Napster, Inc.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
630797108
(CUSIP Number)
John R. Houston, Esq.
Robins, Kaplan, Miller &
Ciresi L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
612-349-8500
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
September 14, 2008
(Date of Event which Requires Filing of this Statement)
If the filing
person has previously filed a statement on Schedule 13G to report the
acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13-1(g),
check the following box [ ].
Note.
Schedules filed in paper format shall
include a signed original and five copies of the schedule, including all
exhibits.
See
§ 240.13d-7 for other parties
to whom copies are to be sent.
*The remainder of
this cover page shall be filled out for a reporting persons initial
filing on this form with respect to the subject class of securities, and for
any subsequent amendment containing information which would alter disclosures
provided in a prior cover page.
The information
required on the remainder of this cover page shall not be deemed to be filed
for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act)
or otherwise subject to the liabilities of that section of the Act but shall be
subject to all other provisions of the Act (however,
see
the Notes).
CUSIP No. 630797108
(1)
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Name
of Reporting Person
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Best
Buy Co., Inc.
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(2)
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Check
the Appropriate Box if a Member of a Group
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(a)
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x
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(b)
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o
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(3)
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SEC
Use Only
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(4)
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Source
of Funds
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WC
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(5)
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Check
if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
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o
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(6)
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Citizenship
or Place of Organization
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Minnesota
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Number
of Shares Beneficially Owned by Each Reporting Person With
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(7)
Sole Voting
Power 0 shares
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(8)
Shared Voting
Power 6,292,710 shares
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(9)
Sole
Dispositive Power 0 shares
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(10)
Shared
Dispositive Power 6,292,710 shares
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(11)
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Aggregate
Amount Beneficially Owned by Each Reporting Person
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6,292,710 shares
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(12)
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Check
if the Aggregate Amount in Row (11) Excludes Certain Shares
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(13)
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Percent
of Class Represented by Amount in Row (11)
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12.5%
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(14)
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Type
of Reporting Person (See Instructions)
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CO
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2
CUSIP No. 630797108
(1)
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Name
of Reporting Person
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Best
Buy Enterprise Services, Inc.
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(2)
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Check
the Appropriate Box if a Member of a Group
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(a)
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x
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(b)
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(3)
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SEC
Use Only
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(4)
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Source
of Funds
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OO
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(5)
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Check
if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
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o
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(6)
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Citizenship
or Place of Organization
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Minnesota
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Number
of Shares Beneficially Owned by Each Reporting Person With
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(7)
Sole Voting
Power 0 shares
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(8)
Shared Voting
Power 1,099,626 shares
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(9)
Sole
Dispositive Power 0 shares
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(10)
Shared
Dispositive Power 1,099,626 shares
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(11)
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Aggregate
Amount Beneficially Owned by Each Reporting Person
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1,099,626 shares
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(12)
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Check
if the Aggregate Amount in Row (11) Excludes Certain Shares
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(13)
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Percent
of Class Represented by Amount in Row (11)
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2.2%
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(14)
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Type
of Reporting Person (See Instructions)
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CO
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3
CUSIP No. 630797108
(1)
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Name
of Reporting Person
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Puma
Cat Acquisition Corp.
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(2)
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Check
the Appropriate Box if a Member of a Group
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(a)
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x
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(b)
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(3)
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SEC
Use Only
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(4)
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Source
of Funds
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OO
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(5)
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Check
if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
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(6)
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Citizenship
or Place of Organization
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Delaware
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Number
of Shares Beneficially Owned by Each Reporting Person With
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(7)
Sole Voting
Power 0 shares
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(8)
Shared Voting
Power 5,193,084 shares
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(9)
Sole
Dispositive Power 0 shares
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(10)
Shared
Dispositive Power 5,193,084 shares
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(11)
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Aggregate
Amount Beneficially Owned by Each Reporting Person
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5,193,084 shares
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(12)
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Check
if the Aggregate Amount in Row (11) Excludes Certain Shares
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(13)
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Percent
of Class Represented by Amount in Row (11)
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10.3%
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(14)
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Type
of Reporting Person (See Instructions)
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CO
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4
ITEM 1.
SECURITY AND ISSUER.
The class of equity
securities to which this Statement on Schedule 13D relates is the common stock,
par value $0.001, of Napster, Inc., a Delaware corporation (Issuer). Issuers principal executive office is
located at 9044 Melrose Avenue, Los Angeles, California 90069.
ITEM 2.
IDENTITY AND BACKGROUND.
(a - c)
This Schedule 13D is being filed by Best Buy Co., Inc.,
a Minnesota corporation (Parent), Best Buy Enterprise Services, Inc., a
Minnesota corporation and a wholly-owned subsidiary of Parent (Enterprise
Services), and Puma Cat Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Parent (Purchaser and collectively, the Reporting
Persons). The business address of the
Reporting Persons is 7601 Penn Avenue South, Richfield, MN 55423. Parent is a specialty retailer of consumer
electronics, home office products, entertainment software, appliances, and related
services. Enterprise Services provides
general business and administrative support services to various Parent
operating entities. Purchaser was formed
for the sole purpose of merging with and into Issuer.
The directors of Parent
and their principal occupations are as follows:
Richard M. Schulze, Chairman of the Board of Parent, 7601 Penn Avenue
South, Richfield, MN 55423.
Bradbury H. Anderson, Vice Chairman of the Board of Parent and Chief
Executive Officer of Parent, 7601 Penn Avenue South, Richfield, MN 55423.
Kathy J. Higgins Victor, President of Centera Corporation, P.O. Box
19120, Minneapolis, MN 55419.
Ronald James, President and Chief Executive Officer of the Center for
Ethical Business Cultures, 1000 LaSalle Avenue, Minneapolis, MN 55403.
Elliot S. Kaplan, Secretary of the Board of Parent and Partner at
Robins, Kaplan, Miller & Ciresi L.L.P., 2800 LaSalle Plaza, 800
LaSalle Avenue, Minneapolis, MN 55402.
Allen U. Lenzmeier, Vice Chairman of the Board of Parent, 7601 Penn
Avenue South, Richfield, MN 55423.
George L. Mikan III, Executive Vice President and Chief Financial
Officer of UnitedHealth Group Incorporated, 9900 Bren Road East, Minnetonka, MN
55343.
5
Matthew H. Paull, Executive Professor in Residence at the University of
San Diego, 5998 Alcalá Park, San Diego, CA 92110.
Rogelio M. Rebolledo, retired Chairman of PBG Mexico and director of
Parent, 7601 Penn Avenue South, Richfield, MN 55423.
Frank D. Trestman, President of Trestman Enterprises and Chairman of
The Avalon Group, 5500 Wayzata Boulevard #1045, Golden Valley, MN 55416.
Hatim A. Tyabji, Executive Chairman of Bytemobile, Inc., 2025
Stierlin Court, Suite 200, Mountain View, CA 94043.
The
directors of Enterprise Services and their principal occupations are as
follows:
Bradbury H. Anderson,
Vice Chairman of the Board of Parent and Chief Executive Officer of Parent,
7601 Penn Avenue South, Richfield, MN 55423.
Brian
J. Dunn, President and Chief Operating Officer of Parent,
7601 Penn Avenue South, Richfield, MN
55423.
James
L. Muehlbauer, Executive Vice President Finance and Chief Financial Officer
of Parent,
7601 Penn
Avenue South, Richfield, MN 55423.
The
executive officers of Parent and Enterprise Services are Bradbury H. Anderson
(Vice Chairman and Chief Executive Officer), Brian J. Dunn (President and Chief
Operating Officer), James L. Muehlbauer (Executive Vice President Finance and
Chief Financial Officer), Robert A. Willett (Chief Executive Officer Best Buy
International & Chief Information Officer), Shari L. Ballard
(Executive Vice President Retail Channel Management), David P. Berg
(Executive Vice President Chief Operating Officer, Best Buy International),
Susan S. Grafton (Vice President, Controller and Chief Accounting Officer),
Joseph M. Joyce (Senior Vice President General Counsel and Assistant
Secretary), David J. Morrish (Executive Vice President Connected Digital
Solutions), John Noble (Senior Vice President and Chief Financial Officer
Best Buy International), Kalendu Patel (Executive Vice President Emerging
Business), Jonathan E. Pershing (Executive Vice President Human Capital),
Michael J. Pratt (President Best Buy Canada), Ryan D. Robinson (Senior Vice
President - U.S. Strategic Business Unit Chief Financial Officer and
Treasurer), Roger W. Taylor (Chief Executive Officer Best Buy Europe
Distributions Limited) and Michael A. Vitelli (Executive Vice President
Customer Operating Groups). The
principal business address of each of the executive officers of Parent and
Enterprise Services is
7601
Penn Avenue South, Richfield, MN 55423
.
The directors of
Purchaser are David J. Morrish and Joseph M. Joyce, whose principal occupations
are, respectively, Executive Vice President Connected Digital Solutions of
Parent and
Senior Vice President General Counsel and Assistant Secretary of
Parent
. The executive
6
officers of Purchaser are
David J. Morrish (Chief Executive Officer), Joseph M. Joyce (President and
Secretary) and James L. Muehlbauer (Chief Financial Officer). The principal business address of each of the
directors and executive officers of Purchaser is 7601 Penn Avenue South,
Richfield, MN 55423.
(d - e)
During the last five years, none of the Reporting
Persons nor any of the executive officers and directors of the Reporting
Persons: (i) has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors), or (ii) has been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of which he, she or it was or is subject to a judgment, decree,
or final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any
violation of such laws.
(f)
Each of the directors and officers of the
Reporting Per
sons is a
United States citizen
, except for Rogelio M. Rebolledo, Robert A.
Willett, Kalendu Patel, John Noble, Michael A. Pratt, David J. Morrish and
Roger W. Taylor. Mr. Rebolledo is a
citizen of Mexico, Messrs. Willett, Patel, Taylor and Noble are citizens
of the United Kingdom, and Messrs. Pratt and Morrish are citizens of
Canada.
ITEM 3.
SOURCE AND AMOUNT OF FUNDS OR
OTHER CONSIDERATION.
Source and Amount of Funds for 1,099,626 Shares
Beneficially Owned by Parent and Enterprise Services
Parent and Enterprise
Services have shared voting power and shared dispositive power with respect to
1,099,626 shares of Issuer common stock.
These shares were acquired pursuant to a stock purchase agreement by and
between Enterprise Services and the Issuer, dated as of June 17, 2004,
entered into in connection with a strategic marketing agreement between Best
Buy Stores, L.P., a Delaware limited partnership, and Issuer for consideration
of approximately $5,000,000 in services rendered and a nominal amount of cash.
Consideration for Shares Subject
to the Shareholder Support Agreement
On September 15, 2008,
Parent announced that it had entered into an Agreement and Plan of Merger (the Merger
Agreement), dated as of September 14, 2008, by and among Parent,
Purchaser and the Issuer. Pursuant to
the Merger Agreement, and subject to the conditions set forth therein,
Purchaser will commence a cash tender offer to acquire all of the Issuers
issued and outstanding shares of common stock, par value $0.001 per share, and
all stock purchase rights associated with such shares (the Shares), at a
price of $2.65 per share, without any interest or accrued dividends, net to the
seller in cash (the Offer). Following
completion of the Offer, and the satisfaction or waiver of customary closing
conditions, including a condition that the number of Shares validly tendered
and not properly withdrawn before the expiration date of the Offer represent,
together with any Shares owned, directly or indirectly, by Parent, in the
aggregate, more than fifty percent (50%) of the outstanding Shares on a fully
diluted basis (calculated in accordance with the provisions of the Merger
Agreement), and the expiration or termination of applicable waiting periods
under the Hart-Scott-Rodino Antitrust Improvement Act of 1976, Purchaser will
be merged with and into the Issuer, with Issuer as the surviving corporation
(the Surviving Corporation) and a wholly-owned subsidiary of Parent (the Merger). In the Merger, each Share (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)
will be converted into the right to receive the cash amount payable in the
Offer.
7
Concurrently with the execution of the Merger
Agreement, Parent and Purchaser entered into a Shareholder Support Agreement
(the Shareholder Support Agreement) with certain stockholders of Napster
(collectively, the Stockholders). The
purpose of the Shareholder Support Agreement is to facilitate the consummation
of the transactions contemplated by the Merger Agreement. Parent and Purchaser made the execution of
the Shareholder Support Agreement a condition to entering into the Merger
Agreement, but the Stockholders did not otherwise receive any consideration
from Parent and Purchaser as an inducement to enter into the Shareholder
Support Agreement.
The Shareholder Support Agreement applies to all
securities of Issuer beneficially owned by the Stockholders as of the date of
the Shareholder Support Agreement or acquired thereafter, including any shares
of Issuers common stock subject to restricted stock awards or issuable upon
exercise of options held by the Stockholders.
Except as described below, Shares that are subject to restricted stock
awards that are not vested cannot be tendered in the Offer (unless they vest
prior to the expiration of the Offer) but may be voted on the approval of the
Merger Agreement and the Merger.
However, 25% of the unvested restricted stock awards (and all of the
restricted stock awards held by Christopher Gorog and the directors of the
Issuer) accelerate upon the consummation of the Offer, and the Shares subject
thereto (net of any shares withheld by Issuer to satisfy tax obligations) may
be tendered in the Offer. All
outstanding options will vest upon consummation of the Merger. Under the Shareholder Support Agreement, the
Stockholders have agreed to tender all Shares owned by such Stockholders within
ten (10) business days of the commencement of the Offer and to vote all of
their Shares in favor of approval and adoption of the Merger Agreement and the
Merger, against any proposal or transaction which could prevent or delay the
consummation of the Merger, and against any corporate action which would
frustrate the purposes of, or prevent or delay the consummation of, the Merger.
Pursuant to the Shareholder Support Agreement, the
Stockholders, among other things, (i) agreed to tender all Shares owned by them
within ten (10) business days of the commencement of the Offer, (ii) agreed to
vote all of their Shares (a) in favor of approval and adoption of the Merger
Agreement and the Merger, (b) against any proposal or transaction which could
prevent or delay the consummation of the Merger, and (c) against any corporate
action which would frustrate the purposes of, or prevent or delay the
consummation of, the Merger, (iii) granted a proxy to Purchaser to direct the
voting of all Shares subject thereto with respect to the Merger and related
matters, and (iv) are prohibited from transferring any of the Issuers
securities, except under certain circumstances and subject to certain
limitations. Other than with respect to
the matters described in, and subject to the limitations set forth in, the
Shareholder Support Agreement, Parent and Purchaser do not have the right to
vote or direct the vote, or to dispose or to direct the disposition of, any of
the Shares subject thereto.
8
The Shareholder Support Agreement terminates
automatically, without any notice or other action by any party, upon the earliest
to occur of (i) the tender and acceptance of the Shares pursuant to the
Offer, (ii) the consummation of the Merger, and (iii) the termination
of the Merger Agreement. The Stockholders
will also have the right to terminate the Shareholder Support Agreement
immediately following (x) any change in the nature of the consideration
payable in the Offer or the Merger, (y) any decrease in consideration
payable in the Offer or the Merger, or (z) any increase in the
consideration payable to the Stockholders for the Shares that is not made
equally available to holders of all shares of the Issuers capital stock of the
same class or series.
Consideration for Shares Issuable Pursuant to
Exercise of Top-Up Stock Option
In the Merger Agreement, the Issuer has granted to
Purchaser an option (the Top-Up Option) to purchase up to a number of
newly-issued shares of the Issuer equal to the lowest number of shares that,
when added to the number of Shares owned by Parent and Purchaser at the time of
such exercise, will constitute one Share more than 90% of the Shares (after
giving effect to the exercise of the Top-Up Option), at a purchase price per
share equal to the price paid per Share in the Offer. The maximum number of shares issuable
pursuant to the Top-Up Option is equal to the maximum number of Shares the
Issuer could issue without obtaining the approval of the Issuers stockholders
required under applicable law or under the regulations of any stock exchange
applicable to Issuer, or that exceeds the number of Shares authorized in the
Issuers Certificate of Incorporation.
The Reporting Persons disclaim beneficial ownership of these Shares.
References to, and descriptions of, the Merger
Agreement and the Shareholder Support Agreement set forth herein are qualified
in their entirety by reference to the copies of the Merger Agreement and the
Shareholder Support Agreement included as Exhibit 3.1 and 3.2,
respectively, to this Schedule 13D, each of which is incorporated herein by
reference in its entirety where such references appear.
ITEM 4.
PURPOSE OF TRANSACTION.
(a b)
As described in Item 3 above, this Schedule 13D
relates to the Shareholder Support Agreement and the Top-Up Option, the purpose
of which are to assist Parent and Purchaser in consummating the Merger of
Issuer and Purchaser pursuant to the Merger Agreement.
(c)
Not applicable.
(d) Upon completion of
the Offer, Parent has the right to designate a number of directors on Issuers
board of directors (and each committee of Issuers board of directors and the
boards of directors of its subsidiaries) that will give Parent representation
on such boards of directors and committees proportional to the number of Shares
purchased by Purchaser as compared to the number of Shares outstanding, subject
to the requirement that a minimum of two disinterested members of the current
board of directors of the Issuer remain in office. The Issuer has agreed to either increase the
size of its board of directors or use its reasonable best efforts to secure
resignations from such number of directors as is necessary to provide Parent
with this level of representation, and to cause the designees of Parent to be
elected.
9
Upon consummation of the
Merger, the directors of Purchaser will be the directors of the Surviving
Corporation until their respective successors are duly elected and qualified,
and Purchaser shall designate officers immediately prior to the effective time
of the Merger to be the initial officers of the Surviving Corporation who shall
hold office until their respective successors are duly elected and
qualified. The directors of Purchaser
were appointed by Parent and are identified in Item 2 above.
(e)
Other than as a result of the Merger, not
applicable.
(f)
Not applicable.
(g)
Upon consummation of the Merger, the
Certificate of Incorporation and Bylaws of the Surviving Corporation shall be
amended in their entirety to read as the Certificate of Incorporation and
Bylaws of Purchaser, until thereafter amended in accordance with applicable
law, except that Article I of the Certificate of Incorporation of the
Surviving Corporation shall be a
mended so that the name of the
Surviving
Corporation will be Napster, Inc.
(h i)
Upon consummation of the Merger, all
Shares will be deregistered under the Securities Exchange Act of 1934, as
amended (the Exchange Act), and Purchaser will cause the Shares to cease to
be authorized for quotation and traded on the Nasdaq Global Market.
(j)
Other than as described above, the
Reporting Persons currently have no plans or proposals which relate to, or may
result in, any of the matters listed in Items 4(a) (i) of Schedule
13D, inclusive.
ITEM 5.
INTEREST IN SECURITIES OF THE
ISSUER.
(a b) Under the definition of beneficial
ownership as set forth in Rule 13d-3 of the Exchange Act, as of September 14,
2008, Parent and Enterprise Services beneficially owned 1,099,626 Shares. Parent and Enterprise Services have shared
voting power and shared dispositive power with respect to these Shares. Additionally, Parent and Purchaser may each
be deemed to have shared voting power and shared dispositive power with respect
to (and therefore beneficially own) an additional 5,193,084 Shares, inclusive
of 4,563,787 Shares subject to unvested restricted stock awards or issuable
pursuant to options that are vested or will vest within 60 days of the date of
the Merger Agreement. As a result,
Parent 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; Enterprise
Services 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
10
of 5,193,084 Shares, or
10.3% of all outstanding Shares as of September 14, 2008. The foregoing percentages were calculated
based on a total of 47,898,271 outstanding Shares (including Shares subject to
unvested restricted stock awards) as of September 14, 2008 (as represented
by Issuer in the Merger Agreement) plus 2,371,411 Shares issuable pursuant to
the exercise of options held by the parties to the Shareholder Support
Agreement, none of which have an exercise price of less than $2.65 per
share. Except as described herein, the
Reporting Persons are not entitled to any rights as a stockholder of Issuer
with respect to the Shares subject to the Shareholder Support Agreement, and
expressly disclaim any beneficial ownership of such Shares.
In the event
Parent and Purchaser
exercise the Top-Up Option described in Item 3 above, they will have
sole voting power and sole dispositive power over the Shares issued upon
exercise.
(c)
Neither the Reporting Persons nor any of
their respective directors or executive officers has effected any transaction
in Shares during the past 60 days.
(d)
To the knowledge of the Reporting
Persons, no other person has the right to receive or the power to direct the
receipt of dividends or proceeds from the sale of the Shares beneficially owned
by the Reporting Persons on the date of this Schedule 13D.
(e)
Not applicable.
ITEM 6.
CONTRACTS, ARRANGEMENTS,
UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO THE SECURITIES OF THE ISSUER.
Other than the Merger
Agreement and the Shareholder Support Agreement, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) with respect
to securities of Issuer that would be required to be reported under this Item.
ITEM 7.
MATERIAL TO BE FILED AS EXHIBITS.
The following documents
are filed as exhibits:
Exhibit 3.1
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Agreement and Plan of
Merger, dated September 14, 2008, by and among Best Buy Co., Inc.,
Puma Cat Acquisition Corp. and Napster, Inc. (incorporated by reference
to Exhibit 2.1 to the Current Report on Form 8-K of Best Buy
Co., Inc. filed with the Securities and Exchange Commission on
September 15, 2008)
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Exhibit 3.2
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Shareholder Support
Agreement, dated September 14, 2008, by and between Best Buy
Co., Inc., Puma Cat Acquisition Corp., Christopher Allen, Vernon E.
Altman, Aileen Atkins, Richard J. Boyko, Suzanne M. Colvin, Bradford D. Duea,
Wm.
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11
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Christopher Gorog,
Philip J. Holthouse, Joseph C. Kaczorowski, Ross Levinsohn, Brian C. Mulligan
and Robert Rodin (incorporated by reference to Exhibit 2.2 to the
Current Report on Form 8-K of Best Buy Co., Inc. filed with the
Securities and Exchange Commission on September 15, 2008)
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Exhibit 99.1
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Joint Filing Agreement,
dated September 24, 2008, between Best Buy Co, Inc., Best Buy
Enterprise Services, Inc. and Puma Cat Acquisition Corp., pursuant to
Rule 13d-1(k)(1).
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12
SIGNATURE
After reasonable 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.
Date: September 24
, 2008
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BEST BUY CO., INC.
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/s/ Susan S. Grafton
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(Signature)
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Susan S. Grafton, Vice President, Controller and Chief Accounting
Officer
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(Name and Title)
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BEST BUY ENTERPRISE SERVICES, INC.
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/s/ Todd G. Hartman
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(Signature)
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Todd G. Hartman, Vice President, Associate General Counsel and Chief
Compliance Officer
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(Name and Title)
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PUMA CAT ACQUISITION CORP.
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/s/ Todd G. Hartman
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(Signature)
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Todd G. Hartman, Vice President
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(Name and Title)
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13
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