UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of
Report (Date of earliest event reported):
October
25, 2008
Napster,
Inc.
(Exact
Name of Registrant as Specified in its Charter)
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Delaware
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000-32373
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77-0551214
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(I.R.S.
Employer
Identification
No.)
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9044
Melrose Ave., Los Angeles, California
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90069
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code:
(310)
281-5000
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N/A
(Former
Name or Former Address, if Changed Since Last Report.)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Introduction
As
previously disclosed, on September 14, 2008, Napster, Inc., a Delaware
corporation (the “Company”), entered into an Agreement and Plan of Merger (the
“Merger Agreement”) with Best Buy Co., Inc., a Minnesota corporation (“Parent”),
and Puma Cat Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent (“Purchaser”). Pursuant to the Merger Agreement, Purchaser
offered 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 the Company, 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”). Capitalized terms used and not otherwise defined herein have the
meanings assigned to such terms in the Offer to Purchase.
At
12:00
midnight, Eastern Time, at the end of Friday, October 24, 2008, the Offer
expired. Based on information provided by U.S. Bank National Association, the
depositary for the Offer (the “Depositary”), a total of 39,301,255 Shares,
representing approximately 83.3% of the outstanding Shares (including Shares
tendered through guaranteed delivery procedures), were validly tendered and
not
withdrawn as of the expiration of the Offer. Purchaser accepted for payment
all
validly tendered and not withdrawn Shares in accordance with the terms of the
Offer and advised the Company that it would promptly pay for such
Shares.
At
9:00
a.m., Eastern Time, on Monday, October 27, 2008, Purchaser commenced a
subsequent offering period for the purpose of soliciting all remaining
outstanding and untendered Shares (the “Subsequent Offering Period”). At 12:00
midnight, Eastern Time, at the end of Wednesday, October 29, 2008, the
Subsequent Offering Period expired. Based on information provided by the
Depositary, during the Subsequent Offering Period, an additional 3,932,720
Shares were validly tendered (including Shares delivered with respect to Shares
that had been tendered through guaranteed delivery procedures), 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.
On
Thursday, October 30, 2008, 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, pursuant to which Purchaser acquired 19,224,389
newly-issued Shares at a purchase price per share equal to the Offer Price.
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 Company’s outstanding shares (excluding Shares tendered through
guaranteed delivery procedures and not yet delivered).
Following
the exercise of the Top-Up Option, and pursuant to the Merger Agreement, Parent
caused Purchaser to merge with and into the Company on Thursday, October 30,
2008, without a meeting of the stockholders of the Company, 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 were cancelled,
and Shares held by stockholders, if any, who properly exercise appraisal rights
in accordance with the DGCL) was converted into the right to receive $2.65
per
Share, in cash, without interest. Shares held by stockholders who perfect their
appraisal rights 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.
Item
2.01. Completion of Acquisition or Disposition of Assets.
The
information set forth in the Introduction, above, and Item 5.01, below is
incorporated herein by reference.
Item
3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing.
As
a
result of the Merger, the Company no longer fulfills the numerical listing
requirements of the Nasdaq Global Market (“Nasdaq”). Accordingly, following
completion of the Merger on Thursday, October 30, 2008, the Company notified
Nasdaq and requested that Nasdaq (i) suspend trading in the Company’s common
stock as of the open of business on Friday, October 31, 2008 and (ii) file
with
the Securities and Exchange Commission (the “SEC”) an application on Form 25 to
report that the Common Stock is no longer listed on Nasdaq. As a result, the
Common Stock will no longer be listed on Nasdaq. The Company also intends to
file with the SEC a certification on Form 15 under the Securities Exchange
Act
of 1934, as amended (the “Exchange Act”), requesting that the Common Stock be
deregistered and that the Company’s reporting obligations under Sections 13 and
15(d) of the Exchange Act be suspended.
Item
3.02. Unregistered Sales of Equity Securities.
In
order
to complete the Merger, on Thursday, October 30, 2008, Purchaser exercised
its
Top-Up Option to purchase newly-issued shares of the Company’s common stock, and
accordingly, the Company issued
19,224,389
shares
of common stock to the Purchaser pursuant to Section 5.12 of the Merger
Agreement, at a price per share of $2.65, which resulted in an aggregate
purchase price of approximately $50,944,631 (the “Purchase Price”). The
Purchaser paid the Purchase Price for such shares by delivery of a promissory
note, in form and substance reasonably satisfactory to the Company and in a
principal face amount equal to the aggregate amount of the Purchase Price,
which
promissory note will become due and payable in full with all accrued interest
upon October 30, 2009.
The
issuance of these Shares by the Company was made in a transaction not involving
any public offering pursuant to an exemption from registration under Section
4(2) of the Securities Act of 1933, as amended (the “Securities Act”). The
offering was not a “public offering” as defined in Section 4(2) of the
Securities Act due to the fact that the Purchaser was the only person involved
in the transaction, the size of the offering, and the manner of the offering.
In
addition, the Purchaser had the necessary investment intent as required by
Section 4(2) of the Securities Act since such Shares were issued to facilitate
the Merger pursuant to which the Company will become a wholly-owned subsidiary
of Parent. Based on the above factors, the Company believes that this issuance
of Shares meets the requirements to qualify for exemption under Section 4(2)
of
the Securities Act.
Item
3.03. Material Modification to Rights of Security Holders.
In
connection with the consummation of the Merger on Thursday, October 30, 2008,
each Share issued and outstanding immediately prior to the effective time of
the
Merger (other than Shares held by Purchaser or Parent, treasury Shares, which
were cancelled, and Shares held by stockholders, if any, who properly exercise
appraisal rights in accordance with the DGCL) was converted into the right
to
receive $2.65 per Share, in cash, without interest.
Item
5.01. Changes in Control of Registrant.
At
12:00
midnight, Eastern Time, at the end of Friday, October 24, 2008, the Offer
expired. Based on information provided by U.S. Bank National Association, the
depositary for the Offer (the “Depositary”), a total of 39,301,255 Shares,
representing approximately 83.3% of the outstanding Shares (including Shares
tendered through guaranteed delivery procedures), were validly tendered and
not
withdrawn as of the expiration of the Offer. On October 25, 2008, Purchaser
accepted for payment all validly tendered and not withdrawn Shares in accordance
with the terms of the Offer and advised the Company that it would promptly
pay
for such Shares.
Based
on
the per Share consideration of $2.65 and the number of Shares validly tendered
and accepted for payment (including Shares tendered by notice of guaranteed
delivery) at the expiration of the Offer, as of October 24, 2008, the value
of
the Shares purchased by Purchaser in connection with the Offer was approximately
$104,148,325.75. The funds used by Purchaser to purchase the Shares were from
cash and/or readily-available funds.
The
information contained in the Introduction and Item 3.02, above, is incorporated
herein by reference.
Item
5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
In
connection with the consummation of the Merger and pursuant to the terms of
the
Merger Agreement, each of the directors of the Company resigned from the board
of directors of the Company, effective as of the effective time of the Merger
on
October 30, 2008. Pursuant to the Merger Agreement, Joseph M. Joyce and David
M.
Morrish, the directors of Purchaser became the directors of the Company as
of
the effective time of the Merger. For more information about Messrs. Joyce
and
Morrish, please refer to the Schedule 14D-9 filed by the Company on September
26, 2008.
Item
5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Pursuant
to the Merger Agreement, at the effective time of the Merger on Thursday,
October 30, 2008, the Company’s certificate of incorporation was amended and
restated in its entirety to be identical to the certificate of incorporation
of
Purchaser, as in effect immediately prior to the effective time of the Merger
(except that the name of the surviving corporation set forth therein is
“Napster, Inc.”), and such amended and restated certificate of incorporation
became the certificate of incorporation of the surviving corporation.
Pursuant
to the Merger Agreement, at the effective time of the Merger on Thursday,
October 30, 2008, the Company’s bylaws were amended and restated in their
entirety to be identical to the bylaws of Purchaser, as in effect immediately
prior to the effective time of the Merger (except that the name of the surviving
corporation set forth therein is “Napster, Inc.”), and such amended and restated
bylaws became the bylaws of the surviving corporation.
Copies
of
the amended and restated certificate of incorporation and the third amended
and
restated bylaws of the Company as in effect immediately following the effective
time of the Merger are filed as Exhibits 3.1 and 3.2 to this report and are
incorporated by reference in this Item 5.03.
Item
8.01. Other Events
Closing
of the Merger
On
October 30, 2008, pursuant to the terms of the Merger Agreement, Purchaser
merged with and into the Company, with the Company being the surviving
corporation and a wholly-owned subsidiary of Parent.
Item
9.01
Financial
Statements and Exhibits.
(d)
Exhibits
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3.1
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Amended
and Restated Certificate of Incorporation.
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3.2
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Third
Amended and Restated Bylaws.*
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*
Filed
herewith.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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Napster,
Inc.
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(Registrant)
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By:
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/s/
Aileen Atkins
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Date:
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October
30, 2008
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Aileen
Atkins
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Secretary
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Napster (NASDAQ:NAPS)
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