sctovtza
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Amendment No. 3)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) or
13(e)(1)
OF THE SECURITIES ACT OF 1934
WIDERTHAN CO., LTD.
(Name of Subject Company (Issuer))
REALNETWORKS, INC.
RN INTERNATIONAL HOLDINGS B.V.
(Names of Filing Persons (Offerors))
(1) Common Shares, par value KRW 500 per share
(2) American Depositary Shares, as evidenced by American
Depositary Receipts, each representing one Common Share
(Title of Class of Securities)
The Common Shares, which are not traded on U.S. markets,
have not been assigned a CUSIP number.
The CUSIP number for the related American Depositary Shares
is 967593104.
(CUSIP Number of Class of Securities)
Robert Kimball, Senior Vice President, Legal and Business
Affairs, General Counsel and Corporate Secretary
RealNetworks, Inc.
2601 Elliott Avenue, #1000
Seattle, Washington 98121
(206) 674-2700
(Name, address, and telephone numbers of person authorized to
receive notices and communications on behalf of filing
persons)
Copies of all Communications should be sent to:
Patrick J. Schultheis, Esq.
Michael S. Ringler, Esq.
Wilson Sonsini Goodrich & Rosati Professional
Corporation
701 Fifth Avenue, Suite 5100
Seattle, WA 98104-7036
(206) 883-2500
CALCULATION OF FILING FEE
| |
|
|
|
| |
|
|
|
| |
|
|
|
| Transaction Valuation |
|
|
Amount of Filing Fee |
| |
|
|
|
|
$337,713,033(1)
|
|
|
$36,135(2) |
| |
|
|
|
| |
|
|
|
|
|
| (1) |
Estimated for purposes of calculating the filing fee only. This
amount is based upon an estimate of the maximum number of shares
to be purchased pursuant to the tender offer at the tender offer
price of $17.05 per WiderThan Common Share and per
WiderThan American Depositary Share. |
| |
| (2) |
The amount of the filing fee calculated in accordance with the
Securities Exchange Act of 1934, as amended, equals $107 for
each $1,000,000 of value. |
|
|
| þ |
Check the box if any part of the fee is offset as provided by
Rule 0-11(a)(2) and identify the filing with which the
offsetting fee was previously paid. Identify the previous filing
by registration statement number, or the Form or Schedule and
the date of its filing. |
| |
|
|
|
|
|
|
|
Amount Previously Paid:
|
|
$36,135 |
|
Filing Party: |
|
RealNetworks, Inc. and RN International Holdings B.V. |
|
Form of Registration No.:
|
|
Schedule TO |
|
Date Filed: |
|
September 29, 2006 |
|
|
| o |
Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions
to which the statement relates:
|
|
|
| |
þ |
third-party tender offer subject to
Rule 14d-1. |
| |
o |
issuer tender offer subject to
Rule 13e-4. |
| |
o |
going-private transaction subject to
Rule 13e-3. |
| |
o |
amendment to Schedule 13D under
Rule 13d-2. |
Check the following box if the filing is a final amendment
reporting the results of the tender
offer: o
This Amendment No. 3 to the Tender Offer Statement on
Schedule TO (this “Amendment”), filed with the
Securities and Exchange Commission (the “SEC”) on
October 26, 2006, amends and supplements the Tender Offer
Statement on Schedule TO filed with the SEC on
September 29, 2006 (the “Initial Statement”) by
(i) RN International Holdings B.V., a private company with
limited liability organized under the laws of the Netherlands
(the “Offeror”) and an indirect wholly-owned
subsidiary of RealNetworks, Inc., a Washington corporation (the
“Parent”) and (ii) the Parent. This Amendment
relates to the offer by the Offeror to purchase all outstanding
common shares, par value KRW500 per share (the “Common
Shares”) and all outstanding American Depositary Shares,
each representing one Common Share and evidenced by an American
Depositary Receipt issued by JP Morgan Chase Bank, N.A. (the
“ADSs”) of WiderThan Co., Ltd, a company with limited
liability organized under the laws of the Republic of Korea (the
“Company”), at a purchase price of $17.05 per
Common Share and per ADS (or any higher price per Common Share
and per ADS that is paid in the tender offer the “Offer
Price”), net to the seller in cash without interest
thereon, less any required withholding taxes, upon the terms and
subject to the conditions set forth in the Offer to Purchase
dated September 29, 2006 (which, together with any amendments
and supplements thereto, collectively constitute the “Offer
to Purchase”) and in the related Letter of Transmittal
(which, together with any amendments or supplements thereto,
collectively constitute the “Offer”). Following the
expiration of the Offer (as the same may be extended pursuant to
Article I of the Combination Agreement), the portion of the
Offer consideration to be paid in exchange for ADSs will be
delivered to Mellon Investor Services LLC (the “ADS
Depositary”) and the portion of the Offer consideration to
be paid in exchange for Common Shares will be delivered to
Samsung Securities Co., Ltd. (the “Common Share
Depositary”). Holders of ADSs will receive the Offer Price
in U.S. dollars, net to the seller in cash without interest
thereon, less any required withholding taxes. Holders of Common
Shares will receive the Korean Won equivalent of the Offer
Price, calculated by converting the Offer Price into Korean Won
using the conversion rate available to the Offeror on the
business day on which the Offer consideration is transferred to
the Common Share Depositary, net to the seller in cash without
interest thereon, less any required withholding taxes.
Capitalized terms used and not defined herein shall have the
meanings assigned to such terms in the Offer to Purchase.
The Offer is made pursuant to the Combination Agreement, dated
September 12, 2006, by and among the Parent, the Offeror
and the Company.
The information in the Offer to Purchase and the related Letter
of Transmittal is incorporated in this Amendment by reference to
all of the applicable items in the Initial Statement, except
that such information is hereby amended and supplemented to the
extent specifically provided herein.
Item 4. Terms of the Transaction
The last sentence of the subsection entitled “Antitrust Matters — South Korea” on page 52 of the
Offer to Purchase is hereby amended and restated as follows:
“The Offeror filed the business combination report with the KFTC on September 25, 2006, and on
October 25, 2006, the KFTC notified the Offeror that the proposed transaction will not be in
violation of Article 7(1) of the Monopoly Regulation and Fair Trade Law.”
| |
|
|
|
|
| Exhibit |
|
|
| Number |
|
Description |
| |
|
|
| |
(a)(1)(i) |
|
|
Offer to Purchase, dated September 29, 2006.* |
| |
| |
(a)(1)(ii) |
|
|
Form of Letter of Transmittal.* |
| |
| |
(a)(1)(iii) |
|
|
Form of Notice of Guaranteed Delivery.* |
| |
| |
(a)(1)(iv) |
|
|
Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.* |
| |
| |
(a)(1)(v) |
|
|
Form of Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees.* |
| |
| |
(a)(1)(vi) |
|
|
Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.* |
| |
| |
(a)(1)(vii) |
|
|
Instructions for Completing Form W-8BEN.* |
| |
| |
(a)(1)(viii) |
|
|
Summary Advertisement as published on September 29, 2006 in The
Wall Street Journal.* |
| |
| |
(a)(5) |
|
|
Joint Press Release issued by the Parent and the Company on
September 12, 2006.* |
| |
| |
(a)(5)(ii) |
|
|
Press Release issued by the Parent on October 26, 2006. |
| |
| |
(b) |
|
|
None. |
| |
| |
(d)(1) |
|
|
Combination Agreement, dated as of September 12, 2006, by
and among the Parent, the Offeror and the Company.* |
| |
| |
(d)(2) |
|
|
Form of Stockholder Tender and Voting Agreement entered into
between the Parent and each of Excelsior VI-A C.V., Excelsior
VI-B C.V., Excelsior VI, L.P., GAP Coinvestment
Partners II, L.P., General Atlantic Partners 64, L.P.,
i-Hatch Advisors, L.P., i-Hatch Ventures, L.P., i-Hatch WTC
Holdings, LLC, Nokia Venture Partners II, L.P., NVP II
Affiliates Fund, L.P., Patricof Private Investment
Club III, L.P., SAIF Capital Limited and SK Telecom Co.,
Ltd. on September 12, 2006.* |
| |
| |
(g) |
|
|
None. |
| |
| |
(h) |
|
|
None. |
After due inquiry and to the best of its knowledge and belief,
each of the undersigned certifies that the information set forth
in this statement is true, complete and correct.
|
|
| |
RN INTERNATIONAL HOLDINGS B.V. |
|
|
|
| |
By: |
/s/ Michael R. Eggers |
|
|
| |
|
| |
Name: Michael R. Eggers |
| |
| |
REALNETWORKS, INC. |
Dated: October 26, 2006
EXHIBIT INDEX
| |
|
|
|
|
| Exhibit |
|
|
| Number |
|
Description |
| |
|
|
| |
(a)(1)(i) |
|
|
Offer to Purchase, dated September 29, 2006.* |
| |
| |
(a)(1)(ii) |
|
|
Form of Letter of Transmittal.* |
| |
| |
(a)(1)(iii) |
|
|
Form of Notice of Guaranteed Delivery.* |
| |
| |
(a)(1)(iv) |
|
|
Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.* |
| |
| |
(a)(1)(v) |
|
|
Form of Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees.* |
| |
| |
(a)(1)(vi) |
|
|
Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.* |
| |
| |
(a)(1)(vii) |
|
|
Instructions for Completing Form W-8BEN.* |
| |
| |
(a)(1)(viii) |
|
|
Summary Advertisement as published on September 29, 2006 in The
Wall Street Journal.* |
| |
| |
(a)(5) |
|
|
Joint Press Release issued by the Parent and the Company on
September 12, 2006.* |
| |
| |
(a)(5)(ii) |
|
|
Press Release issued by the Parent on October 26, 2006. |
| |
| |
(b) |
|
|
None. |
| |
| |
(d)(1) |
|
|
Combination Agreement, dated as of September 12, 2006, by
and among the Parent, the Offeror and the Company.* |
| |
| |
(d)(2) |
|
|
Form of Stockholder Tender and Voting Agreement entered into
between the Parent and each of Excelsior VI-A C.V., Excelsior
VI-B C.V., Excelsior VI, L.P., GAP Coinvestment
Partners II, L.P., General Atlantic Partners 64, L.P.,
i-Hatch Advisors, L.P., i-Hatch Ventures, L.P., i-Hatch WTC
Holdings, LLC, Nokia Venture Partners II, L.P., NVP II
Affiliates Fund, L.P., Patricof Private Investment
Club III, L.P., SAIF Capital Limited and SK Telecom Co.,
Ltd. on September 12, 2006.* |
| |
| |
(g) |
|
|
None. |
| |
| |
(h) |
|
|
None. |