UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 1)
MILLENNIAL MEDIA, INC.
(Name of Subject Company)
MARS ACQUISITION SUB, INC.
(Offeror)
A WHOLLY OWNED DIRECT SUBSIDIARY OF
AOL INC.
(Parent of Offeror)
(Names of Filing Persons)
Common Stock, $0.001 Par Value
(Title of Class of Securities)
60040N105
(CUSIP Number of Class of Securities)
Julie M. Jacobs
General Counsel
22000 AOL Way
Dulles, VA 20166
(703) 265-1000
(Name, address and telephone number of person authorized to receive notices and communications on behalf of filing persons)
With a copy to:
David E. Shapiro
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
(212) 403-1000
CALCULATION OF FILING FEE
| Transaction valuation* | Amount of filing fee** | |
| $280,713,492.50 | $32,618.91 |
| * | Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated by adding the sum of (i) 142,731,031 shares of common stock, par value $0.001 per share (the “Shares”), of Millennial Media, Inc. (“Millennial Media”) outstanding multiplied by the offer price of $1.75 per share; (ii) 7,426,395 Shares reserved for issuance upon settlement of outstanding Millennial Media restricted stock unit awards multiplied by the offer price of $1.75 per Share; and (iii) 10,250,284 Shares issuable pursuant to outstanding options with an exercise price less than the offer price of $1.75 per share, multiplied by the offer price of $1.75 per share minus the exercise price for each such option. The calculation of the filing fee is based on information provided by Millennial Media as of September 15, 2015. |
| ** | The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for Fiscal Year 2015, issued August 29, 2014, by multiplying the transaction valuation by 0.0001162. |
| x | 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: $32,618.91 | Filing Party: AOL Inc. and Mars Acquisition Sub, Inc. | |
| Form or Registration No.: Schedule TO | Date Filed: September 18, 2015 |
| ¨ | 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:
| x | third-party tender offer subject to Rule 14d-1. |
| ¨ | issuer tender offer subject to Rule 13e-4. |
| ¨ | going-private transaction subject to Rule 13e-3. |
| ¨ | 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: ¨
This Amendment No. 1 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed by AOL Inc., a Delaware corporation (which we refer to as “Parent”), and Mars Acquisition Sub, Inc., a Delaware corporation (which we refer to as “Purchaser”) and a wholly owned direct subsidiary of Parent, with the Securities and Exchange Commission on September 18, 2015 (together with any subsequent amendments and supplements thereto, the “Schedule TO”). The Schedule TO relates to the tender offer by Purchaser to purchase all of the outstanding shares of common stock, par value $0.001 per share (the “Shares”), of Millennial Media, Inc., a Delaware corporation (which we refer to as “Millennial Media”), at a purchase price of $1.75 per Share, net to the seller in cash, without interest thereon and less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated September 18, 2015 (the “Offer to Purchase”), a copy of which is attached as Exhibit (a)(1)(A) to the Schedule TO, and in the related letter of transmittal (the “Letter of Transmittal”), a copy of which is attached as Exhibit (a)(1)(B) to the Schedule TO, which together with other related materials, as each may be amended or supplemented from time to time, collectively constitute the “Offer.”
All the information set forth in the Offer to Purchase is incorporated by reference herein in response to Items 1 through 9 and Item 11 of this Schedule TO, and is supplemented by the information specifically provided in this Schedule TO.
This Amendment is being filed to amend and supplement Items 11 and 12 as reflected below.
| Item 11. | Additional Information. |
Item 11 of the Schedule TO is hereby amended and supplemented as follows:
(a) The subsection entitled “Legal Proceedings” of Section 16 — “Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase is hereby amended and supplemented to add the paragraph set forth below immediately following the paragraph under the caption “Legal Proceedings”:
“On September 24, 2015, plaintiff in theNguyen action filed an amended complaint against Millennial Media’s board of directors, Parent and Purchaser. The amended complaint adds new factual allegations, including allegations that Millennial Media’s board of directors breached their fiduciary duties to Millennial Media’s stockholders by allegedly omitting material information from Millennial Media’s Solicitation/Recommendation Statement on Schedule 14D-9. On September 28, 2015, plaintiff moved for a preliminary injunction to prevent the consummation of the transaction.”
(b) The subsection entitled “Antitrust Compliance” of Section 16 —“Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase is hereby amended and supplemented to add the sentence set forth below immediately following the last sentence in the first paragraph under the caption “Antitrust Compliance”:
“On September 29, 2015, the FTC granted early termination of the HSR Act waiting period applicable to the Offer.”
| Item 12. | Exhibits. |
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:
Exhibit No. | Description | |
| (a)(5)(F) | Amended Complaint filed by An Nguyen in the Delaware Court of Chancery, dated September 24, 2015. |
SIGNATURES
After due inquiry and to the best of their knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: September 30, 2015
MARS ACQUISITION SUB, INC. | ||
By: | /s/ Julie Jacobs | |
Name: Julie Jacobs Title: VP, Secretary | ||
| AOL INC. | ||
By: | /s/ Julie Jacobs | |
Name: Julie Jacobs Title: EVP, Secretary | ||
EXHIBIT INDEX
Exhibit No. | Description | |
| (a)(1)(A) | Offer to Purchase, dated September 18, 2015.* | |
| (a)(1)(B) | Form of Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number onForm W-9).* | |
| (a)(1)(C) | Form of Notice of Guaranteed Delivery.* | |
| (a)(1)(D) | Form of Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(E) | Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(F) | Press Release issued by AOL Inc., dated September 3, 2015 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by AOL Inc. with the Securities and Exchange Commission on September 3, 2015). | |
| (a)(1)(G) | Summary Advertisement as published inThe Wall Street Journal on September 18, 2015.* | |
| (a)(5)(A) | Complaint filed by Paul Parshall in the Delaware Court of Chancery, dated September 9, 2015.* | |
| (a)(5)(B) | Complaint filed by David Desjardins in the Delaware Court of Chancery, dated September 10, 2015.* | |
| (a)(5)(C) | Complaint filed by Kien Chen in the Delaware Court of Chancery, dated September 10, 2015.* | |
| (a)(5)(D) | Complaint filed by Joseph Wagner in the Delaware Court of Chancery, dated September 15, 2015.* | |
| (a)(5)(E) | Complaint filed by An Nguyen in the Delaware Court of Chancery, dated September 16, 2015.* | |
| (a)(5)(F) | Amended Complaint filed by An Nguyen in the Delaware Court of Chancery, dated September 24, 2015. | |
| (d)(1) | Agreement and Plan of Merger, dated as of September 3, 2015, by and among AOL Inc., Mars Acquisition Sub, Inc. and Millennial Media, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Millennial Media, Inc. with the Securities and Exchange Commission on September 3, 2015). | |
| (d)(2) | Confidential Non-Disclosure Agreement, effective January 16, 2015, by and between AOL Inc. and Millennial Media, Inc.* | |
| (d)(3) | Joinder Agreement to Confidential Non-Disclosure Agreement, dated May 18, 2015, by and between AOL Inc., Millennial Media, Inc. and Verizon Communications Inc.* | |
| (d)(4) | Letter Agreement, dated August 26, 2015, by and between AOL Inc., Millennial Media, Inc. and Verizon Communications Inc.* | |
Exhibit No. | Description | |
| (d)(5) | Exclusivity Agreement, dated as of June 15, 2015, by and between AOL Inc. and Millennial Media, Inc.* | |
| (d)(6) | Exclusivity Agreement Amendment No. 1, dated as of July 21, 2015, by and between AOL Inc. and Millennial Media, Inc.* | |
| (d)(7) | Employment Offer Letter, dated July 13, 2015, as revised August 6, 2015, between AOL Inc. and Ernie Cormier.* | |
| (d)(8) | Employment Offer Letter and Retention Bonus Letter, dated July 9, 2015, as revised August 11, 2015, between AOL Inc. and Matthew Gillis.* | |
| (g) | None. | |
| (h) | None. | |
| * | Previously filed. |