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. 4)
ZIPREALTY, INC.
(Name of Subject Company — Issuer)
HONEYCOMB ACQUISITION, INC.
REALOGY GROUP LLC
(Names of Filing Persons — Offerors)
Common Stock, par value $0.001 per share
(Title of Class of Securities)
98974V107
(CUSIP Number of Class of Securities)
Marilyn J. Wasser
Executive Vice President and
General Counsel
Realogy Group LLC
175 Park Avenue
Madison, NJ 07940
(973) 407-5370
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Filing Persons)
Copy to:
Barbara L. Becker
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
(212) 351-4035
CALCULATION OF FILING FEE
Transaction Valuation* | Amount of Filing Fee** | |
$166,174,086.15 | $21,403.22 | |
* | Estimated solely for purposes of calculating the filing fee. The transaction value was determined by adding (1) 21,832,783 shares of common stock of ZipRealty, Inc. (“ZipRealty”), par value 0.001 per share (the “Shares”), multiplied by the offer price of $6.75 per Share and (ii) 5,095,610 Shares issuable pursuant to outstanding options with an exercise price less than the offer price of $6.75 per Share, multiplied by $3.69, which is the offer price of $6.75 per Share minus the weighted average exercise price for such options of $3.06 per Share. The calculation of the transaction value is based on information provided by ZipRealty as of July 14, 2014. |
** | The filing fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for Fiscal Year 2014, issued August 30, 2013, by multiplying the transaction valuation by 0.0001288. |
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: Form or Registration No.: Filing Party: Date Filed: | $21,403.22 Schedule TO Realogy Group LLC and Honeycomb Acquisition, Inc. July 16, 2014 | |
¨ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes to designate any transactions to which this statement relates:
x | third party tender offer subject to Rule 14d-l |
¨ | 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. ¨
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
¨ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
¨ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
This Amendment No. 4 amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on July 16, 2014 (together with any amendments and supplements thereto, the “Schedule TO”) and relates to the offer by Honeycomb Acquisition, Inc. (“Purchaser”), a Delaware corporation and a wholly-owned indirect subsidiary of Realogy Group LLC (“Realogy”), to purchase all outstanding shares of common stock, par value $0.001 per share (individually, a “Share” and collectively, the “Shares”), of ZipRealty, Inc. (“ZipRealty”), for $6.75 per Share, net to the seller in cash, without interest and less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated July 16, 2014 (together with any amendments and supplements thereto, the “Offer to Purchase”), and the related Letter of Transmittal, copies of which are attached as Exhibits (a)(1)(A) and (a)(1)(B), respectively, to the Schedule TO. Capitalized terms used and not otherwise defined in this Amendment No. 4 shall have the meanings ascribed to such terms in the Offer to Purchase.
This Amendment No. 4 is being filed to amend and supplement Item 11 as reflected below.
Item 11. | Additional Information. |
Item 11 of the Schedule TO is hereby amended and supplemented as set forth below:
Section 16 of the Offer to Purchase titled “Certain Legal Matters; Regulatory Approvals” is hereby amended and supplemented by adding the following after the last sentence thereof:
“On August 11, 2014, ZipRealty, Realogy Holdings Corp., Realogy, Purchaser and members of the ZipRealty Board (collectively, the “Defendants”) entered into a stipulation of settlement with the plaintiffs and their counsel in the litigation captionedFundamental Partners et al. v. ZipRealty, Inc. et al. Realogy and Purchaser believe that the lawsuit is without merit; however, to avoid the risk that the litigation may delay or otherwise adversely affect the completion of the Offer and the Merger and to minimize the expense of defending such action, the Defendants have agreed to settle the lawsuit pursuant to the terms of the stipulation of settlement.
The stipulation of settlement is subject to customary conditions, including approval by the Superior Court of the State of California following a hearing on the fairness, reasonableness and adequacy of the settlement. If the settlement is finally approved by the Court, it will resolve and release all claims in all actions that were or could have been brought challenging any aspect of the Offer, the Merger, the Merger Agreement, and any disclosure made in connection therewith, among other claims. In addition, in connection with the settlement, the parties contemplate that plaintiffs’ counsel will file a petition in the Superior Court of the State of California for an award of attorneys’ fees and expenses that Defendants and/or their insurers will cause to be paid. There can be no assurance that the Superior Court of the State of California will approve the settlement. If the Court does not grant final approval, the proposed settlement as contemplated by the stipulation of settlement may be terminated.”
SIGNATURES
After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Honeycomb Acquisition, Inc. | ||||
By: | /s/ Anthony E. Hull | |||
Name: | Anthony E. Hull | |||
Title: | Executive Vice President and Treasurer | |||
Realogy Group LLC | ||||
By: | /s/ Anthony E. Hull | |||
Name: | Anthony E. Hull | |||
Title: | Executive Vice President, Chief Financial Officer and Treasurer |
Date: August 12, 2014
EXHIBIT INDEX
Exhibit No. | Description | |
(a)(1)(A) | Offer to Purchase, dated July 16, 2014* | |
(a)(1)(B) | Letter of Transmittal* | |
(a)(1)(C) | Notice of Guaranteed Delivery* | |
(a)(1)(D) | Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees* | |
(a)(1)(E) | Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees* | |
(a)(1)(F) | Summary Advertisement as published in the New York Times on July 16, 2014* | |
(a)(2) | Not applicable | |
(a)(3) | Not applicable | |
(a)(4) | Not applicable | |
(a)(5)(A) | Joint Press Release issued by Realogy Holdings Corp. and ZipRealty, Inc., dated as of July 15, 2014 (incorporated by reference from Exhibit 99.2 to Realogy Holdings Corp. and Realogy Group LLC’s Current Report on Form 8-K filed on July 15, 2014)* | |
(a)(5)(B) | Investor Presentation of July 15, 2014 Realogy Investor call (incorporated by reference from Exhibit 99.1 to Realogy Group LLC’s Schedule TO-C filed on July 15, 2014)* | |
(a)(5)(C) | Investor Script of July 15, 2014 Realogy Investor call (incorporated by reference from Exhibit 99.2 to Realogy Group LLC’s Schedule TO-C filed on July 15, 2014)* | |
(b) | Not applicable | |
(d)(1) | Agreement and Plan of Merger, dated as of July 15, 2014, by and among Realogy Group LLC, Honeycomb Acquisition, Inc. and ZipRealty, Inc. (incorporated by reference from Exhibit 2.1 to Realogy Holdings Corp. and Realogy Group LLC’s Current Report on Form 8-K filed on July 15, 2014)* | |
(d)(2) | Tender and Voting Agreement, dated as of July 15, 2014, by and among Realogy Group LLC, Honeycomb Acquisition, Inc., ZipRealty, Inc. and certain stockholders of ZipRealty, Inc. (incorporated by reference from Exhibit 99.1 to Realogy Holdings Corp. and Realogy Group LLC’s Current Report on Form 8-K filed on July 15, 2014)* | |
(g) | Not applicable | |
(h) | Not applicable |
* | Previously filed. |