UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Amendment No. 1
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
SKULLCANDY, INC.
(Name of Subject Company (Issuer))
POWDER MERGER SUB, INC.
(Offeror)
A Wholly-Owned Subsidiary of
INCIPIO, LLC
(Parent of Offeror)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
COMMON STOCK, $0.0001 PAR VALUE | 83083J104 | |
(Title of Class of Securities) | (CUSIP Number of Class of Securities) |
Scott Akamine
General Counsel and Secretary
Incipio, LLC
6001 Oak Canyon
Irvine, California 92618
(800) 733-0088
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copies to:
Derek D. Dundas
Rutan & Tucker, LLP
611 Anton Boulevard, 14th Floor
Costa Mesa, California 92626
(714) 641-5100
CALCULATION OF FILING FEE
Transaction Valuation(1) | Amount of Filing Fee(2) | |
$190,365,646.75 | $19,169.82(3) | |
* |
(1) | Estimated solely for purposes of calculating the filing fee pursuant to Rule 0-11(d) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Transaction Valuation was calculated on the basis of (a) 28,712,166 Shares issued and outstanding and up to 2,614,420 Shares issuable upon the exercise of outstanding options and the 1,530,694 Shares outstanding with respect to restricted stock unit awards and 249,789 Shares Outstanding with respect to performance share units multiplied by (b) the offer price of $5.75 per Share. The foregoing share figures have been provided by the issuer to the offerors and are as of July 28, 2016, the most recent practicable date. |
(2) | The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934 and Fee Rate Advisory #1 for fiscal year 2016, issued August 27, 2015, by multiplying the transaction value by ..0001007. |
(3) | Previously paid. |
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: $19,169.82 | Filing Party: Powder Merger Sub, Inc. and Incipio, LLC | |
Form of Registration No.: Schedule TO | Date Filed: July 6, 2016 |
¨ | 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. ¨
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. 1 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO initially filed with the Securities and Exchange Commission on July 6, 2016 (together with any amendments and supplements thereto, the “Schedule TO”) by Powder Merger Sub, Inc., a Delaware corporation (“Purchaser”) and direct wholly-owned subsidiary of Incipio, LLC, a Delaware limited liability company (“Parent”), and Parent, relating to the offer by Purchaser to purchase all issued and outstanding shares of common stock, par value $0.0001 per share (the “Shares”), of Skullcandy, Inc., a Delaware corporation (“Skullcandy”), other than any Shares that are owned immediately prior to the commencement of the Offer by Incipio, Purchaser, Skullcandy or any of their wholly-owned subsidiaries, at a price of $5.75 per Share, net to the seller in cash, without interest thereon and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated July 6, 2016 (the “Offer to Purchase”), which is annexed to and filed with the Schedule TO as Exhibit (a)(1)(A), and in the related Letter of Transmittal, which is annexed to and filed with this Schedule TO as Exhibit (a)(1)(B), which, together with any amendments or supplements thereto, collectively constitute the “Offer.” Initially capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Offer to Purchase.
Item 11. | Additional Information |
The Offer to Purchase and Item 11 of the Schedule TO are hereby amended and supplemented as follows:
The information set forth in Section 15 — “Certain Legal Matters — Antitrust Compliance” of the Offer to Purchase is hereby amended and supplemented by inserting the following paragraph as the fourth paragraph thereunder:
“On July 15, 2016, the FTC granted early termination of the waiting period applicable to the Offer under the HSR Act. Accordingly, the condition of the Offer relating to the expiration or termination of the waiting period under the HSR Act has been satisfied.”
Item 12. | Exhibits. |
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:
(a)(5)(D) Press Release issued by Incipio on July 19, 2016
SIGNATURE
After due 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.
Dated: July 19, 2016
INCIPIO, LLC | ||
By: | /s/ Andy Fathollahi | |
Andy Fathollahi Chairman and Chief Executive Officer | ||
POWDER MERGER SUB, INC. | ||
By: | /s/ Andy Fathollahi | |
Andy Fathollahi President |
EXHIBIT INDEX
(a)(1)(A) | Offer to Purchase, dated June 30, 2016(1) | |
(a)(1)(B) | Form of Letter of Transmittal (including Internal Revenue Service Form W-9, including instructions for completing the form)(2) | |
(a)(1)(C) | Form of Notice of Guaranteed Delivery(3) | |
(a)(1)(D) | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees(4) | |
(a)(1)(E) | Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees(5) | |
(a)(5)(A) | Joint Press Release issued by Incipio and Skullcandy on June 24, 2016(6) | |
(a)(5)(B) | Summary Newspaper Advertisement as published in The Wall Street Journal on June 30, 2016(7) | |
(a)(5)(C) | Press Release issued by Incipio on July 6, 2016(8) | |
(a)(5)(D) | Press Release issued by Incipio on July 19, 2016* | |
(b)(1) | Commitment Letter, dated as of June 23, 2016, by and among Incipio, Monroe Capital LLC and Wells Fargo Bank, National Association(9) | |
(b)(2) | Commitment Letter, dated as of June 23, 2016, by and between Incipio and Andy Fathollahi(10) | |
(d)(1) | Agreement and Plan of Merger, dated as of June 23, 2016, by and among Purchaser, Incipio and Skullcandy(11) | |
(d)(2) | Confidentiality Letter Agreement, dated as of April 6, 2016 by and between Incipio and Skullcandy(12) | |
(g) | Not applicable | |
(h) | Not applicable |
* | Filed herewith. |
(1) | Incorporated by reference to Exhibit 99.1(a)(1)(A) to the Schedule TO filed by Incipio on July 6, 2016 (File Number: 161752532) |
(2) | Incorporated by reference to Exhibit 99.1(a)(1)(B) to the Schedule TO filed by Incipio on July 6, 2016 (File Number: 161752532) |
(3) | Incorporated by reference to Exhibit 99.1(a)(1)(C) to the Schedule TO filed by Incipio on July 6, 2016 (File Number: 161752532) |
(4) | Incorporated by reference to Exhibit 99.1(a)(1)(D) to the Schedule TO filed by Incipio on July 6, 2016 (File Number: 161752532) |
(5) | Incorporated by reference to Exhibit 99.1(a)(1)(E) to the Schedule TO filed by Incipio on July 6, 2016 (File Number: 161752532) |
(6) | Incorporated by reference to Exhibit 99.1 to the Form 8-K filed by Skullcandy on June 24, 2016 (File Number: 161729989) |
(7) | Incorporated by reference to Exhibit 99.1(a)(5)(B) to the Schedule TO filed by Incipio on July 6, 2016 (File Number: 161752532) |
(8) | Incorporated by reference to Exhibit 99.1(a)(5)(C) to the Schedule TO filed by Incipio on July 6, 2016 (File Number: 161752532) |
(9) | Incorporated by reference to Exhibit 99.1(b)(1) to the Schedule TO filed by Incipio on July 6, 2016 (File Number: 161752532) |
(10) | Incorporated by reference to Exhibit 99.1(b)(2) to the Schedule TO filed by Incipio on July 6, 2016 (File Number: 161752532) |
(11) | Incorporated by reference to Exhibit 2.1 to the Form 8-K filed by Skullcandy on June 24, 2016 (File Number: 161729989) |
(12) | Incorporated by reference to Exhibit 99.1(d)(2) to the Schedule TO filed by Incipio on July 6, 2016 (File Number: 161752532) |