October 10, 2006
United States Securities and Exchange Commission
Division of Corporation Finance
100 F Street, N.E.
Washington, DC 20549-3628
Attention: Daniel F. Duchovny, Esq.
RE: WIDERTHAN CO., LTD.
SCHEDULES TO-C FILED SEPTEMBER 13 AND 14, 2006; SCHEDULE TO-T
FILED SEPTEMBER 29, 2006, EACH FILED BY REALNETWORKS, INC. AND
RN INTERNATIONAL HOLDINGS B.V.
SEC FILE NO. 005-81250
Dear Mr. Duchovny:
On behalf of RealNetworks, Inc. ("RealNetworks") and RN International
Holdings B.V., an indirect wholly owned subsidiary of RealNetworks ("RN
Holdings" and together with RealNetworks, the "Companies"), we respectfully
submit this letter in response to comments from the staff (the "Staff") of the
Securities and Exchange Commission (the "Commission") received by letter dated
October 5, 2006 (the "Comment Letter"). Our responses to comments pertaining to
WiderThan Co., Ltd. ("WiderThan") are based on information provided to us by
WiderThan. Courtesy copies of Amendment No. 1 to Schedule TO-T are enclosed for
the convenience of the Staff.
In this letter, we have recited comments from the Staff in italicized, bold
type and have followed the comment with the Company's response thereto.
SCHEDULES TO-C
Forward-Looking Statements
1. WE NOTE IN THE JOINT PRESS RELEASE DATED SEPTEMBER 12, AND IN OTHER
PRE-COMMENCEMENT COMMUNICATIONS, THE DISCLAIMER THAT YOU DO NOT UNDERTAKE
ANY OBLIGATION TO UPDATE ANY FORWARD-LOOKING STATEMENTS TO REFLECT ANY
CHANGES IN EVENTS, NEW INFORMATION OR OTHERWISE. THIS DISCLAIMER IS
INCONSISTENT WITH THE REQUIREMENTS OF GENERAL INSTRUCTION F OF SCHEDULE TO
AND YOUR OBLIGATIONS UNDER RULE 14D-6(C) TO AMEND THE SCHEDULE TO REFLECT A
MATERIAL CHANGE IN THE INFORMATION PREVIOUSLY DISCLOSED. PLEASE CONFIRM
THAT THE BIDDERS WILL AVOID USING THIS STATEMENT IN ALL FUTURE
COMMUNICATIONS.
United States Securities and Exchange Commission
October 10, 2006
Page 2
The Companies confirm that they will avoid using the above referenced
statement in all future communications to the extent such communication is
related to the tender offer contemplated in the Schedule TO.
SCHEDULE TO-T
Questions and Answers, page 8
2. WE NOTE THAT THE RESPONSE TO THE LAST QUESTION ON PAGE 14 INDICATES THAT IT
IS A SUMMARY OF "CERTAIN" FEDERAL INCOME TAX CONSEQUENCES OF THE TENDER
OFFER. PLEASE ENSURE THAT YOU DISCUSS ALL SUCH MATERIAL CONSEQUENCES.
The Companies have amended the response to the last question on page 14 of
the Offer to Purchase in response to the Staff's comment.
Introduction, page 17
3. WE NOTE YOUR DISCLOSURE IN OFFER DOCUMENT THAT THE FAIRNESS OPINION FROM
JEFFERIES BROADVIEW WAS PROVIDED "SOLELY" FOR THE INFORMATION OF
WIDERTHAN'S BOARD OF DIRECTORS AND WE NOTE THAT THE OPINION DOES NOT
INCLUDE THIS LANGUAGE. REVISE YOUR DISCLOSURE TO RECONCILE THE DISCLOSURE
AND MAKE CLEAR THAT SECURITY HOLDERS MAY RELY UPON THE MATERIALS WHEN
MAKING THEIR EVALUATION. SEE SECTION II.D.1 OF OUR CURRENT ISSUES OUTLINE
FOR FURTHER GUIDANCE.
The Companies have amended the disclosure on page 18 of the Offer to
Purchase in response to the Staff's comment.
Material Tax Consequences to Security Holders, page 28
4. WHILE YOU MAY RECOMMEND THAT SECURITY HOLDERS CONSULT THEIR INDIVIDUAL TAX
ADVISORS WITH RESPECT TO THEIR PARTICULAR TAX CONSEQUENCES, YOU MAY NOT
"URGE" THEM TO DO SO. PLEASE REVISE HERE AND IN THE QUESTIONS AND ANSWERS
SECTION.
The Companies have amended the tax related disclosure set forth on pages
14, 15, 29, 30 and 31 of the Offer to Purchase in response to the Staff's
comment.
5. DELETE THE REFERENCE ON PAGE 31 TO THIS DISCUSSION BEING FOR "GENERAL
INFORMATION ONLY." SECURITY HOLDERS ARE ENTITLED TO RELY UPON THE
DISCUSSION.
The Companies have amended the first sentence of the first full paragraph
on page 31 of the Offer to Purchase in response to the Staff's comment.
United States Securities and Exchange Commission
October 10, 2006
Page 3
Certain Information Concerning the Offeror and the Parent, page 34
6. WITH RESPECT TO YOUR DISCLOSURE IN THE FOURTH PARAGRAPH ON PAGE 34, PLEASE
TELL US WHY YOU NEED TO QUALIFY YOUR DISCLOSURE "TO THE KNOWLEDGE OF THE
BIDDERS." WHAT PREVENTS YOU FROM KNOWING AND DISCLOSING THIS INFORMATION?
PLEASE EXPLAIN OR DELETE THE QUALIFIER.
One of the entities listed on Annex I, ING Management (Netherland), B.V.
("ING Trust"), is an independent business unit of ING Group, a financial
services corporation organized under the laws of the Netherlands. ING Trust
provides domiciliary, management and administrative services necessary to
ensure that RN International Holdings complies with the legal requirements
to maintain a company in the Netherlands. ING Trust has informed RN
International Holdings that ING Trust is not engaged in any of the
relationships, affiliations, activities and does not have any of the
ownership interests set forth in clauses (i) through (v) of the fourth
paragraph of page 34. However, since RN International Holdings does not
have independent knowledge with respect to such relationships, affiliates,
activities or ownership interests, the Companies have indicated that such
disclosure is being made to their knowledge.
Background of Offer, page 35
7. PLEASE EXPAND YOUR DISCLOSURE OF THE EVENTS THAT LED TO THE INCREASE OF
YOUR OFFER ON SEPTEMBER 9 AND 10. DID THE TARGET COMPANY ASK FOR A HIGHER
OFFER?
The Companies have expanded our disclosure on page 37 of the Offer to
Purchase of the events that led to the increase in our offer on September 9
and 10 in response to the Staff's comment.
Annex I
8. PLEASE PROVIDE THE INFORMATION REQUIRED BY GENERAL INSTRUCTION C TO
SCHEDULE TO WITH RESPECT TO ING MANAGEMENT (NETHERLAND), B.V.
We have provided additional information in Annex I of the Offer to Purchase
required by General Instruction C to Schedule TO with respect to ING
Management (Netherland), B.V. in response to the Staff's comment.
United States Securities and Exchange Commission
October 10, 2006
Page 4
Closing Comments
Additionally, at the Staff's request, this letter constitutes a written
statement from the Companies acknowledgement that:
o They are responsible for the adequacy and the accuracy of the
disclosure in the filing;
o Staff comments or changes to disclosure in response to Staff comments
do not foreclose the Commission from taking any action with respect to
the filing; and
o They may not assert Staff comments as a defense in any proceeding
initiated by the Commission or any person under the federal securities
laws of the United States.
Please do not hesitate to telephone me at (206) 883-2501 with any questions
regarding our proposed responses to your comments.
Sincerely,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Patrick J. Schultheis
Patrick J. Schultheis
cc: Robert Kimball, RealNetworks, Inc.
Tracy Daw, RealNetworks, Inc.
Michael Ringler, Esq., Wilson Sonsini Goodrich & Rosati, P.C.