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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 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
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| Transaction Valuation |
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Amount of Filing Fee |
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$337,713,033(1)
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$36,135(2) |
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| (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. |
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| (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. |
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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. |
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Amount Previously Paid:
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None |
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Filing Party: |
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N/A |
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Form of Registration No.:
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N/A |
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Date Filed: |
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N/A |
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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:
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third-party tender offer subject to
Rule 14d-1. |
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issuer tender offer subject to
Rule 13e-4. |
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going-private transaction subject to
Rule 13e-3. |
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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 Tender Offer Statement on Schedule TO (which, together
with any amendments and supplements hereto, collectively
constitute this “Schedule TO”) is filed 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
Schedule TO 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, copies of which are attached as
Exhibits (a)(1)(i) and (a)(1)(ii) (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.
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| Item 1. |
Summary Term Sheet. |
The information set forth in the “Summary Term Sheet”
and the “Questions and Answers” of the Offer to
Purchase is incorporated herein by reference.
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| Item 2. |
Subject Company Information. |
(a) The name of the subject company and the issuer of the
securities to which this Schedule TO relates is WiderThan
Co., Ltd (the “Company”). The Company operates as a
company with limited liability organized under laws of the
Republic of Korea. The Company was incorporated on June 16,
2000. The address and telephone number of the Company’s
registered office and principal place of business is: 17F, K1
REIT Building, 463 Chungjeong-ro-3-ga, Seodaemun-gu, Seoul
120-709, Korea, telephone number:
822-2014-5114/5115. The
Company’s authorized representative in the United States is
its wholly owned subsidiary, WiderThan Americas, Inc., 519
Eighth Ave.
2nd Floor,
New York, New York 10018, telephone number:
1 (212) 391-6668.
(b) This Schedule TO relates to the outstanding Common
Shares and ADSs of the Company. According to the Company, as of
September 12, 2006 there were 19,807,216 Common Shares
(including Common Shares underlying outstanding ADSs). As of
September 8, 2006 there were 11,667,019 ADSs outstanding,
each representing one Common Share. The information set forth in
the “Introduction” of the Offer to Purchase is
incorporated herein by reference.
(c) The information set forth in Section 6 of the
Offer to Purchase entitled “Price Range of ADSs; Dividends
on the Common Shares and ADSs” is incorporated herein by
reference.
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| Item 3. |
Identity and Background of Filing Person. |
This Schedule TO is filed by the Offeror and the Parent.
The information set forth in Section 9 of the Offer to
Purchase entitled “Certain Information Concerning the
Offeror and the Parent” and Annex I to the Offer to
Purchase is incorporated herein by reference.
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| Item 4. |
Terms of the Transaction. |
The information set forth in the Offer to Purchase is
incorporated herein by reference.
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| Item 5. |
Past Contacts, Transactions, Negotiations and
Agreements. |
The information set forth in “Questions and Answers,”
“Introduction” and Sections 9, 11, 12 and 13
of the Offer to Purchase entitled “Certain Information
Concerning the Offeror and the Parent,” “Background of
Offer; Past Contacts or Negotiations with the Company,”
“Purpose of the Offer; Plans for the Company” and
“The Transaction Documents,” respectively, is
incorporated herein by reference. Except as set forth therein,
there have been no material contacts, negotiations or
transactions during the past two years which would be required
to be disclosed in this Item 5 between any of the Parent,
the Offeror, or any of their respective affiliates or
subsidiaries or any of those persons listed on Annex I to
the Offer to Purchase, on the one hand, and the Company or any
of its affiliates, on the other hand, concerning any merger,
consolidation or acquisition, the tender offer or other
acquisition of securities of the Company, an election of
directors of the Company or sale or transfer of a material
amount of assets of the Company.
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| Item 6. |
Purposes of the Transaction and Plans or Proposals. |
The information set forth in the “Questions and
Answers,” “Introduction” and
Sections 6, 7, 12 and 13 of the Offer to Purchase
entitled “Price Range of ADSs; Dividends on the Common
Shares and ADSs,” “Effect of Offer on Listing, Market
for Common Shares and ADSs; Deposit Agreement and SEC
Registration,” “Purpose of the Offer; Plans for the
Company” and “The Transaction Documents,”
respectively, is incorporated herein by reference.
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| Item 7. |
Source and Amount of Funds or Other Consideration. |
The information set forth in Section 10 of the Offer to
Purchase entitled “Source and Amount of Funds” is
incorporated herein by reference.
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| Item 8. |
Interest in Securities of the Subject Company. |
The information set forth in Section 9 of the Offer to
Purchase entitled “Certain Information Concerning the
Offeror and the Parent” is incorporated herein by reference.
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| Item 9. |
Persons/Assets Retained, Employed, Compensated or
Used. |
The information set forth in the “Introduction” and
Sections 11, 12 and 18 of the Offer to Purchase entitled
“Background of Offer; Past Contacts or Negotiations with
the Company,” “Purpose of the Offer; Plans for the
Company” and “Fees and Expenses,” respectively,
is incorporated herein by reference.
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| Item 10. |
Financial Statements. |
Not applicable.
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| Item 11. |
Additional Information. |
(a)(1) The information set forth in Annex I and
Sections 9, 11, 12 and 13 of the Offer to Purchase
entitled “Certain Information Concerning the Offeror and
the Parent,” “Background of Offer; Past Contacts or
Negotiations with the Company,” “Purpose of the Offer;
Plans for the Company” and “The Transaction
Documents,” respectively, is incorporated herein by
reference.
(a)(2), (3) The information set forth in Sections 12,
15 and 16 of the Offer to Purchase entitled “Purpose of the
Offer; Plans for the Company,” “Conditions to the
Offeror’s Obligations” and “Certain Regulatory
and Legal Matters,” respectively, is incorporated herein by
reference.
(a)(4) The information set forth in Sections 7, 10 and
16 of the Offer to Purchase entitled “Effect of Offer on
Listing, Market for Common Shares and ADSs; Deposit Agreement
and SEC Registration,” “Source and Amount of
Funds” and “Certain Regulatory and Legal
Matters,” respectively, is incorporated herein by reference.
(a)(5) None.
(b) The information set forth in the Offer to Purchase is
incorporated herein by reference.
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| Exhibit |
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Description |
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(a)(1)(i) |
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Offer to Purchase, dated September 29, 2006.* |
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(a)(1)(ii) |
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Form of Letter of Transmittal.* |
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(a)(1)(iii) |
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Form of Notice of Guaranteed Delivery.* |
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(a)(1)(iv) |
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.* |
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(a)(1)(v) |
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Form of Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees.* |
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(a)(1)(vi) |
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Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.* |
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(a)(1)(vii) |
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Instructions for Completing Form W-8BEN.* |
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(a)(1)(viii) |
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Summary Advertisement as published on September 29, 2006 in The
Wall Street Journal. |
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(a)(5) |
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Joint Press Release issued by the Parent and the Company on
September 12, 2006.(1) |
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(b) |
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None. |
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(d)(1) |
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Combination Agreement, dated as of September 12, 2006, by
and among the Parent, the Offeror and the Company.(2) |
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(d)(2) |
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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.(3) |
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(g) |
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None. |
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(h) |
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None. |
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Included in mailing to security holders. |
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| (1) |
Incorporated by reference to Exhibit 99.1 to the
Form 8-K filed by
RealNetworks, Inc. on September 12, 2006. |
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| (2) |
Incorporated by reference to Exhibit 2.1 to the
Form 8-K filed by
RealNetworks, Inc. on September 14, 2006. |
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| (3) |
Incorporated by reference to Exhibit 2 to the
Schedule 13D filed by RealNetworks, Inc. on
September 22, 2006. |
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| Item 13. |
Information Required by Schedule 13
E-3. |
Not applicable.
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.
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RN INTERNATIONAL HOLDINGS B.V. |
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By: |
/s/ Michael R. Eggers |
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Name: Michael R. Eggers |
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REALNETWORKS, INC. |
Dated: September 29, 2006
EXHIBIT INDEX
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| Exhibit |
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Description |
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(a)(1)(i) |
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Offer to Purchase, dated September 29, 2006.* |
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(a)(1)(ii) |
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Form of Letter of Transmittal.* |
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(a)(1)(iii) |
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Form of Notice of Guaranteed Delivery.* |
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(a)(1)(iv) |
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.* |
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(a)(1)(v) |
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Form of Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees.* |
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(a)(1)(vi) |
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Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.* |
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(a)(1)(vii) |
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Instructions for Completing Form W-8BEN.* |
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(a)(1)(viii) |
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Summary Advertisement as published on September 29, 2006 in The
Wall Street Journal. |
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(a)(5) |
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Joint Press Release issued by the Parent and the Company on
September 12, 2006.(1) |
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(b) |
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None. |
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(d)(1) |
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Combination Agreement, dated as of September 12, 2006, by
and among the Parent, the Offeror and the Company.(2) |
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(d)(2) |
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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.(3) |
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(g) |
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None. |
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(h) |
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None. |
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Included in mailing to security holders. |
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| (1) |
Incorporated by reference to Exhibit 99.1 to the
Form 8-K filed by
RealNetworks, Inc. on September 12, 2006. |
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| (2) |
Incorporated by reference to Exhibit 2.1 to the
Form 8-K filed by
RealNetworks, Inc. on September 14, 2006. |
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| (3) |
Incorporated by reference to Exhibit 2 to the
Schedule 13D filed by RealNetworks, Inc. on
September 22, 2006. |