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
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))
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COMMON STOCK, $0.0001 PAR VALUE
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83083J104
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(Title of Class of Securities)
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(CUSIP Number of Class of Securities)
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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, 14
th
Floor
Costa Mesa, California 92626
(714) 641-5100
CALCULATION
OF FILING FEE
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Transaction valuation*
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Amount of filing fee
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$202,138,359.60
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$20,355.34
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*
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(1)
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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) 28,746,664 Shares issued and outstanding and up to 2,576,792 Shares issuable upon the exercise of outstanding options and the 1,555,093 Shares outstanding with respect to restricted stock unit awards and 258,887 Shares Outstanding
with respect to performance share units multiplied by (b) the offer price of $6.10 per Share. The foregoing share figures have been provided by the issuer to the offerors and are as of July 26, 2016.
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(2)
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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.
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x
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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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$20,355.34
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Filing Party:
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Powder Merger Sub, Inc. and Incipio, LLC
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Form of Registration No.:
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Schedule TO
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Date Filed:
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August 3, 2016
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¨
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement relates:
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x
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third-party tender offer subject to
Rule 14d-1.
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¨
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issuer tender offer subject to
Rule 13e-4.
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¨
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going-private transaction subject to
Rule 13e-3.
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¨
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amendment to Schedule 13D under
Rule 13d-2.
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Check the following box if the filing is a final amendment reporting the results of the tender offer:
x
If applicable, check the appropriate box(es) below to designate the appropriate rule
provision(s) relied upon:
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¨
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
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¨
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Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
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This Amendment No. 4 (this “
Amendment
”) amends and supplements the Tender
Offer Statement on Schedule TO initially filed with the Securities and Exchange Commission on July 6, 2016, as amended by Amendment No. 1 filed on July 19, 2016, Amendment No. 2 filed on August 3, 2016, and Amendment
No. 3 filed on August 16, 2016 (collectively with any further 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 $6.10 per Share (the “
Offer Price
”), 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
Amended Offer to Purchase dated August 3, 2016 (the “
Amended Offer to Purchase
”), which is annexed to and filed as Exhibit (a)(1)(F) to the Schedule TO, and in the related Amended Form of Letter of Transmittal, which is filed
as Exhibit (a)(1)(G) to the Schedule TO, which, together with all amendments or supplements thereto, collectively constitute the “Offer.”
This Amendment No. 4 is being filed to announce termination of the Offer and amend and supplement Items 1 through 11. Capitalized terms
used but not defined in this Amendment No. 4 have the meanings set forth in the Amended Offer to Purchase.
Items 1 through 11.
Items 1 through 11 of the Schedule TO are hereby amended and supplemented by adding the following text thereto:
On August 13, 2016, Skullcandy delivered to the Incipio Board a notice of receipt of an Acquisition Proposal to purchase the Shares at a
price of $6.50 per Share, which the Skullcandy Board determined to be reasonably likely to lead to a Superior Proposal to the terms of the Merger Agreement.
On August 14, 2016, the Acquisition Proposal submitted to Skullcandy on August 13, 2016 was rescinded, and Skullcandy delivered to
the Incipio Board a notice of receipt of an Acquisition Proposal to purchase the Shares at a price of $6.25 per Share without fully committed financing, which the Skullcandy Board determined not to be reasonably likely to lead to a Superior Proposal
to the terms of the Merger Agreement.
On August 15, 2016, Skullcandy delivered to the Incipio Board a notice of receipt of an
Acquisition Proposal to purchase the Shares at a price of $6.25 per Share with fully committed financing, which the Skullcandy Board determined to be reasonably likely to lead to a Superior Proposal to the terms of the Merger Agreement.
On August 17, 2016, Skullcandy delivered to the Incipio Board a notice of receipt of an Acquisition Proposal to purchase the Shares at a
price of $6.35 per Share, which the Skullcandy Board determined to be a Superior Proposal to the terms of the Merger Agreement.
On
August 23, 2016, Skullcandy terminated the Merger Agreement pursuant to the terms thereof to accept the Superior Proposal and, in connection therewith, Incipio delivered a demand for the payment of the termination fee.
Incipio and Purchaser are terminating the Offer as a result of the failure of a condition to the Offer caused by the termination of the Merger
Agreement. No Shares will be accepted by Incipio or Purchaser and the previously announced Offer Price will not be paid or become payable to holders of the Shares who validly tendered and did not withdraw. Any Shares previously tendered
and not withdrawn will be promptly returned to the tendering stockholder.
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: August 24, 2016
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INCIPIO, LLC
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By:
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/s/ Andy Fathollahi
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Andy Fathollahi
Chairman and Chief Executive
Officer
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POWDER MERGER SUB, INC.
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By:
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/s/ Andy Fathollahi
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Andy Fathollahi
President
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EXHIBIT INDEX
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(a)(1)(A)
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Offer to Purchase, dated July 6, 2016(1)
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(a)(1)(B)
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Form of Letter of Transmittal (including Internal Revenue Service Form W-9, including instructions for completing the form)(2)
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(a)(1)(C)
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Form of Notice of Guaranteed Delivery(3)
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(a)(1)(D)
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees(4)
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(a)(1)(E)
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Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees(5)
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(a)(1)(F)
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Amended Offer to Purchase, dated August 3, 2016(6)
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(a)(1)(G)
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Amended Form of Letter of Transmittal (including Internal Revenue Service Form W-9, including instructions for completing the form)(7)
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(a)(1)(H)
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Amended Form of Notice of Guaranteed Delivery(8)
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(a)(1)(I)
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Amended Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees(9)
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(a)(1)(J)
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Amended Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees(10)
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(a)(5)(A)
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Joint Press Release issued by Incipio and Skullcandy on June 24, 2016(11)
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(a)(5)(B)
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Summary Newspaper Advertisement as published in The Wall Street Journal on July 6, 2016(12)
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(a)(5)(C)
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Press Release issued by Incipio on July 6, 2016(13)
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(a)(5)(D)
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Press Release issued by Incipio on July 19, 2016(14)
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(a)(5)(E)
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Joint Press Release issued by Incipio and Skullcandy on August 3, 2016(15)
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(a)(5)(F)
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Press Release issued by Incipio on August 17, 2016(23)
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(b)(1)
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Commitment Letter, dated as of June 23, 2016, by and among Incipio, Monroe Capital LLC and Wells Fargo Bank, National Association(16)
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(b)(2)
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Commitment Letter, dated as of June 23, 2016, by and between Incipio and Andy Fathollahi(17)
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(b)(3)
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Commitment Letter, dated as of August 2, 2016, by and among Incipio, Monroe Capital LLC and Wells Fargo Bank, National Association(18)
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(b)(4)
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Commitment Letter, dated as of August 2, 2016, by and between Incipio and Incipio Technologies, Inc.(19)
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(d)(1)
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Agreement and Plan of Merger, dated as of June 23, 2016, by and among Purchaser, Incipio and Skullcandy(20)
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(d)(2)
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Confidentiality Letter Agreement, dated as of April 6, 2016 by and between Incipio and Skullcandy(21)
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(d)(3)
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Amendment No. 1 to Agreement and Plan of Merger, dated as of August 3, 2016, by and among Purchaser, Incipio and Skullcandy(22)
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(g)
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Not applicable
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(h)
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Not applicable
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(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(A)(1)(F) to the Schedule TO filed by
Incipio on August 3, 2016 (File Number: 161804558)
(7) Incorporated by reference to Exhibit 99.1(A)(1)(G) to the Schedule TO
filed by Incipio on August 3, 2016 (File Number: 161804558)
(8) Incorporated by reference to Exhibit 99.1(A)(1)(H) to the
Schedule TO filed by Incipio on August 3, 2016 (File Number: 161804558)
(9) Incorporated by reference to Exhibit 99.1(A)(1)(I)
to the Schedule TO filed by Incipio on August 3, 2016 (File Number: 161804558)
(10) Incorporated by reference to Exhibit
99.1(A)(1)(J) to the Schedule TO filed by Incipio on August 3, 2016 (File Number: 161804558)
(11) Incorporated by reference to
Exhibit 99.1 to the Form 8-K filed by Skullcandy on June 24, 2016 (File Number: 161729989)
(12) Incorporated by reference to
Exhibit 99.1(a)(5)(B) to the Schedule TO filed by Incipio on July 6, 2016 (File Number: 161752532)
(13) Incorporated by
reference to Exhibit 99.1(a)(5)(C) to the Schedule TO filed by Incipio on July 6, 2016 (File Number: 161752532)
(14)
Incorporated by reference to Exhibit 99.1(a)(5)(D) to the Schedule TO-T/A filed by Incipio on July 19, 2016 (File Number: 161752532)
(15) Incorporated by reference to Exhibit 99.1(a)(5)(E) to the Schedule TO filed by Incipio on August 3, 2016 (File
Number: 161804558)
(16) Incorporated by reference to Exhibit 99.1(b)(1) to the Schedule TO filed by Incipio on July 6, 2016
(File Number: 161752532)
(17) Incorporated by reference to Exhibit 99.1(b)(2) to the Schedule TO filed by Incipio on July 6,
2016 (File Number: 161752532)
(18) Incorporated by reference to Exhibit 99.1(b)(3) to the Schedule TO filed by Incipio on
August 3, 2016 (File Number: 161804558)
(19) Incorporated by reference to Exhibit 99.1(b)(4) to the Schedule TO filed by Incipio
on August 3, 2016 (File Number: 161804558)
(20) Incorporated by reference to Exhibit 2.1 to the Form 8-K filed by Skullcandy on
June 24, 2016 (File Number: 161729989)
(21) Incorporated by reference to Exhibit 99.1(d)(2) to the Schedule TO filed by Incipio
on July 6, 2016 (File Number: 161752532)
(22) Incorporated by reference to Exhibit 99.1(d)(3) to the Schedule TO filed by
Incipio on August 3, 2016 (File Number: 161804558)
(23) Incorporated by reference to Exhibit 99.1(A)(5)(F) to Schedule TO filed
by Incipio on August 17, 2016 (File Number: 161839452)
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