-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, I4dpKC3n/2NdEjb+hGuef35UAoG0aHBX4d8tZM2aljZah1RxwaldSwVcxrPY2UY9 0Ay6Jnf6+i+FgrcvFSg8wA== 0000929624-99-000211.txt : 19990210 0000929624-99-000211.hdr.sgml : 19990210 ACCESSION NUMBER: 0000929624-99-000211 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990209 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SHOPPING COM CENTRAL INDEX KEY: 0001045360 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DEPARTMENT STORES [5311] IRS NUMBER: 330733679 STATE OF INCORPORATION: CA FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 14D9/A SEC ACT: SEC FILE NUMBER: 005-53689 FILM NUMBER: 99525413 BUSINESS ADDRESS: STREET 1: 2101 E COAST HIGHWAY GARDEN LEVEL CITY: CORONA DEL MAR STATE: CA ZIP: 92625 BUSINESS PHONE: 7146404393 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SHOPPING COM CENTRAL INDEX KEY: 0001045360 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DEPARTMENT STORES [5311] IRS NUMBER: 330733679 STATE OF INCORPORATION: CA FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 14D9/A BUSINESS ADDRESS: STREET 1: 2101 E COAST HIGHWAY GARDEN LEVEL CITY: CORONA DEL MAR STATE: CA ZIP: 92625 BUSINESS PHONE: 7146404393 SC 14D9/A 1 SCHEDULE 14D9/A ================================================================================ - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------- AMENDMENT NO. 2 TO SCHEDULE 14D-9/A Solicitation/Recommendation Statement Pursuant to Section 14(d)(4) of the Securities Exchange Act of 1934 --------------- SHOPPING.COM (Name of Subject Company) SHOPPING.COM (Name of Person Filing Statement) COMMON STOCK, NO PAR VALUE (Title of Class of Securities) 82509Q-10-6 (Cusip Number of Class of Securities) FRANK W. DENNY 2101 E. Coast Hwy, Garden Level Corona del Mar, California 92625 (949) 640-4393 (Name, Address and Telephone Number of Person Authorized to Receive Notice and Communications on Behalf of Person Filing Statement) WITH COPIES TO:
BARRY D. FALK, ESQ. MARK ASDOURIAN, ESQ. CELESTE E. GREENE Jeffers, Wilson, Shaff & Falk, LLP A Professional Law Corporation Skadden, Arps, Slate, 18881 von Karman Avenue, Suite 1400 5 Park Plaza, Suite 1480 Meagher & Flom, LLP Irvine, California 92612 Irvine, California 92614 Four Embarcadero Center (949) 660-7700 (714) 557-4100 San Francisco, California 94111 (415) 984-6460
- -------------------------------------------------------------------------------- ================================================================================ SOLICITATION/RECOMMENDATION STATEMENT This Amendment No. 2 to Schedule 14D-9 amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 filed by Shopping.com (the "Company") with the Securities and Exchange Commission ("SEC") on January 15, 1999, as amended by that Amendment No. 1 to Schedule 14D-9/A ("Amendment No. 1") filed by the Company with the SEC on January 21, 1999 (as amended, the "Statement"), relating to the cash tender offer (the "Offer") by Compaq Interests, Inc., a Delaware corporation ("Purchaser") and an indirect, wholly- owned subsidiary of Compaq Computer Corporation ("Parent"), a Delaware corporation, disclosed in a Tender Offer Statement on Schedule 14D-1, filed by Parent dated January 15, 1999, as amended by Amendment No. 1 to Schedule 14D-1 filed January 21, 1999. Capitalized terms used but not otherwise defined herein have the meanings ascribed such terms in the Statement. ITEM 4 SOLICITATION AND RECOMMENDATION. (b) Background; Reasons for the Company's Board Recommendation. ---------------------------------------------------------- Item 4(b) is hereby amended and supplemented by adding thereto the following: "The press release issued by the Company on January 11, 1999, mistakenly referred to the "safe harbor" provided by the Private Securities Litigation Reform Act of 1995. The "safe harbor" is not available to statements made in connection with a tender offer." ITEM 9 MATERIAL TO BE FILED AS EXHIBITS. Item 9 is hereby amended and supplemented by adding thereto the following Exhibits: (a)(14) Press Release, dated January 11, 1999, issued by Company. (a)(15) Press Release, undated, posted on Company's website at www.shopping.com. ANNEX B FAIRNESS OPINION OF TRAUTMAN KRAMER & COMPANY, INCORPORATED Annex B to the Statement, Fairness Opinion of Trautman Kramer & Company, Incorporated, dated January 20, 1999, is hereby deleted in its entirety and replaced with the ANNEX B attached hereto. SIGNATURES After reasonable 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. SHOPPING.COM, INC. Date: February 9, 1999 /s/ FRANK W. DENNY --------------------------------- Frank W. Denny, President and Chief Executive Officer REVISED ANNEX B TRAUTMAN KRAMER & COMPANY INCORPORATED 500 FIFTH AVENUE NEW YORK, NEW YORK 10110 212-575-5500 . 800-895-4800 . FAX . 212-575-6589 www.tkco.com As of January 20, 1999 (Revised February 4, 1999) To The Board of Directors Shopping.com 2101 East Coast Highway Corona del Mar, CA 92625 We understand that all of the issued and outstanding common shares and certain other equity interests of Shopping.com ("IBUY" or the "Company") are to be acquired by Compaq Interests, Inc., an indirect wholly-owned subsidiary of Compaq Computer Corporation (collectively, "Compaq") for the consideration of not less than $18.25 per share of Common Stock in an all-cash transaction (the "Transaction). Compaq will indirectly assume all liabilities, both existing and contingent and existing indebtedness at the close of the transaction, and the Company will become a wholly owned subsidiary of Compaq. You have requested our written opinion (the "Opinion") solely as to the matters set forth below. This Opinion values the Company on a "take-out value" basis, giving effect inter alia to the Company's history, operating plan, infrastructure, existing financial condition and value ascribed to the domain name. For purposes of this Opinion, "take-out value" shall be defined as the amount at which the Company would change hands between a willing buyer and a willing seller, each having reasonable knowledge of the relevant facts, neither being under any compulsion to act, in an arm's length transaction under present conditions for the sale of comparable business enterprises, as such conditions can be reasonably evaluated by Trautman Kramer & Company, Incorporated ("TKCO"). We have used the same valuation methodologies in determining take-out value for purposes of rendering this Opinion. The term "existing and contingent liabilities" shall mean the stated amount of all existing and contingent liabilities identified to us and valued by responsible officers of the Company, upon whom we have relied without independent verification; no other contingent liabilities will be considered. No representation is made herein, or directly or indirectly by the Opinion, as to any legal matter or as to the sufficiency of said definitions for any purpose other than setting forth the scope of TKCO's Opinion hereunder. Notwithstanding the use of the defined terms "take-out value," we have not been engaged to identify prospective purchasers or to ascertain the actual prices at which and terms under which the Company can currently be sold, and we know of no such efforts by others. Because the sale of any business enterprise involves numerous assumptions and uncertainties, not all of which can be quantified or ascertained prior to engaging in an actual selling effort, we express no opinion as to whether the Company would actually be sold for the amount we believe to be its fair value and present fair saleable value. Pursuant to the terms of an engagement letter dated January 11, 1999, by and between the Company and TKCO, the Company has agreed to compensate TKCO a $250,000 fee for rendering its opinion assuming a successful close to the Transaction. In the event that the Transaction does not occur, the fee will be reduced to $50,000. TKCO has acted as the Company's investment banker on prior occasions and received fees for those services. TKCO and certain of its principals own shares of Common Stock and warrants to acquire Common Stock of the Company. In connection with this Opinion, we have made such reviews, analyses and inquiries as we have deemed necessary and appropriate under the circumstances. Among other things, we have: 1. Reviewed the Company's audited financial statements for the fiscal years ended January 31, 1998 and 1997; 2. Reviewed certain Company interim financial information and interim projections for the 9 months ended.October 30, 1998, which the Company's management has identified as the most current information available; 3. Reviewed a revised capitalization table, prepared by the Company dated January 19, 1999 setting forth the outstanding shares of Common Stock as well as all unexercised warrants and options; 4. Reviewed the Company's most-recent Business Plan for its Internet retailing business and on-line auction site; 5. Held discussions with management of the Company to discuss the condition, future prospects, and projected operations and performance of the Company; 6. Reviewed the Company's financial projections dated July 1998 for the fiscal years ended January 31, 1999 through 2002; 7. Reviewed the historical market prices and trading volume for the Company's publicly traded securities; 8. Reviewed other publicly available financial data for the Company and certain companies that we deem comparable to the Company, and other economic and financial matters related to the Company's business operation; and 9. Conducted such other studies, analyses and investigations as we have deemed appropriate. We have relied upon and assumed, without independent verification, that the financial forecasts and projections provided to us have been reasonably prepared and reflect the best currently available estimates of the future financial results and condition of the Company, and that there has been no material adverse change in the assets, financial condition, business or prospects of the Company since the date of the most recent interim financial statement made available to us. We have not independently verified the accuracy and completeness of the information supplied to us with respect to the Company and do not assume any responsibility for it. We have not made any physical inspection or independent appraisal of any of the properties or assets of the Company. Our opinion is necessarily based on business, economic, market and other conditions as they exist and can be evaluated by us at the date of this letter. It is understood that this letter is intended for the benefit and use of the Board of Directors of the Company in its consideration of the Transaction and may not be used for any other purpose or reproduced, disseminated, quoted or referred to at any time, in any manner or for any purpose without our prior written consent; provided however, that this letter may be disclosed if required by law and may be included in its entirety and referred 2 to in any filing with the Securities and Exchange Commission relating to the Transaction. Our conclusion in connection therewith does not constitute a recommendation that any stockholder of the Company vote to approve, ratify, disapprove, abstain from voting, act or abstain from acting in connection with any action considered by the stockholders. Based upon and subject to the foregoing, it is our opinion that as of the date hereof, the consideration to be received by common stockholders of the Company in the transaction is fair, from a financial point of view, to the stockholders of the Company. Based on the foregoing, and in reliance thereon, it is our opinion as of the date of this letter that, assuming the Transaction is consummated as proposed, immediately after and giving effect to the Transaction, the take-out value of the Company's operating business and its tangible and intangible assets approximates the value of the consideration presently being offered by Compaq in the proposed Transaction. We further note that we previously issued an opinion on the Transaction on January 11,1999 which is with your consent, hereby withdrawn in light of certain supplemental information which the Company has provided to us. This Opinion is delivered to you subject to the conditions, scope of engagement, limitations and understandings set forth in this Opinion and our engagement letter dated January 11, 1999, and subject to the understanding that the obligations of TKCO in the Transaction are solely corporate obligations, and no officer, director, employee, agent, shareholder or controlling person of TKCO shall be subjected to any personal liability whatsoever to any person, nor will any such claim be asserted by or on behalf of you or your affiliates. TRAUTMAN KRAMER & COMPANY, INCORPORATED /s/ GREGORY O. TRAUTMAN ------------------------------- Gregory O. Trautman, CFA President 3 EXHIBIT INDEX
EXHIBIT NO. - ------- (a)(1)+ Offer to Purchase, dated January 15, 1999 (a)(2)+ Letter of Transmittal (a)(3)+ Letter for use by Brokers, Dealers, Banks, Trust Companies and Nominees to their Clients (a)(4)+ Letter to Clients (a)(5)+ Notice of Guaranteed Delivery (a)(6)+ Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (a)(7)+ Press Release issued by Parent, dated January 11, 1999 (a)(8)+ Form of Summary Advertisement, dated January 15, 1999 (a)(9)+ Fairness Opinion of Trautman Kramer & Company, dated January 11, 1999 (a)(10)+ Supplemental Letter to Shareholders dated January 21, 1999 (a)(11)+ Press Release, dated January 21, 1999, issued by Parent (a)(12)+ Fairness Opinion of Trautman Kramer & Company, dated January 20, 1999 (a)(14) Press Release, dated January 11, 1999, issued by Company (a)(15) Press Release, undated, posted on Company's website at www.shopping.com (c)(1)+ Agreement and Plan of Merger, dated January 11, 1999, by and between Parent and the Company (c)(2)+ Shareholder Agreement, dated January 11, 1999, by and between Parent and Robert McNulty (c)(3)+ Shareholder Agreement, dated January 11, 1999, by and between Parent and Cyber Depot (c)(4)+ Shareholder Agreement, dated January 11, 1999, by and between Parent and Kipling Isle (c)(5)+ Shareholder Agreement, dated January 11, 1999, by and between Parent and Paul Hill (c)(6)+ Shareholder Agreement, dated January 11, 1999, by and between Parent and Ed Bradley (c)(7)+ Shareholder Agreement, dated January 11, 1999, by and between Parent and Mark Winkler (c)(8)+ Shareholder Agreement, dated January 11, 1999, by and between Parent and Kristine Webster (c)(9)+ Shareholder Agreement, dated January 11, 1999, by and between Parent and John Markley (c)(10)+ Shareholder Agreement, dated January 11, 1999, by and between Parent and Frank Denny (c)(11)+ Shareholder Agreement, dated January 11, 1999, by and between Parent and Pat Demicco (c)(12)+ Shareholder Agreement, dated January 11, 1999, by and between Parent and Randy Read (c)(13)+ Stock Option Agreement, dated January 11, 1999, by and between Parent and the Company (c)(14)+ Amendment No. 1 to the Agreement and Plan of Merger, dated January 20, 1999, by and between Parent and the Company
(c)(15)+ Amendment No. 1 to the Shareholder Agreement, dated January 20, 1999, by and between Parent and Robert McNulty (c)(16)+ Amendment No. 1 to the Shareholder Agreement, dated January 20, 1999, by and between Parent and Cyber Depot (c)(17)+ Amendment No. 1 to the Shareholder Agreement, dated January 20, 1999, by and between Parent and Kipling Isle (c)(18)+ Amendment No. 1 to the Shareholder Agreement, dated January 20, 1999, by and between Parent and Paul Hill (c)(19)+ Amendment No. 1 to the Shareholder Agreement, dated January 20, 1999, by and between Parent and Ed Bradley (c)(20)+ Amendment No. 1 to the Shareholder Agreement, dated January 20, 1999, by and between Parent and Mark Winkler (c)(21)+ Amendment No. 1 to the Shareholder Agreement, dated January 20, 1999, by and between Parent and Kristine Webster (c)(22)+ Amendment No. 1 to the Shareholder Agreement, dated January 20, 1999, by and between Parent and John Markley (c)(23)+ Amendment No. 1 to the Shareholder Agreement, dated January 20, 1999, by and between Parent and Frank Denny (c)(24)+ Amendment No. 1 to the Shareholder Agreement, dated January 20, 1999, by and between Parent and Pat Demicco (c)(25)+ Amendment No. 1 to the Shareholder Agreement, dated January 20, 1999, by and between Parent and Randy Read
- ------------ + Previously filed with the Statement. EX-99.(A)(14) 2 PRESS RELEASE, DATED 01/11/1999 Exhibit (a)(14) Press Release, dated January 11, 1999, issued by Company For Further Information: Contact: Mr. Frank Denny, CEO & President Shopping.com 2101 E. Coast Highway Garden Level Corona del Mar, CA 92625 (949) 640-4374 www.shopping.com - ---------------- FOR IMMEDIATE RELEASE Shopping.com Enters Merger Agreement with Compaq Computer Corporation Corona del Mar, CA, January 11, 1999 -- Frank W. Denny, CEO and President of Shopping.com (OTCBB: IBUY) today announced that the company's Board of Directors has approved a tender offer for $19.00 per share to be accepted and approved by its shareholders in a merger agreement with Compaq Computer Corporation (NYSE; CPQ). "In my opinion the value that has been created at Shopping.com for the benefit of its shareholders after only roughly one year of becoming a public company made the offer by Compaq attractive to the Company," Denny said. The anticipated traffic from Alta Vista and Compaq Internet PCS will enable Shopping.com to grow faster and more efficiently than stand alone e-commerce companies. In turn, the increased knowledge gained from users' online purchasing interests will allow Alta Vista to better organize content and information for its users. About Shopping.com Shopping.com was founded with the mission to be the dominant low-price leader on the Internet, selling brand-name consumer products every day. Shopping.com is an online retailer offering more than 2 million item selections of top brand- name consumer products organized by category. Shopping.com targets both the consumer and commercial markets utilizing state-of-the-art proprietary systems technology. Shopping.com competes with other Internet retailers such a CDnow CDNW, at cdnow.com, for music; Amazon AMZN, at amazon.com, Barnes and Noble BKS, - ---- ---- --- at barnesandnoble.com and Books-A-Million, Inc. BAMM, at booksamillion.com, for ---- books; Cyberian Outpost, Inc. COOL, at outpost.com and CompUSA, Inc. CPU, at ---- --- compusa.com, for computers; and Staples, Inc. SPLS, at staples.com, for office ---- products; along with the AOL and Yahoo shopping sites. Shopping.com offers millions of brand-name products to the Internet shopper, ranging from computers, books, office products, CDS, pet supplies, housewares and more. Shopping.com provides everyday low prices and fast delivery using direct vendor shipping, secure online payment protection and customer-friendly check-out services to ensure a user-friendly Web shopping experience for the Internet shopper. Visit Shopping.com's Web site at www.shopping.com or www.IBUYstores.com. EX-99.(A)(15) 3 PRESS RELEASE, UPDATED, POSTED ON CO. WEBSITE Exhibit (a)(15) Press Release, undated, posted on Company's website at www.shopping.com PRESS CONTACT Bender, Goldman & Helper 310/473-4147 Jenny Rosa jenny_rosas@bgh.com - ------------------- Debra Gorov debra_gorov@bgh.com - ------------------- FOR IMMEDIATE RELEASE Compaq Reaches Agreement to Acquire Shopping.com Strategic Move for AltaVista to Become a Leading Internet Transaction Site In a move designed to leverage the tremendous user traffic generated by its AltaVista Internet guide and its Internet PCs, Compaq Computer Corporation CPQ today announced it has reached a definitive agreement to acquire Shopping.com IBUY, a leading on-line retailer which offers Internet shoppers a vast array of top brand-name consumer products. The increased traffic from AltaVista and Compaq Internet PCs will enable Shopping.com to grow faster and more efficiently than stand alone e-commerce companies. In turn, the increased knowledge gained from users' online purchasing interests will allow AltaVista to better organize content and information for its users. A wholly owned subsidiary of Compaq will promptly commence a tender offer to acquire all of the outstanding shares of Shopping.com for $19 per share in cash, representing an aggregate approximate purchase price of $220 million. The Board of Directors and management of Shopping.com have unanimously approved the acquisition and will recommend shareholder acceptance. "The Internet is fast becoming a transaction medium in addition to a content medium. Today, AltaVista becomes the first site to fully combine these two capabilities into one synergistic user experience," said Rod Schrock, Compaq Senior Vice President and Group General Manager, Consumer Products. "Our intent is to make AltaVista the leading guide for both information and e-commerce on the Internet." During the recent holiday season, AltaVista drove several million visits to the AltaVista Holiday shopping experience and its e-commerce partners. With the addition of Shopping.com capabilities, AltaVista can now directly complete e- commerce transactions and offer customers a seamless information and shopping experience. Compaq entered into a stockholder agreement with certain significant shareholders who, in the aggregate, are the holders of approximately 27 percent of the fully diluted shares of common stock of Shopping.com. The stockholder agreement provides for, among other things, the commitment of each of these shareholders to tender their respective shares into the tender offer. The closing of the transaction is subject to the satisfaction of various conditions including, but not limited to, Compaq receiving at least 90 percent of the issued and outstanding shares of common stock of Shopping.com and expiration of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act. AltaVista Leads the Industry AltaVista is the most powerful and useful guide to the Internet and is a forerunner in Web search technology. AltaVista continues to set new standards such as indexing the entire Internet as well as providing the AV Family Filter and AV Photo Finder search capabilities. Over the last several months, AltaVista has made extensive enhancements to make navigating the Internet relevant, fast and effective for Web users of all proficiency levels. The impact of these improvements has been noted by both customers and the press: - -- AltaVista was named one of "The Best Sites of `98" by ZDNet/Yahoo! Internet Life. - -- AltaVista is a nominee for the 1999 Webby Awards given by the International Academy of Digital Arts & Sciences (IADAS). - -- AltaVista received the highest marks in the Internet search industry for accuracy, user satisfaction and loyalty based on a recent study by Cyber Dialogue, a leading authority in one-to-one marketing and on-line market research. - -- AltaVista has grown to become the ninth largest individual domain on the Internet, up from the eleventh position, as ranked by the firm Relevant Knowledge. For more information, visit AltaVista's flagship site located at http://www.altavista.com or http://www.av.com. Shopping.com Unique Attributes Shopping.com has a state-of-the-art transaction capability that can best complement AltaVista's customer traffic potential while delivering a superior customer buying experience. Committed to offering one-stop shopping for products and services, Shopping.com: - -- Features 63 Warehouse Power Stores to Internet shoppers providing a comprehensive selection of over two million name brand products backed by more than 1,000 merchandizing partners - -- Offers the Maximizer frequent shopper program where customers earn reward dollars on all purchases and services The simple "Shopping.com" name is easily recognizable and will aid in the development of the most powerful e-commerce brand in the industry. Shopping.com is available at http://www.shopping.com. 2 Company Background Compaq Computer Corporation, a Fortune Global 100 company, is the second largest computer company in the world and the largest global supplier of computer systems. Compaq develops and markets hardware, software, solutions, and services, including industry-leading enterprise computing solutions, fault- tolerant business-critical solutions, networking and communication products, commercial desktop and portable products and consumer PCs. The company is an industry leader in environmentally friendly programs and business practices. Compaq products are sold and supported in more than 100 countries through a network of authorized Compaq marketing partners. Customer support and information about Compaq and its products are available at http://www.compaq.com. Compaq, Registered U.S. Patent and Trademark Office. Product names mentioned herein may be trademarks and/or registered trademarks of their respective companies. 3 -----END PRIVACY-ENHANCED MESSAGE-----