UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2 to
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
Rightside Group, Ltd.
(Name of Subject Company)
DTS Sub Inc.
(Offeror)
Donuts Inc.
(Parent of Offeror)
(Name of Filing Person)
Common Stock, $0.0001 par value per share
(Title of Class of Securities)
76658B100
(CUSIP Number of Class of Securities)
Alvaro Alvarez
SVP, General Counsel & Secretary
Donuts Inc.
10500 NE 8th Street, Suite 1450
Bellevue, Washington 98004
(424) 262-4238
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of the Person(s) Filing Statement)
With copies to:
Jens M. Fischer
Kara Tatman
Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, Washington 98101-3099
(206) 359-8000
CALCULATION OF FILING FEE
| Transaction Valuation(1) | Amount of Filing Fee(2) | |
| $219,219,756.90 | $25,407.57 | |
| (1) | Estimated solely for purposes of calculating the amount of the filing fee. The transaction valuation was calculated by (i) multiplying the offer price of $10.60 by 21,309,166 Shares, which is the sum of (a) 19,287,957 outstanding shares of common stock, par value $0.0001 per share (“Shares”), of Rightside Group, Ltd. (“Rightside”), (b) 772,896 Shares underlying outstanding in-the-money stock options exercisable under Rightside’s equity plans (the “Options”), and (c) 1,248,313 Shares underlying outstanding restricted stock units, and (ii) subtracting the aggregate exercise price of the Options. This calculation does not include any Shares issuable upon exercise of the Company’s outstanding warrants, as the exercise price per share for the warrants is greater than $10.60 per share. The warrants are therefore not expected to be exercised. The foregoing share figures and aggregate exercise price have been provided by Rightside to the offeror and are as of June 23, 2017, the most recent practicable date. |
| (2) | The filing fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for fiscal year 2017, issued August 31, 2016, by multiplying the transaction value by 0.00011590. |
| ☒ | 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: $25,407.57 | Filing Party: Donuts Inc. | |
| Form or Registration No.: Schedule TO-T | Date Filed: June 27, 2017 |
| ☐ | 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:
| ☒ | 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 fee is a final amendment reporting the results of the tender offer: ☐
Check the appropriate boxes below to designate any transactions to which the statement relates:
| ☐ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
| ☐ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
This Amendment No. 2 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed by Donuts Inc., a Delaware corporation (“Parent”), and DTS Sub Inc., a Delaware corporation (“Purchaser”) and a wholly owned subsidiary of Parent, on June 27, 2017, with the Securities and Exchange Commission (together with any subsequent amendments and supplements thereto, the “Schedule TO”). The Schedule TO relates to the offer (the “Offer”) by Purchaser, to purchase all of the outstanding shares of common stock, par value $0.0001 per share (the “Shares”), of Rightside Group, Ltd., a Delaware corporation (“Rightside” or the “Company”), at a price of $10.60 per Share, net to the holder in cash, without interest, less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated June 27 , 2017 (as it may be amended or supplemented, the “Offer to Purchase”), and the related Letter of Transmittal (as it may be amended or supplemented, the “Letter of Transmittal,” and together with the Offer to Purchase, the “Offer”), copies of which are filed as Exhibits (a)(1)(A) and (a)(1)(B), respectively, of the Schedule TO.
Except as otherwise indicated in this Amendment, the information set forth in the Schedule TO remains unchanged. Capitalized terms used but not defined herein have the meanings ascribed to them in the Schedule TO.
| Item 11. | Additional Information. |
Item 11 of the Schedule TO is hereby amended and supplemented as follows:
(a) The information set forth in Section 15 – “Certain Conditions of the Offer” of the Offer to Purchase is hereby amended and supplemented by inserting the following paragraph to the end of Section 15:
“The condition to the Offer requiring that the waiting period applicable to the Offer under the HSR Act will have expired or been terminated has been satisfied by the early termination of the HSR Act waiting period, effective on July 6, 2017.”
(b) The second, third, fourth, fifth, and sixth sentences of the second paragraph of the subsection entitled “Antitrust Compliance” under Section 16 – “Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase are hereby amended and restated as follows:
“Parent filed Premerger Notification and Report Forms with the FTC and the Antitrust Division in connection with the purchase of Shares in the Offer and the Merger on June 21, 2017. The waiting period applicable to the Offer under the HSR Act was terminated early effective on July 6, 2017.”
The joint press release announcing the expiration of the waiting period applicable to the Offer under the HSR Act is attached hereto as Exhibit (a)(5)(D).
| Item 12. | Exhibits. |
Item 12 of the Schedule TO is hereby amended and supplemented as follows:
| Exhibit No. |
Description | |
| (a)(5)(D) | Joint press release issued by Parent and Rightside, dated July 7, 2017. | |
-1-
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 7, 2017
| DTS Sub Inc. | ||
| By: | /s/ ALVARO ALVAREZ | |
| Name: | Alvaro Alvarez | |
| Title: | Vice President and Secretary | |
| Donuts Inc. | ||
| By: | /s/ ALVARO ALVAREZ | |
| Name: | Alvaro Alvarez | |
| Title: | SVP, General Counsel and Secretary | |
EXHIBIT LIST
| Exhibit No. |
Description | |
| (a)(1)(A) | Offer to Purchase, dated June 27, 2017.* | |
| (a)(1)(B) | Form of Letter of Transmittal.* | |
| (a)(1)(C) | Form of Notice of Guaranteed Delivery.* | |
| (a)(1)(D) | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(E) | Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(F) | Summary Advertisement as published in The New York Times on June 27, 2017.* | |
| (a)(5)(A) | Joint press release issued by Parent and Rightside, dated June 14, 2017 (incorporated by reference to Exhibit 99.1 to the Tender Offer Statement on Schedule TO-C filed by Parent on June 14, 2017).* | |
| (a)(5)(B) | Email to employees of Parent, dated June 14, 2017 (incorporated by reference to Exhibit 99.2 to the Tender Offer Statement on Schedule TO-C filed by Parent on June 14, 2017).* | |
| (a)(5)(C) | Email to registrars of Parent, dated June 14, 2017 (incorporated by reference to Exhibit 99.3 to the Tender Offer Statement on Schedule TO-C filed by Parent on June 14, 2017).* | |
| (a)(5)(D) | Joint press release issued by Parent and Rightside, dated July 7, 2017. | |
| (b) | Debt Commitment Letter, dated June 13, 2017, by and among Silicon Valley Bank and Parent.* | |
| (d)(1) | Agreement and Plan of Merger, dated as of June 13, 2017, among Parent, Purchaser and Rightside (incorporated by reference to Exhibit 2.1 of Rightside’s Current Report on Form 8-K filed on June 14, 2017).* | |
| (d)(2) | Confidentiality Agreement between Parent and Rightside, dated as of March 27, 2017, and amended as of May 25, 2017.* | |
| (g) | Not applicable. | |
| (h) | Not applicable. | |
| * | Previously filed with the Schedule TO. |
Exhibit (a)(5)(D)
Rightside and Donuts Announce the Early Termination of the HSR Waiting Period
KIRKLAND, Wash., July 7, 2017 – Rightside Group, Ltd. (NASDAQ:NAME) and Donuts Inc. today announced that the waiting period was terminated early by the U.S. Federal Trade Commission on July 6, 2017 under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, relating to the previously announced tender offer by Donuts’ wholly owned subsidiary, DTS Sub Inc., to purchase all issued and outstanding shares of Rightside common stock.
The early termination of the waiting period satisfies one of the conditions to the tender offer. The completion of the tender offer is conditioned upon the valid tender (without withdrawal) of at least a majority of the issued and outstanding shares of Rightside common stock (as calculated in the offer), as well as other important conditions specified in the Schedule TO filed by Donuts with the Securities and Exchange Commission (the “SEC”) on June 27, 2017. The tender offer is scheduled to expire at 12:00 midnight, New York City time, on July 26, 2017 (one minute after 11:59 p.m., New York City time, on July 26, 2017), unless extended in accordance with applicable SEC rules and the terms of the merger agreement among Donuts, DTS Sub Inc. and Rightside.
About Rightside
Rightside inspires and delivers new possibilities for consumers and businesses to define and present themselves online. The company, with its affiliates, is a leading provider of domain name services, offering one of the industry’s most comprehensive platforms for the discovery, registration, usage and monetization of domain names. In addition to being a new gTLD registry operator, Rightside is home to one of the most admired registrar brands in the industry, Name.com. Headquartered in Kirkland, WA, Rightside has offices in North America and Europe. For more information please visit www.Rightside.co.
About Donuts
Donuts is a leading domain name registry for new top-level Internet domain extensions. Donuts offers businesses, individuals and organizations new ways to brand and unify their online identities, in multiple languages and character sets. Donuts is headquartered in Bellevue, Washington. For more information, please visit www.donuts.domains.
Forward-Looking Statements
This press release contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Statements concerning the expected tender offer and statements containing words such as may, believe, anticipate, expect, intend, plan, project, and estimate or similar expressions constitute forward-looking statements. Forward-looking statements involve risks and uncertainties including, among others: the failure to satisfy regulatory and other closing conditions to the tender offer, including the tender of a sufficient number of Rightside common shares in the offering. More information about potential risk factors that could affect the tender offer are contained in Rightside’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2017 filed with the Securities and Exchange Commission (the “SEC”) and other SEC filings. All forward-looking statements are expressly qualified in their entirety by this cautionary statement. The parties do not intend to revise or update the information set forth in this press release, except as required by law, and may not provide this type of information in the future.
Important Additional Information and Where to Find It
This announcement is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell shares of Rightside common stock. Donuts filed with the SEC a tender offer statement on Schedule TO, and Rightside has filed a Solicitation/Recommendation Statement on Schedule 14D-9, all with respect to the Offer (as defined in those documents). Holders of shares of Rightside common stock are urged to carefully read the relevant tender offer materials (including the Offer to Purchase, the related Letter of Transmittal and the other tender offer documents) and the Solicitation/Recommendation Statement because they contain important information that holders of shares of Rightside common stock should consider before making any decision regarding tendering their shares. The Offer to Purchase, the related Letter of Transmittal and certain other tender offer documents, as well as the Solicitation/Recommendation Statement, are available to all holders of shares of Rightside common stock at no expense to them from the Information Agent at the address and telephone number set forth on the back cover of the Offer to Purchase (and below) filed with the Schedule TO.
A free copy of the tender offer materials and the Solicitation/Recommendation Statement are also available to all Rightside stockholders by contacting Rightside at IR@rightside.rocks or by phone at (212) 331-8424, or by visiting Rightside’s website (www.rightside.co). The tender offer materials and the Solicitation/Recommendation Statement are also available for free at the SEC’s website at www.sec.gov. Rightside’s stockholders are advised to read the tender offer materials and the Solicitation/Recommendation Statement, as each may be amended or supplemented from time to time, and any other relevant documents filed with the SEC when they become available before they make any decision with respect to the tender offer because they will contain important information about the proposed transaction and the parties to the transaction.
Rightside Investor Contacts:
The Blueshirt Group
Allise Furlani, 212-331-8433, allise@blueshirtgroup.rocks
Brinlea Johnson, 212-331-8424, brinlea@blueshirtgroup.rocks
Donuts Media Contact:
Judith McGarry, Donuts
415-971-2900
judith@donuts.email
Information Agent:
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, NY 10022
Stockholders call toll-free from the U.S. and Canada: (888) 750-5834
Banks and Brokers call collect: (212) 750-5833