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. 7
THE ACTIVE NETWORK, INC.
(Name of Subject Company (Issuer))
ATHLACTION MERGER SUB, INC.
ATHLACTION HOLDINGS, LLC
(Name of Filing Persons (Offerors))
VISTA EQUITY PARTNERS FUND III, L.P.
VISTA EQUITY PARTNERS FUND IV, L.P.
(Name of Filing Persons (Others))
COMMON STOCK, PAR VALUE $0.001 PER SHARE
(Title of Class of Securities)
00506D100
(CUSIP Number of Class of Securities)
Brian Sheth
Athlaction Holdings, LLC
c/o Vista Equity Partners Fund IV, L.P.
401 Congress Avenue
Suite 3100
Austin, Texas 78701
(512) 730-2400
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copies to:
David Breach
Sarkis Jebejian
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
(212) 446-4800
CALCULATION OF FILING FEE
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| Transaction Valuation(1) | Amount of Filing Fee(2) | |
| $1,051,567,913 | $133,441.94 | |
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| (1) | Calculated solely for purposes of determining the filing fee. The calculation assumes the purchase of 63,264,368 shares of voting common stock, par value $0.001 per share, at an offer price of $14.50 per share. The transaction value also includes (i) 3,888,886 shares issuable pursuant to outstanding options with an exercise price less than $14.50 per share, which is calculated by (x) multiplying the number of shares underlying such options at each exercise price therefor by an amount equal to $14.50 minus such exercise price and (y) dividing such product by the offer price of $14.50 per share, (ii) 2,809,190 shares issuable upon settlement of time based restricted stock units multiplied by the offer price of $14.50 per share, (iii) 645,131 shares issuable upon settlement of performance based restricted stock units multiplied by the offer price of $14.50 per share, (iv) 1,693,550 shares issuable upon settlement of market stock units multiplied by the offer price of $14.50 per share, and (v) an aggregate of 220,800 shares subject to outstanding purchase rights under the The Active Network, Inc. 2011 Employee Stock Purchase Plan multiplied by the offer price of $14.50 per share. The calculation of the filing fee is based on information provided by The Active Network, Inc. as of September 27, 2013. |
| (2) | The amount of 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 2014, issued August 30, 2013, by multiplying the transaction value by 0.0001288. |
| x | 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: $133,441.94 | Filing Party: Athlaction Merger Sub, Inc. | |
| Form of Registration No.: Schedule TO | Date Filed: October 8, 2013 |
Check the appropriate boxes below to designate any transactions to which the statement relates:
| x | 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 is a final amendment reporting the results of the tender offer. ¨
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
| ¨ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
| ¨ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
This Amendment No. 7 (this “Amendment”) to the Tender Offer Statement on Schedule TO (together with this Amendment and any other amendments and supplements thereto, the “Schedule TO”) is being filed by (i) Athlaction Holdings, LLC, a Delaware limited liability company (“Parent”), (ii) Athlaction Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Purchaser”), (iii) Vista Equity Partners Fund III, L.P., an affiliate of each of Parent and Purchaser (“VEPF III”) and (iv) Vista Equity Partners Fund IV, L.P., an affiliate of each of Parent and Purchaser (“VEPF IV”). This Schedule TO relates to the tender offer for all of the outstanding shares of common stock, par value $0.001 per share (the “Shares”) of The Active Network, Inc., a Delaware corporation (the “Company”), at a price of $14.50 per Share, net to the seller in cash without interest and less any applicable withholding taxes, if any, upon the terms and conditions set forth in the offer to purchase dated October 8, 2013 (the “Offer to Purchase”), a copy of which is attached as Exhibit (a)(1)(A), and in the related letter of transmittal (the “Letter of Transmittal”), a copy of which is attached as Exhibit (a)(1)(B), which, together with any amendments or supplements, collectively constitute the “Offer.”
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.
All the information set forth in the Offer to Purchase is incorporated by reference herein in response to Items 1 through 9 and Item 11 in this Schedule TO, and is supplemented by the information specifically provided in this Schedule TO.
Items 1 through 9 and Item 11.
Items 1 through 9 and 11 of the Schedule TO and the disclosure in the Offer to Purchase are hereby amended and supplemented as follows:
Adding the following paragraph in Items 1 and 4 of the Schedule TO:
“On November 7, 2013, Purchaser extended the expiration of the Offer until 12:00 midnight, New York City time, on November 15, 2013 (one minute after 11:59 p.m., New York City time, on November 14, 2013). The tender offer was previously scheduled to expire at 5:00 p.m., New York City time, on November 14, 2013. The Depositary has indicated that, as of the close of business on November 6, 2013, a total of approximately 6,031,136 Shares have been validly tendered and not properly withdrawn pursuant to the Offer. The press release announcing the extension of the Offer, among other things, is attached hereto as Exhibit (a)(11).”
All references to “5:00 p.m., New York City time, on November 14, 2013” set forth in the Offer to Purchase (Exhibit (a)(1)(A)), Letter of Transmittal (Exhibit (a)(1)(B)), Notice of Guaranteed Delivery (Exhibit (a)(1)(C)), Letter from the Dealer Manager to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(D)), and Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(E)) are hereby amended and replaced with “12:00 midnight, New York City time, on November 15, 2013 (one minute after 11:59 p.m., New York City time, on November 14, 2013).”
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:
| Exhibit No. |
Description | |
| (a)(11) | Joint Press Release issued by the Company, Vista Equity Partners Fund III, L.P. and Vista Equity Partners Fund IV, L.P. on November 7, 2013 | |
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.
| ATHLACTION MERGER SUB, INC. | ||
| By | /s/ James M. Ford | |
| Name: | James M. Ford | |
| Title: | Chief Executive Officer | |
| Date: | November 7, 2013 | |
| ATHLACTION HOLDINGS, LLC | ||
| By | /s/ James M. Ford | |
| Name: | James M. Ford | |
| Title: | Chief Executive Officer | |
| Date: | November 7, 2013 | |
| VISTA EQUITY PARTNERS FUND III, L.P. | ||
| By | Vista Equity Partners Fund III GP, LLC | |
| Its: | General Partner | |
| By | VEFIIGP, LLC | |
| Its: | Senior Managing Member | |
| By | /s/ Robert F. Smith | |
| Name: | Robert F. Smith | |
| Title: | Managing Member | |
| Date: | November 7, 2013 | |
| VISTA EQUITY PARTNERS FUND IV, L.P. | ||
| By | Vista Equity Partners Fund IV GP, LLC | |
| Its: | General Partner | |
| By | VEFIIGP, LLC | |
| Its: | Senior Managing Member | |
| By | /s/ Robert F. Smith | |
| Name: | Robert F. Smith | |
| Title: | Managing Member | |
| Date: | November 7, 2013 | |
EXHIBIT INDEX
| Exhibit |
Description | |
| (a)(1)(A) | Offer to Purchase, dated October 8, 2013.* | |
| (a)(1)(B) | Letter of Transmittal* | |
| (a)(1)(C) | Notice of Guaranteed Delivery.* | |
| (a)(1)(D) | Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and Nominees.* | |
| (a)(1)(E) | Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees.* | |
| (a)(1)(F) | Press Release issued by the Company on September 30, 2013 (incorporated by reference to Exhibit 99.1 to the Form 8-K filed by the Company with the Securities and Exchange Commission on September 30, 2013).* | |
| (a)(1)(G) | Summary Advertisement as published in the Wall Street Journal on October 8, 2013.* | |
| (a)(5)(A) | Class Action Complaint dated October 8, 2013 (Bushansky v. The Active Network, Inc., et al).* | |
| (a)(5)(B) | Class Action Complaint dated October 4, 2013 (D’Ambrosia v. The Active Network, Inc., et al).* | |
| (a)(5)(C) | First Amended Class Action Complaint dated October 11, 2013 (Bushansky v. The Active Network, Inc., et al).* | |
| (a)(5)(D) | Class Action Complaint dated October 15, 2013 (Gupta v. The Active Network, Inc., et al).* | |
| (a)(5)(E) | Amended Class Action Complaint dated October 30, 2013 (D’Ambrosia v. The Active Network, Inc., et al)* | |
| (a)(8) | Joint Press Release issued by the Company, Vista Equity Partners Fund III, L.P. and Vista Equity Partners Fund IV, L.P. on October 8, 2013.* | |
| (a)(9) | Joint Press Release issued by the Company, Vista Equity Partners Fund III, L.P. and Vista Equity Partners Fund IV, L.P. on October 29, 2013.* | |
| (a)(10) | Joint Press Release issued by the Company, Vista Equity Partners Fund III, L.P. and Vista Equity Partners Fund IV, L.P. on November 6, 2013.* | |
| (a)(11) | Joint Press Release issued by the Company, Vista Equity Partners Fund III, L.P. and Vista Equity Partners Fund IV, L.P. on November 7, 2013. | |
| (b)(1) | Amended and Restated Debt Commitment Letter among Athlaction Holdings, LLC, Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Royal Bank of Canada, RBC Capital Markets, Bank of Montreal and BMO Capital Markets Corp., dated October 5, 2013.* | |
| (d)(1) | Agreement and Plan of Merger, dated as of September 28, 2013, by and among the Company, Purchaser and Parent (incorporated by reference to Exhibit 2.1 to the Form 8-K filed by the Company with the Securities and Exchange Commission on September 30, 2013).* | |
| (d)(2) | Nondisclosure and Standstill Agreement, dated August 6, 2013, between The Active Network, Inc. and Vista Equity Partners III, LLC.* | |
| (d)(3) | Limited Guarantee, dated as of September 28, 2013, delivered by Vista Equity Partners III, L.P. and Vista Equity Partners Fund IV, L.P. in favor of the Company.* | |
| (d)(4) | Equity Commitment Letter, dated as of September 28, 2013, from Vista Equity Partners III, L.P. and Vista Equity Partners Fund IV, L.P. to Parent.* | |
| (g) | None. | |
| * | Previously filed. |
Exhibit (a)(11)
Vista Equity Partners Extends Tender Offer for All Outstanding Shares of ACTIVE Network.
SAN DIEGO, CALIF. — November 7, 2013 — In connection with the previously announced agreement to acquire ACTIVE Network (NYSE: ACTV) (the “Company” or “ACTIVE”), Vista Equity Partners (“Vista”) and Active today announced that Athlaction Merger Sub, Inc. has extended the expiration of its tender offer to acquire all of the outstanding shares of common stock of the Company at a price of $14.50 per share, net to the seller in cash without interest, to 12:00 midnight, New York City time, on November 15, 2013 (one minute after 11:59 p.m., New York City time, on November 14, 2013), unless further extended. The tender offer was previously scheduled to expire at 5:00 p.m., New York City time, on November 14, 2013. All other terms and conditions of the tender offer remain unchanged.
The depositary for the tender offer has advised that, as of the close of business on November 6, 2013, a total of approximately 6,013,136 shares of the Company’s common stock were validly tendered and not properly withdrawn in the tender offer.
About ACTIVE NETWORK
ACTIVE Network is the leading provider of Activity and Participant Management™ solutions. ACTIVE’s technology platform makes managing and operating all types of activities, events and organizations smarter and more efficient. ACTIVE powers over 55,000 global customers and builds leading vertical technology applications for the markets it serves. ACTIVE’s leading ACTIVE Works cloud platform scales with its customers, large and small. ACTIVE Network was founded in 1999, is headquartered in San Diego, California, and has offices worldwide. For more information, please visit: http://www.activenetwork.com or follow the Company @ACTIVENetwork.
About Vista Equity Partners
Vista Equity Partners, a U.S. based private equity firm with offices in San Francisco, Chicago and Austin, currently invests over $7 billion in capital committed to dynamic, successful technology-based organizations led by world-class management teams with long-term perspective. Vista is a value-added investor, contributing professional expertise and multi-level support towards companies realizing their full potential. Vista’s investment approach is anchored by a sizable long-term capital base, experience in structuring technology-oriented transactions, and proven management techniques that yield flexibility and opportunity in private equity investing. For further information please visit www.vistaequitypartners.com.
Notice to Investors
This press release is not a recommendation, an offer to purchase or a solicitation of an offer to sell shares of ACTIVE’s common stock.
The solicitation and the offer to purchase shares of ACTIVE’s common stock described in this press release will be made only pursuant to the offer to purchase and related materials that Vista has filed on Schedule TO with the SEC. In addition, ACTIVE has filed its recommendation of the tender offer on Schedule 14D-9 with the SEC. Additionally, ACTIVE and Vista will file other relevant materials in connection with the proposed acquisition of ACTIVE by Vista pursuant to the terms of the merger agreement. INVESTORS AND STOCKHOLDERS OF ACTIVE ARE ADVISED TO READ THE SCHEDULE TO (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND OTHER OFFER DOCUMENTS) AND THE SCHEDULE 14D-9, 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 MAKING ANY DECISION WITH RESPECT TO THE TENDER OFFER, BECAUSE THESE DOCUMENTS WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES THERETO.
Investors and stockholders may obtain free copies of the Schedule TO and Schedule 14D-9, as each may be amended or supplemented from time to time, and other documents filed by the parties (when available), at the SEC’s web site at www.sec.gov or by contacting the investor relations department of ACTIVE at 10182 Telesis Court, San Diego, California 92121, by telephone at (858) 964-3834 or by email at PR@activenetwork.com.
Cautionary Notice Regarding Forward-Looking Statements
This press release contains forward-looking statements with respect to the tender offer and related transactions, including the benefits expected from the acquisition and the expected timing of the completion of the transaction. When used in this press release, the words “can,” “will,” “believes,” “intends,” “expects,” “is expected,” similar expressions and any other statements that are not historical facts are intended to identify those assertions as forward-looking statements. Such statements are based on a number of assumptions that could ultimately prove inaccurate, and are subject to a number of risks, including uncertainties regarding the timing and occurrence of the closing of the transaction, uncertainties as to the number of ACTIVE stockholders who may tender their stock in the tender offer, the possibility that various closing conditions for the transaction may not be satisfied or waived, and general economic and business conditions. ACTIVE does not assume any obligation to update any forward-looking statement, whether as a result of new information, future events or otherwise, unless required by law. Factors that could cause actual results of the tender offer to differ materially include the following: the risk of failing to obtain any regulatory approvals or satisfy conditions to the transaction, the risk that Vista is unable to obtain adequate financing, the risk that the transaction will not close or that closing will be delayed, the risk that ACTIVE’s business will suffer due to uncertainty related to the transaction, the competitive environment in ACTIVE’s industry and competitive responses to the transaction. Further information on factors that could affect ACTIVE’s financial results is provided in documents filed by ACTIVE with the SEC, including ACTIVE’s most recent filings on Form 10-Q and Form 10-K.
Investor Contact:
Brinlea Johnson, The Blueshirt Group
Brinlea@BlueshirtGroup.com
1-212-331-8424
Allise Furlani, The Blueshirt Group
Allise@BlueshirtGroup.com
1-212-331-8433
Media Contact:
Kristin Carroll, ACTIVE Network
Kristin.Carroll@activenetwork.com
Kristin Carroll
1-858-964-3834
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