0001193125-20-264010.txt : 20201005 0001193125-20-264010.hdr.sgml : 20201005 20201005172342 ACCESSION NUMBER: 0001193125-20-264010 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20201005 DATE AS OF CHANGE: 20201005 GROUP MEMBERS: CAMBIUM HOLDING CORP SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ROSETTA STONE INC CENTRAL INDEX KEY: 0001351285 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 043837082 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-85255 FILM NUMBER: 201224552 BUSINESS ADDRESS: STREET 1: 1621 NORTH KENT STREET STREET 2: SUITE 1200 CITY: ARLINGTON STATE: VA ZIP: 22209 BUSINESS PHONE: 703-387-5800 MAIL ADDRESS: STREET 1: 1621 NORTH KENT STREET STREET 2: SUITE 1200 CITY: ARLINGTON STATE: VA ZIP: 22209 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: EMPOWER MERGER SUB INC. CENTRAL INDEX KEY: 0001824529 IRS NUMBER: 852882164 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: 17855 DALLAS PARKWAY STREET 2: SUITE 400 CITY: DALLAS STATE: TX ZIP: 75287 BUSINESS PHONE: 214-932-9326 MAIL ADDRESS: STREET 1: 17855 DALLAS PARKWAY STREET 2: SUITE 400 CITY: DALLAS STATE: TX ZIP: 75287 SC TO-T/A 1 d19754dsctota.htm SC TO-T/A SC TO-T/A

 

 

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)

 

 

Rosetta Stone Inc.

(Name of Subject Company (Issuer))

Empower Merger Sub Inc.

(Name of Filing Persons (Offeror))

a wholly-owned subsidiary of

Cambium Holding Corp.

(Name of Filing Persons (Parent of Offeror))

Common Stock, par value $0.00005 per share

(Title of Class of Securities)

777780107

(CUSIP Number of Class of Securities)

Daniel Sugar

Veritas Capital Fund Management, L.L.C.

9 West 57th Street, 32nd Floor

New York, New York 10019

(212) 415-6700

(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)

With copies to:

Richard A. Presutti

Schulte Roth & Zabel LLP

919 Third Avenue

New York, NY 10022

(212) 756-2000

 

 

CALCULATION OF FILING FEE

 

Transaction Valuation*    Amount Of Filing Fee**
$791,735,806.71    $102,767.31

 

 

*

Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated by adding the sum of (i) 24,609,055 shares of common stock (including 478,356 shares of restricted common stock), par value $0.00005 per share (the “Company Shares”), of Rosetta Stone Inc., a Delaware corporation (“Rosetta Stone”), issued and outstanding, multiplied by the offer price of $30.00 per share; (ii) 299,571 Company Shares reserved for issuance upon the settlement of outstanding Rosetta Stone restricted stock unit awards multiplied by the offer price of $30.00 per share; (iii) 419,401 Company Shares reserved for issuance upon settlement of outstanding Rosetta Stone performance stock unit awards multiplied by the offer price of $30.00 per share; and (iv) 1,542,539 Company Shares issuable pursuant to outstanding options with an exercise price less than the offer price of $30.00 per share, multiplied by the offer price of $30.00 per share minus the exercise price for each such option. The foregoing share figures have been provided by Rosetta Stone to the Offeror and are as of September 11, 2020, the most recent practicable date.

**

The filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Advisory Rate #1 for fiscal year 2020, issued October 1, 2019, is calculated by multiplying the Transaction Valuation by 0.0001298.

 

☒

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:    $102,767.31    Filing Party:    Empower Merger Sub Inc.
Form or Registration No.:    Schedule TO    Date Filed:    September 15, 2020

 

☐

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 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. 4 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the U.S. Securities and Exchange Commission on September 15, 2020 (together with any amendments and supplements hereto, the “Schedule TO”) by Empower Merger Sub Inc., a Delaware corporation (the “Offeror”) and a wholly-owned subsidiary of Cambium Holding Corp., a Delaware corporation (“Parent”), which is a portfolio company of The Veritas Capital Fund VI, L.P., a Delaware limited partnership. The Schedule TO relates to the offer by the Offeror to purchase all of the issued and outstanding shares of common stock, par value $0.00005 per share, of Rosetta Stone Inc., a Delaware corporation (“Rosetta Stone”), at a purchase price of $30.00 per share, net to the holder thereof in cash, net of applicable withholding taxes and without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated September 15, 2020 (the “Offer to Purchase”), and in the related Letter of Transmittal (as each may be amended or supplemented from time to time in accordance with the Merger Agreement described below), copies of which are attached to and filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively.

All the information set forth in the Offer to Purchase is incorporated herein by reference in response to all of the applicable items in the Schedule TO and is supplemented by the information specifically provided in the Schedule TO, except that such information is amended and supplemented to the extent specifically provided in this Amendment. The Agreement and Plan of Merger, dated as of August 29, 2020, by and among Parent, the Offeror and Rosetta Stone, a copy of which is attached as Exhibit (d)(1) thereto, is incorporated herein by reference with respect to Items 4 through 11 of the Schedule TO.

Unless otherwise indicated, references to sections in this Amendment are references to sections of the Offer to Purchase. Capitalized terms used and not otherwise defined in this Amendment shall have the meanings assigned to such terms in the Offer to Purchase or in the Schedule TO. This Amendment is being filed to amend and supplement Items 4 and 11 of the Schedule TO as reflected below.

ITEM 4. TERMS OF THE TRANSACTION.

ITEM 11. ADDITIONAL INFORMATION.

Items 4 and 11 of the Schedule TO and the disclosure under Section 15 “Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase are hereby amended and supplemented by replacing the text of the subsection titled “Legal Proceedings” in its entirety with the following text:

“On September 16, 2020, a putative stockholder lawsuit captioned Wang v. Rosetta Stone Inc., et al., Case No. 1:20-cv-01237 (D. Del. filed Sept. 16, 2020), was filed against Rosetta Stone and members of the Rosetta Stone Board in the U.S. District Court for the District of Delaware. On September 17, 2020, a putative stockholder lawsuit captioned Messinger v. Rosetta Stone Inc., et al., Case No. 1:20-cv-07661 (S.D.N.Y. filed Sept. 17, 2020), was filed against Rosetta Stone and members of the Rosetta Stone Board in the U.S. District Court for the Southern District of New York. On September 23, 2020, a putative class action lawsuit captioned Harrison v. Rosetta Stone Inc., et al., Index No. 654635/2020 (Sup. Ct., N.Y. Cnty. filed Sept. 23, 2020), was filed against Rosetta Stone and members of the Rosetta Stone Board in the Supreme Court of the State of New York in the County of New York. On September 24, 2020, a putative class action lawsuit captioned Curtis v. Rosetta Stone Inc., et al., Case No. 1:20-cv-01288 (D. Del. filed Sept. 24, 2020), was filed against Rosetta Stone, members of the Rosetta Stone Board, Parent and the Offeror in the U.S. District Court for the District of Delaware. On September 30, 2020, a putative stockholder lawsuit captioned Price v. Rosetta Stone Inc., et al., Case No. 1:20-cv-04641 (E.D.N.Y. filed Sept. 30, 2020), was filed against Rosetta Stone and members of the Rosetta Stone Board in the U.S. District Court for the Eastern District of New York. On October 2, 2020, a putative stockholder lawsuit captioned Edelman v. Rosetta Stone Inc., et al., Case No. 1:20-cv-8210 (S.D.N.Y. filed Oct. 2, 2020), was filed against Rosetta Stone and members of the Rosetta Stone Board in the U.S. District Court for the Southern District of New York. All six lawsuits allege that Rosetta Stone’s Schedule 14D-9 omits certain material information necessary for stockholders to make an informed decision whether to tender their shares, with respect to the financial data, inputs and assumptions underlying the Financial Advisor’s opinion, and various details in the section of the Schedule 14D-9 entitled “—Background of the Offer.” Plaintiffs in the Wang, Messinger, Curtis, Price and Edelman actions assert claims under the federal securities laws and the rules promulgated thereunder. Plaintiffs in the Messinger, Harrison and Curtis actions allege that the members of the Rosetta Stone Board breached their fiduciary duties in connection with the Transactions. As relief, plaintiffs seek, among other things, to enjoin the Transactions from closing until additional allegedly material information is disclosed or, in the alternative, rescission (or rescissory damages) if the Transactions close, as well as an award of their costs and disbursements, including reasonable attorneys’ fees. The defendants believe that plaintiffs’ allegations lack merit.”

SIGNATURES

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.

 

EMPOWER MERGER SUB INC.
By:   /s/ BARBARA BENSON
  Name:   Barbara Benson
  Title:   Chief Financial Officer
CAMBIUM HOLDING CORP.
By:   /s/ BARBARA BENSON
  Name:   Barbara Benson
  Title:   Chief Financial Officer

Dated: October 5, 2020