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. 3)
NET PERCEPTIONS, INC.
(Name of Subject Company (Issuer))
OBSIDIAN ENTERPRISES, INC.
(Names of Filing Person (Offeror))
COMMON STOCK, PAR VALUE $.0001 PER SHARE
(Title of Class of Securities)
________________________
64107 U 101
(CUSIP Number of Class of Securities)
Timothy S. Durham
Chief Executive Officer
Obsidian Enterprises, Inc.
111 Monument Circle, Suite 4800
Indianapolis, Indiana 46204
Telephone: (317) 237-4055
(Name, Address and Telephone Numbers of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
Stephen J. Dutton, Esq.
Barnes & Thornburg
11 South Meridian Street
Indianapolis, Indiana 46204
Telephone: (317) 236-1313
CALCULATION OF FILING FEE
Transaction Valuation* Amount of Filing Fee**
$10,976,682 $888
* Estimated for purposes of calculating the amount of filing fee only.
Transaction value derived by multiplying 28,145,338 (the number of shares
of common stock of the subject company outstanding as of October 31, 2003)
by $.39 (the value of each share of subject company as of December 12,
2003).
** The amount of the filing fee, calculated in accordance with Rule 0-11 of
the Securities and Exchange Act of 1934, as amended, and Fee Advisory #6
for Fiscal Year 2004 issued by the Securities and Exchange Commission on
November 24, 2003, equals 0.00008090% of the transaction valuation.
[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: $906.60 Filing Party: Obsidian Enterprises, Inc.
Form or Registration No.: Form S-4 Date Filed: December 15, 2003
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:
[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: [ ]
This Amendment No. 3 amends and supplements the Tender Offer Statement on
Schedule TO originally filed with the Securities and Exchange Commission (the
"Commission") on December 15, 2003, as amended and supplemented by Amendment No.
1 thereto filed with the Commission on December 17, 2003 and Amendment No. 2
thereto filed with the Commission on December 23, 2003 (as amended and
supplemented, this "Schedule TO") relating to the offer (the "Offer") by
Obsidian Enterprises, Inc., a Delaware corporation ("Obsidian"), to exchange
each issued and outstanding share of common stock, par value $.0001 per share
(the "Net Perceptions Shares"), of Net Perceptions, Inc., a Delaware corporation
("Net Perceptions"), for two shares of common stock, par value $.0001 of
Obsidian ("Obsidian Shares"). Obsidian has effected a 1 for 50 reverse stock
split effective for shareholders of record at January 23, 2004. The exchange
ratio after the reverse stock split will be 1/25 Obsidian Share for each Net
Perceptions Share. The number of shares and the per share amounts in this
Schedule TO have not been adjusted to give effect to that reverse split except
as expressly stated in this Schedule TO. In lieu of fractional shares, cash will
be provided in an amount equal to the value of the fractional share.
Obsidian has filed a registration statement with the Commission on Form S-4
(Reg. No. 333-111191) relating to the Obsidian Shares to be issued to
stockholders of Net Perceptions in the Offer (the "Registration Statement"). The
terms and conditions of the Offer are set forth in the prospectus which is a
part of the Registration Statement (the "Prospectus") and the related Letter of
Transmittal.
ITEM 12. EXHIBITS.
(a) Press Release issued by Obsidian, dated January 21, 2004.
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Schedule TO is true, complete and
correct.
OBSIDIAN ENTERPRISES, INC.
By: /s/ Timothy S. Durham
------------------------------------
Timothy S. Durham
Chief Executive Officer
Date: January 21, 2004
Exhibit (a)
FOR IMMEDIATE RELEASE
JANUARY 21, 2004
OBSIDIAN ENTERPRISES SUBMITS PROPOSAL TO NET PERCEPTIONS
Obsidian Proposal Reduces Uncertainty, Offers Superior Alternative to the
Company's Plan of Liquidation
INDIANAPOLIS, January 21, 2004 -- Obsidian Enterprises, Inc. (OTCBB: OBSD), a
holding company headquartered in Indianapolis, announced today that it has
formally submitted a proposal to acquire all of the equity of Net Perceptions,
Inc. (Nasdaq: NETP) in accordance with Net Perception's publicly announced
procedures for submission of best and final acquisition proposals. The text of
the letter sent to the Board of Directors of Net Perceptions follows:
Pursuant to the press release issued by Net Perceptions, Inc. ("NETP" or
the "Company") on January 9, 2004, Obsidian Enterprises, Inc. ("Obsidian")
is pleased to submit this proposal to acquire all of the outstanding equity
of the Company.
For your consideration, enclosed you will find a form of proposed Merger
Agreement, the highlights of which are as follows:
Transaction Structure: Merger.
Consideration: Two shares of Obsidian common stock (subject to adjustment
for the pending reverse stock split) for each share of NETP common stock.
Conditions: Customary closing conditions for transactions of this type,
including a "minimum cash" requirement.
Termination/Break Up Fee: None.
Purchase Price Adjustment/Minimum Cash: We will require additional
information to insert the appropriate numbers in this portion of the
Agreement, but based on NETP's most recent filings (and assuming
consummation of the asset and licensing agreements previously announced by
the Company), we believe the appropriate number for Section 2.1(d) of our
proposed form of Merger Agreement is approximately $10.0 million and the
appropriate number for Section 6.1(b) is approximately $7.0 million.
Timing: Obsidian is prepared to promptly respond to any questions,
negotiate any aspects of our proposal, and consider any comments you, your
counsel or your financial advisor may have (and in this regard, and to
avoid any miscommunications, we request that all such communications to
Obsidian from NETP be in writing and addressed to Obsidian, its legal
counsel and its strategic advisor). Obsidian is prepared to finalize and
execute the enclosed merger agreement promptly.
After reviewing the disclosure contained in NETP's 14D-9 (including the
recently filed amendment), and to clear up some apparent confusion on the
part of Mr. Donnelly and, as a result of his misunderstandings, any
misunderstandings that the Board of Directors may have, please be advised
that Obsidian is prepared to provide NETP and its financial advisors with
any information regarding Obsidian that may be requested by NETP. Among
other things, the "fairness opinion" delivered by Candlewood would
certainly be more valuable to you if it were based on information that we
have previously offered to make available to you and Candlewood.
With respect to Obsidian's due diligence review of NETP, as we have
indicated to your representatives on previous occasions, Obsidian is
prepared to rely on the public filings of NETP to complete its due
diligence.
In the event that you fail to respond to this proposal in a manner deemed
timely by Obsidian, Obsidian will continue to evaluate its alternatives,
including: (i) continuing with or terminating its previously announced
tender offer and (ii) taking appropriate steps to commence a solicitation
in opposition to NETP's plan of liquidation or any alternative transaction
that may be proposed by NETP.
After engaging in a process that apparently is now well into its second
year and that has delivered little in the way of value for the long
suffering NETP shareholders, we hope that you will take this opportunity to
make an informed decision and move expeditiously to consummate a
transaction with Obsidian.
Timothy S. Durham, Chairman and CEO of Obsidian, stated, "We have commenced our
exchange offer and dedicated significant time and financial resources to pursing
the acquisition of Net Perceptions. We remain prepared to make information
available to Net Perceptions, discuss our proposal with Net Perceptions and
deliver what we believe is a far superior alternative to the Net Perceptions
shareholders relative to the uncertain pay out announced by Net Perceptions
under its proposed plan of liquidation. Our proposal permits Net Perceptions to
accept a superior proposal. We believe it is time for Net Perceptions to remove
its poison pill and let the shareholders who have the most at stake here to
determine their own destiny." Obsidian filed a Registration Statement on Form
S-4 and a Tender Offer Statement with the Securities and Exchange Commission on
December 15, 2003 and an amendment to each on December 17, 2003.
The offer is scheduled to expire at 5:00 PM, New York City time, on February 20,
2004, unless the offer is extended. The offer is subject to certain conditions,
including that:
o Net Perceptions take appropriate action to cause their poison pill to
not be applicable to the offer;
o Obsidian be satisfied that Section 203 of the Delaware General
Corporation Law will not be applicable to the contemplated second-step
merger; and
o stockholders tender at least 51% of the outstanding shares of common
stock of Net Perceptions.
The Exchange Agent for the exchange offer is StockTrans, Inc., 44 West Lancaster
Avenue, Ardmore, Pennsylvania 19003. The Information Agent for the exchange
offer is Innisfree M&A Incorporated, 501 Madison Avenue, 20th Floor, New York,
New York 10022.
Obsidian is a holding company headquartered in Indianapolis, Indiana. It
conducts business through its subsidiaries: Pyramid Coach, Inc., a leading
provider of corporate and celebrity entertainer coach leases; United Trailers,
Inc., and its division, Southwest Trailers, manufacturers of steel-framed cargo,
racing ATV and specialty trailers; U.S. Rubber Reclaiming, Inc., a butyl-rubber
reclaiming operation; and Danzer Industries, Inc., a manufacturer of service and
utility truck bodies and steel-framed cargo trailers.
This press release is provided for informational purposes only and is neither an
offer to purchase nor a solicitation of an offer to sell shares of Net
Perceptions, Inc. or Obsidian Enterprises, Inc. Obsidian has filed with the
Securities and Exchange Commission a registration statement and exchange offer
documents with respect to the proposed transaction. Investors and security
holders are advised to read those documents because they include important
information. Investors and security holders may obtain a free copy of any
documents filed by Obsidian with the SEC at the SEC's website at www.sec.gov.
The exchange offer, registration statement and the other documents may also be
obtained free of charge by directing a request by mail to Innisfree M&A
Incorporated, 501 Madison Avenue, 20th Floor, New York, New York 10022, or by
calling toll-free (888) 750-5834, and may also be obtained from Obsidian
Enterprises, Inc. by directing a request by mail to Obsidian Enterprises, Inc.
111 Monument Circle, Suite 4800, Indianapolis, Indiana 46024, Attn: Rick D.
Snow.
This press release contains "forward-looking statements." These forward-looking
statements are based on currently available competitive, financial and economic
data and management's views and assumptions regarding future events. Such
forward-looking statements are inherently uncertain. Obsidian cannot provide
assurances that the exchange offer described in this press release will be
successfully completed or that we will realize the anticipated benefits of any
transaction. Actual results may differ materially from those projected as a
result of certain risks and uncertainties, including but not limited to: global
economic and market conditions; the availability of liquidity under our existing
lines of credit; successful integration of acquired or merged businesses;
changes in interest rates; our ability to retain key management and employees;
our ability to meet demand at competitive prices in our coach leasing segment
and our trailer and related transportation equipment manufacturing segment; our
ability to successfully develop alternative sources of raw materials in our
butyl rubber reclaiming segment; relationships with significant customers; as
well as other risks and uncertainties, including but not limited to those
detailed from time to time in Obsidian's Securities and Exchange Commission
filings.
Source: Obsidian Enterprises, Inc.
For More Information Contact:
Timothy S. Durham
Chairman & C.E.O.
Obsidian Enterprises, Inc.
tsdurham@msn.com
317-237-4055