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)
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. 4 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, Amendment No. 2
thereto filed with the Commission on December 23, 2003 and Amendment No. 3
thereto filed with the Commission on January 21, 2004 (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 1/25 of a share of common stock, par value $.0001 of
Obsidian ("Obsidian Shares"). Obsidian effected a 1 for 50 reverse stock split
effective February 16, 2004 for shareholders of record at January 23, 2004. 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 February 17, 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: February 17, 2004
Exhibit (a)
FOR IMMEDIATE RELEASE
FEBRUARY 17, 2004
OBSIDIAN ENTERPRISES (OTCBB: OBSD) FILES PRELIMINARY PROXY MATERIALS AND INTENDS
TO SOLICIT PROXIES IN OPPOSITION TO NET PERCEPTIONS' (NASDAQ: NETP) PLAN OF
LIQUIDATION
Obsidian Believes that Net Perceptions' Board of Directors Continues to Deny
Shareholders the Opportunity to Evaluate and Accept Alternatives to Their
Proposed Plan of Liquidation
INDIANAPOLIS, February 17, 2004 -- Obsidian Enterprises, Inc. (OTCBB: OBSD), a
holding company headquartered in Indianapolis, announced today that it has filed
preliminary proxy materials with the Securities and Exchange Commission that
will permit Obsidian to solicit proxies from shareholders of Net Perceptions,
Inc. (NASDAQ: NETP) opposing the plan of liquidation proposed by the Net
Perceptions Board of Directors.
Timothy S. Durham, Chairman and CEO of Obsidian, stated, "If the plan of
liquidation proposed by the Net Perceptions Board of Directors is a superior
alternative, it is not at all clear to us why it is necessary for the Net
Perceptions Board of Directors to maintain anti-takeover impediments to their
shareholders' ability to evaluate and accept alternatives. We believe it is time
for the Net Perceptions Board of Directors to remove its poison pill and other
anti-takeover impediments and let the shareholders who have the most at stake
here determine their own destiny. After taking millions of dollars off the table
in the form of stock sales and compensation, failing to find a buyer for the
company and generally being the people most responsible for Net Perceptions'
dismal performance, it is surprising that the management and Board of Directors
of Net Perceptions now believes they are the only people qualified to determine
which alternative the Net Perceptions shareholders may evaluate and accept."
The identity of the participants in the solicitation (as defined by Schedule
14A) and a description of their direct or indirect interests are included under
the captions "Other Information" and "Schedule I - Information Concerning
Personals Who May Solicit Proxies" in the preliminary proxy materials filed by
Obsidian with the SEC today.
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. Obsidian filed additional amendments to
the Tender Offer Statement on December 23, 2003, and January 21, 2004.
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. You may contact Innisfree M&A at (888) 750-5834 if you had
additional questions about the proposed transaction.
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, exchange offer
documents and preliminary proxy materials 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.
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 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