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SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
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AMENDMENT NO. 1
TO
SCHEDULE TO
Tender Offer Statement
Under Section 14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934
BEYOND.COM CORPORATION
(Name of Subject Company (issuer))
BEYOND.COM CORPORATION, as issuer
(Names of Filing Persons (identifying status as offeror,
issuer or other person))
7 1/4% CONVERTIBLE SUBORDINATED NOTES DUE DECEMBER 1, 2003
(Title of Class of Securities)
08860EAA9
(CUSIP Number of Class Securities)
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Curtis A. Cluff
Chief Financial Officer
BEYOND.COM CORPORATION
3200 Patrick Henry Drive
Santa Clara, California 95054
(408) 855-3000
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications on Behalf of Filing Persons)
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Copies to:
Richard Scudellari, Esq. Abigail Arms, Esq.
Justin L. Bastian, Esq. Shearman & Sterling
Michael P. Ashkar, Esq. 801 Pennsylvania Avenue, N.W.
Morrison & Foerster LLP Washington, D.C. 20004
755 Page Mill Road (202) 508-8000
Palo Alto, CA 94304
(650) 813-5600
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CALCULATION OF FILING FEE
<TABLE>
<CAPTION>
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Transaction Valuation Amount of filing
fee
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<S> <C>
$16,445,000 (1) $4,342
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</TABLE>
(1) Pursuant to Rule 457(f)(1) under the Securities Act of 1933, this amount is
the market value as of June 30, 2000 of the maximum amount of 7 1/4% Convertible
Subordinated Notes due December 1, 2003 that may be received by the Registrant
from tendering holders in the exchange offer.
Registration fee previously paid in connection with the Registrant's
Registration Statement on Form S-4 filed July 3, 2000.
[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: $8,580
Form or Registration No.: S-4
(File No. 333-40758)
Filing Party: Beyond.com Corporation
Date Filed: July 3, 2000
[ ] 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.
[X] 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: [ ]
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INTRODUCTION
This Tender Offer Statement on Schedule TO is being filed by Beyond.com
Corporation, a Delaware corporation, pursuant to Section 13(e) of the Securities
Exchange Act in connection with its offer to exchange up to $63.25 million of
its 7 1/4% Convertible Subordinated Notes due December 1, 2003 (or such lesser
number as are properly tendered) into its 10 7/8% Convertible Subordinated Notes
due December 1, 2003, upon the terms and subject to the conditions set forth in
Beyond.com Corporation's Registration Statement on Form S-4 (File No. 333-40758)
filed with the Securities and Exchange Commission on July 3, 2000 (the
"Registration Statement"). The Registration Statement and the exhibits thereto
are incorporated by reference in this Schedule TO in answer to some of the items
required in this Schedule TO.
Item 3. Identity and Background of Filing Persons.
William S. McKiernan, Chairman of the Board of Directors*
Ronald S. Smith, Chief Executive Officer and Director*
Curtis A. Cluff, Senior Vice President and Chief Financial Officer*
John Barratt, Senior Vice President and Chief Operating Officer*+
Eric A. Chatham, Senior Vice President, Infrastructure Engineering
and Chief Information Officer*
Montgomery B. Mars, Senior Vice President, Corporation Development and Finance*
Bonnie Charboneau-Fowler, Vice President, Business Operations*+
Brian C. Mellea, Vice President, Marketing*
Mark W. Bailey, Director*
Richard Scudellari, Director*
* c/o Beyond.com Corporation, 3200 Patrick Henry Drive,
Santa Clara, California 95054.
+ Pending approval of their Visa applications granting them permission to work
in the United States
Item 4. Terms of the Transaction.
(b) None of the securities are to be purchased from any officer, director
or affiliate of the Registrant.
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
(e) The Registrant has not entered any transactions of the type
contemplated by this Item.
Item 6. Purposes of the Transaction and Plans or Proposals.
(a) The Nasdaq National Market has alternative compliance requirements for
the continued listing of common stock of either (i) a minimum closing bid of
$5.00 per share or (ii) net tangible assets of at least $4,000,000. Shares may
also be delisted from the Nasdaq National Market if the minimum closing bid
price per share is less than $1.00 for a period of 30 consecutive business
days. One purpose of this transaction is to increase our net tangible assets in
order to avoid a potential delisting of our common stock from the Nasdaq
National Market. In addition, the transaction provides us with the flexibility
to pay interest on the exchange notes in either our common stock or cash, solely
at our option.
(c)(4) Earlier this year, Mark L. Breier resigned as our President and
Chief Executive Officer; C. Richard Neely, Jr. resigned as our Senior Vice
President of Finance and Administration and Chief Financial Officer; Gordon
Jones resigned as our Chief Information Officer; James R. Lussier resigned as
our Vice President of Business Operations and Corporate Strategy; and John D.
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Vigoreaux resigned as our Senior Vice President of Marketing. None of these
resignations are related to this transaction.
(c)(5) The Registrant has not made any material change in its corporate
structure or business of the type contemplated by this section.
(c)(6) At June 14, 2000, our common stock had traded below $5.00 for more
than 20 consecutive business days. Similarly, at June 14, 2000, our net tangible
assets were less than $4,000,000. On June 14, 2000, we received a letter from
the Nasdaq National Market indicating that unless the minimum bid price for our
common stock returned to at least $5.00 per share for at least 10 consecutive
trading days prior to September 12, 2000, our shares would be delisted from the
Nasdaq National Market on September 14, 2000, if we do not file an appeal.
As of August 23, 2000, our common stock has closed at a minimum bid price
per share of less than $1.00 for nine consecutive business days.
Item 8. Interest in Securities of the Subject Company.
None of the persons named in Item 3 beneficially owns any of the subject
securities.
Item 12. Exhibits.
(a)(1) Prospectus dated August 23, 2000.
(a)(2) Press Release Issued July 3, 2000.*
(a)(3) Form of Subordinated Indenture between the Company and LaSalle
National Bank, as exchange notes trustee.*
(a)(4) Form of Subordinated Indenture between the Company and LaSalle
National Bank, as existing notes trustee.*
(a)(5) Form of Letter of Transmittal.*
(a)(6) Form of Notice of Guaranteed Delivery.*
(a)(7) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and other Nominees.*
(a)(8) Form of Letter to Clients.*
*Previously filed as an exhibit to Registration Statement on Form S-4 (No.
333-40758) and incorporated herein by reference.
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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: August 23, 2000
BEYOND.COM CORPORATION
By: /s/ CURTIS A. CLUFF
--------------------------------
Name: Curtis A. Cluff
Title: Chief Financial Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
(a)(1) Prospectus dated August 23, 2000.
(a)(2) Press Release Issued July 3, 2000.*
(a)(3) Form of Subordinated Indenture between the Company and LaSalle
National Bank, as exchange notes trustee.*
(a)(4) Form of Subordinated Indenture between the Company and LaSalle
National Bank, as existing notes trustee.*
(a)(5) Form of Letter of Transmittal.*
(a)(6) Form of Notice of Guaranteed Delivery.*
(a)(7) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and other Nominees.*
(a)(8) Form of Letter to Clients.*
</TABLE>
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*Previously filed as an exhibit to Registration Statement on Form S-4 (No.
333-40758) and incorporated herein by reference.
