-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VCY2SSpP3R7yBmmo+lLoXjr8/JSQtI/15Npc7FCWq4bfe2sg3q7+Ge193Al6/dCX B1UCt2DOXrcYJFrqTtfq/w== 0000898430-01-500873.txt : 20010605 0000898430-01-500873.hdr.sgml : 20010605 ACCESSION NUMBER: 0000898430-01-500873 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20010604 GROUP MEMBERS: UNIVERSAL ACQUISITION CORP GROUP MEMBERS: UNIVERSAL MUSIC GROUP INC GROUP MEMBERS: VIVENDI UNIVERSAL SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: EMUSIC COM INC CENTRAL INDEX KEY: 0001065013 STANDARD INDUSTRIAL CLASSIFICATION: PHONOGRAPH RECORDS & PRERECORDED AUDIO TAPES & DISKS [3652] IRS NUMBER: 650207877 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: SEC FILE NUMBER: 005-56073 FILM NUMBER: 1653686 BUSINESS ADDRESS: STREET 1: 1991 BROADWAY STREET 2: 2ND FLOOR CITY: REDWOOD CITY STATE: CA ZIP: 94063 BUSINESS PHONE: 6502160200 MAIL ADDRESS: STREET 1: 1991 BROADWAY STREET 2: 2ND FLOOR CITY: REDWOOD CITY STATE: CA ZIP: 94063 FORMER COMPANY: FORMER CONFORMED NAME: GOODNOISE CORP DATE OF NAME CHANGE: 19980626 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: UNIVERSAL MUSIC GROUP INC CENTRAL INDEX KEY: 0001137880 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 954601792 STATE OF INCORPORATION: CA FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: 2220 COLORADO AVENUE CITY: SANTA MONICA STATE: CA ZIP: 90404 BUSINESS PHONE: 3108655000 MAIL ADDRESS: STREET 1: 2220 COLORADO AVENUE CITY: SANTA MONICA STATE: CA ZIP: 90404 SC TO-T/A 1 dsctota.txt FINAL AMENDMENT SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- SCHEDULE TO/A (RULE 14d-100) TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 3 (FINAL AMENDMENT)) AND SCHEDULE 13D/A (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (AMENDMENT NO. 2) --------------- EMUSIC.COM INC. (Name of Subject Company (Issuer)) UNIVERSAL ACQUISITION CORP. (OFFEROR) UNIVERSAL MUSIC GROUP, INC. (OFFEROR PARENT) (Names of Filing Persons (identifying status as offeror, issuer or other person)) COMMON STOCK, PAR VALUE $0.001 PER SHARE (Title of Class of Securities) 292476108 (CUSIP Number of Class of Securities) --------------- LAWRENCE KENSWIL PRESIDENT, ELABS UNIVERSAL MUSIC GROUP 2220 COLORADO AVENUE, SIXTH FLOOR SANTA MONICA, CA 90404 TELEPHONE: (310) 865-5000 (Name, address and telephone number of person authorized to receive notices and communications on behalf of filing persons) --------------- COPY TO: RUTH E. FISHER, ESQ. KEVIN S. MASUDA, ESQ. MUNGER, TOLLES & OLSON LLP 355 SOUTH GRAND AVENUE LOS ANGELES, CA 90071 TELEPHONE: (213) 683-9100 --------------- CALCULATION OF FILING FEE TRANSACTION VALUATION* AMOUNT OF FILING FEE - -------------------------------------------------------------------------------- $36,364,204 $7,273 - -------------------------------------------------------------------------------- * Estimated for purposes of calculating the amount of filing fee only. The amount assumes the purchase of a total of (i) 43,202,110 shares of the outstanding common stock, par value $0.001 per share, of the Subject Company (the "Subject Company Stock"), (ii) 13,203,224 shares of Subject Company Stock issuable upon exercise of outstanding options, and (iii) 7,391,514 shares of Subject Company Stock issuable upon exercise of outstanding warrants, each at an offer price of $0.57 per share. - -------------------------------------------------------------------------------- [X] Check 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: $7,273 Form or Registration No.: Schedule TO Filing Party: Universal Music Group, Inc. and Universal Acquisition Corp. Date Filed: April 20, 2001 [_] 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. [X] 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: [X] - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SCHEDULE 13D/A This Amendment No. 2 to Schedule 13D amends the Schedule 13D filed on April 16, 2001, by Universal Acquisition Corp., Universal Music Group, Inc., and Vivendi Universal, as amended by Amendment No. 1 filed on May 22, 2001. - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Universal Acquisition Corp. - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS 4 AF - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORANIZATION Delaware - ------------------------------------------------------------------------------ NUMBER OF SOLE VOTING POWER 7 SHARES 37,000,584 ----------------------------------------------------------- BENEFICIALLY SHARED VOTING POWER 8 OWNED BY ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 37,000,584 ----------------------------------------------------------- PERSON SHARED DISPOSITIVE POWER 10 WITH - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 37,000,584 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 Approximately 85.6% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 CO - ------------------------------------------------------------------------------ - ------------------------------------------------------------------------------ 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Universal Music Group, Inc. - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT 5 TO ITEMS 2(e) or 2(f) [_] - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 California - ------------------------------------------------------------------------------ NUMBER OF SOLE VOTING POWER 7 SHARES 37,000,584 ----------------------------------------------------------- BENEFICIALLY SHARED VOTING POWER 8 OWNED BY ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 37,000,584 ----------------------------------------------------------- PERSON SHARED DISPOSITIVE POWER 10 WITH - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 37,000,584 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 Approximately 85.6% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 CO - ----------------------------------------------------------------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Vivendi Universal - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS 4 AF - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(e) or 2(f) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 France - ------------------------------------------------------------------------------ NUMBER OF SOLE VOTING POWER 7 SHARES 37,000,584 ----------------------------------------------------------- BENEFICIALLY SHARED VOTING POWER 8 OWNED BY ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 37,000,584 ----------------------------------------------------------- PERSON SHARED DISPOSITIVE POWER 10 WITH - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 37,000,584 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 Approximately 85.6% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 CO - ------------------------------------------------------------------------------ SCHEDULE TO/A This Amendment No. 3 amends and supplements the Tender Offer Statement on Schedule TO filed by Universal Music Group, Inc., a California corporation ("Parent"), and Universal Acquisition Corp., a Delaware corporation ("Purchaser") and wholly owned subsidiary of Parent, on April 20, 2001, as amended by (i) Amendment No. 1 to Schedule TO, filed by Parent and Purchaser on May 1, 2001, and (ii) Amendment No. 2 to Schedule TO, filed by Parent and Purchaser on May 18, 2001 (such Tender Offer Statement on Schedule TO and all amendments thereto collectively constituting the "Schedule TO"). The Schedule TO relates to the offer by Purchaser to purchase all of the outstanding Common Stock, par value $0.001 (the "Shares"), of EMusic.com Inc., a Delaware corporation (the "Company"), at the purchase price of $0.57 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase (the "Offer to Purchase") and in the related Letter of Transmittal (which together with the Offer to Purchase, and any amendments and supplements thereto, collectively constitute the "Offer"). ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY Item 8 of the Schedule TO is hereby amended and supplemented by including the following: The Offer's subsequent offering period expired at 5:00 p.m., New York City time, on Friday, June 1, 2001. Purchaser has accepted for purchase all shares validly tendered in both the initial offering period and the subsequent offering period at the Offer Price. Based on information provided by American Stock Transfer & Trust Company, the depositary for the Offer, Purchaser has acquired approximately 37,000,584 Shares (127,027 of which were tendered in the subsequent offering period pursuant to procedures for guaranteed delivery), or approximately 85.6% of the outstanding Shares as of June 1, 2001. Pursuant to the Merger Agreement, because Purchaser has acquired more than 80% of the outstanding Shares, Purchaser has the option to acquire from the Company that number of newly issued Shares which will, when added to the Shares previously acquired, give Purchaser 90% of the total outstanding Shares. Purchaser intends to exercise this option as soon as practicable. Further pursuant to the Merger Agreement, Purchaser then intends to cause the Merger (as defined in the Offer to Purchase) to become effective as soon as practicable. In connection with the Merger, each Share owned by Parent or Purchaser, or any wholly owned subsidiary of Parent or the Company, or held in treasury by the Company, will be canceled and retired, and all other Shares issued and outstanding immediately prior to the Effective Time (as defined in the Offer to Purchase) will be canceled and converted automatically into the right to receive $0.57 in cash per Share. ITEM 12. EXHIBITS. Item 12 of the Schedule TO is hereby amended and supplemented by including the following: (a)(10) Text of press release issued by Parent, dated June 4, 2001. 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. Schedules TO/A and 13D/A UNIVERSAL ACQUISITION CORP. By /s/ Lawrence Kenswil ____________________________________ Name: Lawrence Kenswil Title: Executive Vice President Schedules TO/A and 13D/A UNIVERSAL MUSIC GROUP, INC. By /s/ Lawrence Kenswil ____________________________________ Name: Lawrence Kenswil Title: Executive Vice President Schedule 13D/A VIVENDI UNIVERSAL By /s/ Lawrence Kenswil ____________________________________ Name: Lawrence Kenswil Title: Attorney-in-Fact Dated: June 4, 2001 EXHIBIT INDEX Exhibit - ------- (a)(1)* Offer to Purchase, dated April 20, 2001. (a)(2)* Form of Letter of Transmittal. (a)(3)* Form of Notice of Guaranteed Delivery. (a)(4)* Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. (a)(5)* Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. (a)(6)* Text of joint press release issued by Parent and the Company, dated April 9, 2001. (a)(7)* Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (a)(8)* Form of summary advertisement, dated April 20, 2001. (a)(9)* Text of press release issued by Parent, dated May 18, 2001. (a)(10) Text of press release issued by Parent, dated June 4, 2001. (d)(1)* Agreement and Plan of Merger, dated as of April 6, 2001, among Parent, Purchaser and the Company. (d)(2)* Stockholders Agreement, dated as of April 6, 2001, among Parent, Purchaser and certain current and former directors and officers of the Company. * Previously filed. EX-99.(A)(10) 2 dex99a10.txt PRESS RELEASE ISSUED BY PARENT DATED JUNE 4, 2001 Exhibit (a)(10) Universal Music Group Announces Close of the Subsequent Offering Period in its Cash Tender Offer for Emusic.com SANTA MONICA, June 4 -- Universal Music Group announced today the completion of the cash tender offer by Universal Acquisition Corp., a wholly owned subsidiary of Universal Music Group, for all outstanding shares of common stock of EMusic.com Inc. (Nasdaq: EMUS). The tender offer's subsequent offering period expired at 5:00 p.m., New York City time, on Friday, June 1, 2001. The subsequent offering period of ten business days was announced following the expiration of the initial offering period on Thursday, May 17, 2001. Universal Music Group, through Universal Acquisition Corp., has accepted for purchase all shares validly tendered in both the initial offering period and the subsequent offering period at the price of $0.57 per share in cash. Based on information provided by American Stock Transfer & Trust Company, the depositary for the tender offer, Universal Acquisition Corp. acquired approximately 37,000,000 shares of EMusic common stock during the tender offer (including approximately 127,000 shares tendered by guaranteed delivery during the subsequent offering period), or approximately 86% of the outstanding shares as of June 1, 2001. As previously announced, because Universal Acquisition Corp. has acquired more than 80% of EMusic's outstanding shares, under its Merger Agreement with EMusic, Universal Acquisition Corp. has the option to acquire from EMusic that number of shares (at $0.57 per share) which will, when added to the shares previously acquired, give it 90% of the total outstanding shares of EMusic. Universal Acquisition Corp. intends to exercise this option as soon as practicable. Also as previously announced, a 90% level of ownership will allow Universal Acquisition Corp. to effect a "short- form" merger under Delaware law without action by any other stockholder. On the consummation of the merger, each remaining share of EMusic's stock will be converted into the right to receive $0.57 in cash and EMusic will become a wholly owned indirect subsidiary of Universal Music Group. Since it was founded in January 1998, EMusic has established itself at the forefront of how music will be discovered, delivered and enjoyed in the next decade. In addition to having the Internet's leading downloadable music subscription service, EMusic operates one of the most popular families of music- oriented Web sites -- including RollingStone.com, EMusic.com and DownBeat.com. The company is based in Redwood City, California, with regional offices in Chicago, Los Angeles and New York. Universal Music Group is the world's leading music company with wholly owned record operations or licensees in 63 countries around the world. Its businesses also include Universal Music Publishing Group, one of the industry's largest global music publishing operations. Universal Music Group consists of record labels A&M Records, Decca Record Company, Deutsche Grammophon, Geffen Records, Interscope Records, Island Def Jam Music Group, MCA Nashville, MCA Records, Mercury Records, Motown Records, Philips, Polydor, Universal Records, and Verve Music Group as well as a multitude of record labels owned or distributed by its record company subsidiaries around the world. The Universal Music Group owns the most extensive catalog of music in the industry which is marketed through two distinct divisions, Universal Music Enterprises (in the U.S.) and UM3 (outside the U.S.). Universal Music Group is a unit of Vivendi Universal, a global media and communications company. For further information please contact Bob Bernstein of Universal Music Group, 310-865-0589. -----END PRIVACY-ENHANCED MESSAGE-----