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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934*
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MP3.COM, INC.
(Name of Issuer)
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Common Stock, Par Value $0.001 Per Share
(Title of Class of Securities)
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811850106
(CUSIP Number)
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Guillaume Hannezo
Chief Financial Officer
Vivendi Universal, S.A.
42, avenue de Friedland
75380 Paris Cedex 08 France
33-1-7171-1712
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
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Copy to:
Faiza J. Saeed, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
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May 20, 2001
(Date of Event Which Requires Filing of this Statement)
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If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. o
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. Seess. 240.13d-7(b) for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Exchange Act") or otherwise subject to the liabilities of that section of
the Exchange Act but shall be subject to all other provisions of the Exchange
Act (however, see the Notes).
(Continued on following pages)
CUSIP No. 421969106
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(1) NAME OF REPORTING PERSON
Vivendi Universal, S.A.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
I.R.S. I.D. N/A
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) ( )
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS
00
WC
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) ( )
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
France
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NUMBER OF (7) SOLE VOTING POWER
SHARES 3,000,000
BENEFICIALLY -----------------------------------------------------
OWNED BY (8) SHARED VOTING POWER
EACH 34,947,112
REPORTING -----------------------------------------------------
PERSON (9) SOLE DISPOSITIVE POWER
WITH 3,000,000
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(10) SHARED DISPOSITIVE POWER
None
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
37,947,112
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(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ( )
(See Instructions)
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
52.9%
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(14) TYPE OF REPORTING PERSON
CO
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Neither the filing of this Schedule 13D nor any of its contents shall
be deemed to constitute an admission by Vivendi Universal, S.A. that it is the
beneficial owner of any of the common stock of MP3.com, Inc. referred to herein
for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and
such beneficial ownership is expressly disclaimed.
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Item 1. Security and Issuer:
This statement on Schedule 13D (this "Statement") relates to the
common stock, par value $0.001 per share ("MP3.com Common Stock"), of MP3.com,
Inc., a Delaware corporation ("MP3.com"). The address of the principal
executive offices of MP3.com is 4790 Eastgate Mall, San Diego, CA 92121.
Item 2. Identity and Background.
(a) The name of the person filing this Statement is Vivendi
Universal, a societe anonyme organized under the laws of France ("Vivendi
Universal").
(b) The address of the principal office and principal business of
Vivendi Universal is 42, avenue de Friedland, 75380 Paris Cedex 08, France.
(c) Vivendi Universal is a company engaged in the media,
communications and environmental services businesses. Set forth in Schedule A
hereto, which is incorporated herein by reference, is the name, business
address, present principal occupation or employment and the name, principal
business and address of any corporation or other organization in which such
employment is conducted and citizenship, of each of Vivendi Universal's
directors and executive officers, as of the date hereof. Other than such
directors and executive officers, there are no persons controlling Vivendi
Universal.
(d) During the past five years, neither Vivendi Universal nor, to
Vivendi Universal's knowledge, any person named in Schedule A has been convicted
in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) During the past five years, neither Vivendi Universal nor, to
Vivendi Universal's knowledge, any person named in Schedule A has been a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of which such person was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
(f) Not applicable.
Item 3. Source and Amount of Funds or Other Consideration.
Vivendi Universal and certain stockholders of MP3.com entered into a
stockholder agreement to induce Vivendi Universal to enter into the Merger
Agreement (defined below). Pursuant to the Stockholder Agreement (the
"Stockholder Agreement") dated May 20, 2001, among Vivendi Universal and certain
significant
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stockholders of MP3.com, including Michael L. Robertson, MP3.com's Chairman and
Chief Executive Officer, Robin D. Richards, MP3.com's President and a Director,
and several investment funds for which Mark A. Stevens, a Director of MP3.com
and a General Partner of Sequoia Capital, is a managing member of the general
partner, or a partner, of such funds (collectively, the "Stockholders"), the
Stockholders have agreed to vote their shares, totaling 34,947,112 shares (the
"Subject Shares"), representing 50.9% of MP3.com's outstanding capital stock, in
favor of the Merger (defined below).
On May 20, 2001, Vivendi Universal, MP3.com, and Metronome
Acquisition Sub Inc., a Delaware corporation and a wholly owned subsidiary of
Vivendi Universal ("Merger Sub"), entered into an Agreement and Plan of Merger
(the "Merger Agreement").
The Merger is subject to certain conditions. The descriptions of the
Merger Agreement and the Stockholder Agreement contained herein are qualified
in their entirety by reference to such agreements, which are attached hereto
as Exhibits 2.1 and 99.1, respectively.
Item 4. Purpose of Transaction.
(a)-(b) Pursuant to the Merger Agreement and the actions
contemplated therein, MP3.com will be merged with and into Merger Sub (the
"Merger"), with Merger Sub continuing as the surviving corporation and as a
wholly owned subsidiary of Vivendi Universal (the "Surviving Corporation").
Upon completion of the Merger, each issued and outstanding share of MP3.com
Common Stock will be exchanged for the right to receive either (i) $5.00 in
cash, or (ii) a number of Vivendi Universal's American depositary shares
having a value of $5.00. However, subject to aggregate transaction
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consideration caps of 50% cash consideration and 50% share consideration,
there may occur some proration.
(c) Not applicable.
(d) Upon consummation of the Merger, the sole director of the
Surviving Corporation shall be the existing sole director of Merger Sub, until
his resignation or removal or until his successor or successors are duly elected
and qualified. The existing sole director of Merger Sub is George E. Bushnell
III. The officers of the Surviving Corporation shall be the existing officers of
MP3.com, until resignation or removal or until their respective successors are
duly elected and qualified.
(e) Other than as a result of the Merger described in Item 3
above, not applicable.
(f) Not applicable.
(g) Upon consummation of the Merger, the Certificate of
Incorporation of the Surviving Corporation shall be amended to read as set
forth in Exhibit 3.1 to this Statement, which is incorporated herein by
reference, and, as so amended, shall be the Certificate of Incorporation of
the Surviving Corporation until thereafter changed or amended. Upon
consummation of the Merger, the By-laws of Merger Sub, as in effect
immediately prior to the Merger, shall be the By-laws of the Surviving
Corporation until thereafter changed or amended.
(h)-(i) Upon consummation of the Merger, the MP3.com Common Stock
will be delisted from the Nasdaq Stock Market and will become eligible for
termination of registration pursuant to Section 12(g)(4) of the Exchange
Act.
(j) Other than as described above, Vivendi Universal currently
has no plan or proposals which relate to, or may result in, any of the
matters listed in Items 4(a)-(i) of Schedule 13D (although Vivendi
Universal reserves the right to develop such plans).
Item 5. Interest in Securities of the Issuer.
(a)-(b) As a result of the Stockholder Agreement and its ownership
of 3,000,000 warrants to purchase shares of MP3.com Common Stock, Vivendi
Universal may be deemed to be the beneficial owner of 37,947,112 shares of
MP3.com Common Stock. The Subject Shares constitute approximately 50.9% of the
issued and outstanding shares of MP3.com Common Stock, based on MP3.com's
representation in the Merger Agreement that there were 68,704,430 shares
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of MP3.com Common Stock issued and outstanding at the close of business on May
17, 2001. Upon exercise of its warrants, the percentage of outstanding shares
that Vivendi Universal may be deemed to beneficially own would increase to
52.9%
Pursuant to the Stockholder Agreement, the Stockholders agreed,
among other things, (i) to vote the Subject Shares in favor of (a) the
adoption of the Merger Agreement, (b) the approval of the Merger and (c) the
approval of the other transactions contemplated by the Merger Agreement, (ii)
to vote the Subject Shares against (a) any Takeover Proposal (as such term is
defined in the Merger Agreement) and (b) any amendment to the MP3.com
certificate of incorporation or by-laws or other proposal or transaction that
would impede, frustrate, prevent or nullify the Merger, the Merger Agreement
or the other transactions contemplated by the Merger Agreement or change the
voting rights of the capital stock of MP3.com, (iii) not to sell, transfer,
pledge, assign or otherwise dispose of the Subject Shares other than pursuant
to the Merger, (iv) not to enter into any voting arrangement, whether by
proxy, voting agreement or otherwise, with respect to any Subject Shares, and
(v) not to (A) directly or indirectly solicit, initiate or encourage or take
any other action that could facilitate any inquiries or the making of any
proposal that could lead to any Takeover Proposal, or (B) enter into or
participate in any discussions or negotiations or furnish information or
cooperate in any way with any Takeover Proposal.
Further, by their execution of the Stockholder Agreement, each
Stockholder irrevocably granted to and appointed Vivendi Universal and George
E. Bushnell III, Philippe Germond and Gerard Ries, or any of them, and any
individual designated in writing by any of them, as his or her proxy and
attorney-in-fact to vote the Subject Shares (i) in favor of (A) adoption of
the Merger Agreement, (B) approval of the Merger and (C) approval of any other
transactions contemplated by the Merger Agreement and (ii) against any
Takeover Proposal and (iii) against any amendment to the MP3.com certificate
of incorporation or by-laws or any other proposal or transaction that could
impede, frustrate, prevent or nullify any provision of the Merger Agreement or
the other transactions contemplated by the Merger Agreement or change in any
manner the voting rights of the capital stock of MP3.com. The name of each
Stockholder and the number of Subject Shares beneficially owned by each
Stockholder are set forth in Schedule A to the Stockholder Agreement.
In addition, the Stockholders (i) agreed (A) to use all reasonable
efforts to assist and cooperate with other parties in doing all things
necessary to consummate the Merger, and (B) not to issue any press release
without the consent of Vivendi Universal, (ii) consented to and approved the
actions of the MP3.com board of directors, (iii) waived their appraisal rights
under Delaware law and (iv) agreed to deliver an "affiliate" letter, if
applicable.
For purposes of the Stockholder Agreement, "Subject Shares" includes
any shares of capital stock of MP3.com acquired by any Stockholder after the
date of, and during the term of, the Stockholder Agreement. The Stockholder
Agreement terminates upon the earlier to occur of (i) such date and time as
the Merger shall become effective and (ii) the date of termination of the
Merger Agreement in accordance with its terms.
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(c) Neither Vivendi Universal nor, to the knowledge of Vivendi
Universal, any person named in Schedule A, has effected any transaction in
MP3.com Common Stock during the past 60 days.
(d) Not applicable.
(e) Not applicable.
Item. 6 Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
Other than as described in Items 3, 4 and 5 and the agreements
incorporated herein by reference and set forth in exhibits hereto, to the
knowledge of Vivendi Universal, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) among the persons named
in Item 2 and between such persons and any person with respect to any
securities of MP3.com, including but not limited to transfer or voting of any
of the securities, finder's fees, joint ventures, loan or option arrangements,
puts or calls, guarantees of profits, division of profits or loss, or the
giving or withholding of proxies.
Item 7. Material to Be Filed as Exhibits.
2-1 Agreement and Plan of Merger dated as of May 20, 2001, by
and among Vivendi Universal, Merger Sub and MP3.com.
3-1 Certificate of Incorporation of the Surviving
Corporation.
99-1 Stockholder Agreement dated as of May 20, 2001,
between Vivendi Universal and certain stockholders of MP3.com.
SIGNATURE
After reasonable 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.
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Dated: May 30, 2001
Vivendi Universal, S.A.
by: /s/ George E. Bushnell III
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Name: George E. Bushnell III
Title: Vice President and
Corporate Counsel
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SCHEDULE A
(a) Set forth below is the name, business address, principal occupation or
employment and citizenship of each director and executive officer of
Vivendi Universal. Unless otherwise indicated, the business address of
each person listed below is 42, Avenue de Friedland, 75380 Paris Cedex
08, France.
Name and Business Principal Occupation or Employment Citizenship
Address and Business Address
Jean-Marie Messier Chairman and CEO of Vivendi Universal. France
Edgar Bronfman, Jr. Vice Chairman of Vivendi Universal. United States
Eric Licoys Co-COO of Vivendi Universal. France
Pierre Lescure Chairman and CEO of CANAL+, Chairman France
of the Executive Board of Groupe
CANAL+ and Co-COO of Vivendi
Universal.
Bernard Arnault Chairman and CEO of LVMH. France
30, avenue Hoche
75008 Paris, France
Jean-Louis Beffa Chairman and CEO of Compagnie de France
Saint-Gobain.
Les Miroirs
92096 Paris Cedex
27, France
Edgar M. Bronfman Former Chairman of the Board of United States
Seagram.
Richard H. Brown Chairman and CEO of Electronic Data United States
Systems Corporation.
5400 Legacy Drive
Plano, Texas 75024-3199
Jean-Marc Espalioux Chairman of the Executive Board of France
Accor.
Tour Maine Montparnasse
33, avenue du Maine
75755 Paris Cedex
15, France
Philippe Foriel-Destezet Chairman of Nescofin UK Ltd. France
52, rue de la Bienfaisance
75008 Paris, France
Jacques Friedmann Retired Chairman of the Supervisory France
Board of AXA-UAP (Chairman from 1993-
2000)
80, avenue de Breteuil
75007 Paris, France
Guillaume Hannezo Senior Executive Vice President and France
CFO of Vivendi Universal
Esther Koplowitz Chairman and Member of the Board of Spain
Directors of Fomento de
Construcciones y Contratas.
Torre Picasso
Plaza Pablo Ruiz Picasso
28020 Madrid, Spain
Mario-Josee Kravis Senior Fellow, Hudson Institute United States
c/o 625 Park Avenue
New York, New York 10021
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Name and Business Principal Occupation or Employment Citizenship
Address and Business Address
Henri Lachmann Chairman and CEO of Schneider Electric France
Industries
43-45, boulevard F. Roosevelt,
92500 Rueil-Malmaison, France
Samuel Minzberg President and Chief Executive Officer Canada
of Claridge Inc.
1170 Peel Street
Montreal, Quebec H3B 4P2
Simon Murray Chairman of GEMS Ltd. U.K.
Princes House-2nd Floor
38, Jermyn Street
London SW1Y 6DT
Serge Tchuruk Chairman and CEO of Alcatel France
54, rue de la Boetie
75008 Paris, France
Rene Thomas Honorary Chairman and Director of France
Banque Nationale de Paris-PARIBAS
16, boulevard des Italiens
75009 Paris, France
Marc Vienot Honorary Chairman and Director of France
Societe Generale
Tour Societe Generale
92972 Paris La Defense
Cedex, France