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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)
UGC Europe, Inc.
(Name of Subject Company (Issuer))
Europe Acquisition, Inc.
(Name of Filing Persons (Offeror))
Common Stock, par value $0.01 per share
(Title of Class of Securities)
90268P 10 2
(CUSIP Number of Class of Securities)
Michael T. Fries
President
Europe Acquisition, Inc.
4643 South Ulster Street, Suite 1300
Denver, Colorado 80237
(303) 770-4001
(Name, address, and telephone numbers of person authorized
to receive notices and communications on behalf of filing persons)
Copy to:
Garth B. Jensen, Esq.
Holme Roberts & Owen LLP
1700 Lincoln, Suite 4100
Denver, Colorado 80203
(303) 861-7000
CALCULATION
OF FILING FEE
Transaction valuation(1)
|
|
Amount of filing fee(2)
|
| $1,260,312,858 |
|
$101,960 |
| |
|
|
| |
|
|
- (1)
- The
transaction valuation is estimated solely for purposes of calculating the filing fee pursuant to Rule 0-11(d). The calculation assumes the acquisition of each
outstanding share of common stock, par value $0.01 per share (the "UGC Europe Shares") of UGC Europe, Inc. not beneficially owned by UnitedGlobalCom, Inc. ("United") or its subsidiaries
for 10.3 shares of Class A common stock of United, par value $0.01 per share (the "United Shares"). The value of the United Shares was calculated as the product of (i) $7.36 (the average
of the high and low prices per share of the United Shares on November 6, 2003 as reported by the Nasdaq National Market) and (ii) 171,238,160 (the maximum number of United Shares
expected to be issued in connection with this transaction).
- (2)
- The
amount of the filing fee, calculated in accordance with Rule 0-11, equals $80.90 per million of the aggregate value of the United Shares offered by the bidder.
- ý
- 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: |
|
|
|
|
| |
|
$101,960
|
|
|
Form or Registration No.: |
|
Form S-4 ($71,284) and Schedule TO ($30,676)
|
|
|
Filing Party: |
|
UnitedGlobalCom, Inc. and Europe Acquisition, Inc.
|
|
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Date Filed: |
|
October 6, 2003 and November 13, 2003
|
|
|
- o
- 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:
- ý
- third-party
tender offer subject to Rule 14d-1.
- o
- issuer
tender offer subject to Rule 13e-4.
- o
- going-private
transaction subject to Rule 13e-3.
- o
- 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: o
2
This Amendment No. 4 (the "Amendment") amends and supplements the Tender Offer Statement on Schedule TO (the "Schedule TO"), filed initially with the Securities and Exchange
Commission on October 6, 2003, as amended on November 5, 2003, November 10, 2003 and November 13, 2003, by Europe Acquisition, Inc. ("Purchaser"), a Delaware
corporation and a wholly-owned indirect subsidiary of UnitedGlobalCom, Inc., a Delaware corporation ("United"), relating to the offer (the "Exchange Offer") to exchange each outstanding share
of common stock, $0.01 par value per share (the "UGC Europe Shares"), of UGC Europe, Inc., a Delaware corporation ("UGC Europe"), not owned by United or its subsidiaries for 10.3 shares
of Class A common stock, par value $0.01 per share (the "United Shares") of United, subject to certain terms and conditions.
Concurrently
with the filing of this Tender Offer Statement, United is filing Amendment No. 1 to its registration statement on Form S-4 (the "Registration
Statement") relating to the United Shares to be issued to the stockholders of UGC Europe in the Exchange Offer.
The
terms and conditions of the Exchange Offer are set forth in the prospectus that is part of the Registration Statement (the "Prospectus"), a copy of which is attached hereto as
Exhibit (a)(1), and in the related Letter of Transmittal, a copy of which is attached hereto as Exhibit (a)(2), as they may be supplemented and amended from time to time.
The
Schedule TO, as amended, is hereby amended and restated in its entirety as follows:
Item 1. Summary Term Sheet
The information set forth in the Prospectus under the caption "Chapter I—Overview—Questions and Answers for Stockholders" is incorporated
herein by reference.
Item 2. Subject Company Information
- (a)
- Name and Address. The information set forth in the Prospectus under the "Chapter III—Information About Us and UGC
Europe—UGC Europe" is incorporated herein by reference.
- (b)
- Securities. The information set forth in the Prospectus under the captions "Chapter II—The Transaction—The
Exchange Offer—Conditions of the Exchange Offer" and "Chapter V—Certain Legal Information—Description of UGC Europe's Capital Stock—Capital Stock" is
incorporated herein by reference.
- (c)
- Trading Market and Price. The information set forth in the Prospectus under the caption "Chapter
I—Overview—Comparative Per Share Market Price and Dividend Information" is incorporated herein by reference.
Item 3. Identity and Background of Filing Person.
- (a)
- Name and Address. The information set forth in the Prospectus under the caption "Chapter III—Information About Us
and UGC Europe—UGC/SPCo. and Europe Acquisition" is incorporated herein by reference.
- (b)
- Business and Background of Entities. The information set forth in the Prospectus under the captions
"Chapter III—Information About Us and UGC Europe—Our Company," "Chapter III—Information About Us and UGC Europe—Liberty Media
Corporation," "Chapter III—Information About Us and UGC Europe—UGC/SPCo. and Europe Acquisition," "Chapter III—Information About Us and UGC
Europe—Executive Officers and Directors," "Chapter III—Information About Us and UGC Europe—Incorporation of Information By Reference," and
"Chapter V—Certain Legal Information—Where You Can Find More Information" is incorporated herein by reference.
3
- (c)
- Business and Background of Natural Persons. The information set forth in the Prospectus under the caption "Chapter
III—Information About Us and UGC Europe—Executive Officers and Directors" and in "Schedule 1—Information Concerning Directors and Executive Officers" to the
Prospectus is incorporated herein by reference.
Item 4. Terms of the Transaction.
(a)(1) Tender Offers.
- (a)
- (1)(i) Number and Class of Securities. The information set forth in the Prospectus under the captions "Chapter II—The
Transaction—The Exchange Offer—Terms of the Exchange Offer," "Chapter II—The Transaction—The Exchange Offer—Conditions of the
Exchange Offer" and "Chapter II—The Transaction—The Exchange Offer—UGC Europe Capital Changes and Distributions" is incorporated herein by reference.
- (a)
- (1)(ii) Consideration. The information set forth in the Prospectus under the captions "Chapter II—The
Transaction—The Exchange Offer—Terms of the Exchange Offer" and "Chapter II—The Transaction—The Exchange Offer—UGC Europe Capital
Changes and Distributions" is incorporated herein by reference.
- (a)
- (1)(iii) Expiration. The information set forth in the Prospectus under the caption "Chapter II—The
Transaction—The Exchange Offer—Terms of the Exchange Offer" is incorporated herein by reference.
- (a)
- (1)(iv) Subsequent Offering Period. The information set forth in the Prospectus under the caption "Chapter II—The
Transaction—The Exchange Offer—Terms of the Exchange Offer" is incorporated herein by reference.
- (a)
- (1)(v) Extension. The information set forth in the Prospectus under the caption "Chapter II—The Transaction—The
Exchange Offer—Terms of the Exchange Offer" is incorporated herein by reference.
- (a)
- (1)(vi) Withdrawal. The information set forth in the Prospectus under the caption "Chapter II—The
Transaction—The Exchange Offer—Rights of Withdrawal" is incorporated herein by reference.
- (a)
- (1)(vii) Procedures for Tender and Withdrawal. The information set forth in the Prospectus under the caption "Chapter II—The
Transaction—The Exchange Offer—Procedure for Tendering Shares" is incorporated herein by reference.
- (a)
- (1)(viii) Accepting Securities for Payment. The information set forth in the Prospectus under the captions "Chapter II—The
Transaction—The Exchange Offer—Acceptance for Exchange and Exchange for UGC Europe Shares" and "Chapter II—The Transaction—The Exchange
Offer—Conditions of the Exchange Offer" is incorporated herein by reference.
- (a)
- (1)(ix) Proration. Not applicable.
- (a)
- (1)(x) Differences in Rights of Security Holders. The information set forth in the Prospectus under the caption "Chapter
V—Certain Legal Information—Comparison of the Rights of United Stockholders and UGC Europe Stockholders" is incorporated herein by reference.
- (a)
- (1)(xi) Accounting Treatment. The information set forth in the Prospectus under the caption "Chapter II—The
Transaction—The Exchange Offer—Accounting Treatment" is incorporated herein by reference.
- (a)
- (1)(xii) Material Federal Income Tax Consequences. The information set forth in the Prospectus under the captions "Chapter
II—The Transaction—The Exchange Offer—Backup
4
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
- (a)
- Transactions. The information set forth in the Prospectus under the captions "Chapter II—The
Transaction—Background—Our Relationship with UGC Europe; Reorganization of UPC," "Chapter II—The Transaction—The Exchange Offer—Modification
of Liberty Preemptive Right," "Chapter III—Information About Us and UGC Europe—Relationships with UGC Europe," "Chapter III—Information About Us and UGC
Europe—Agreements Between UGC Europe and Us" and "Chapter V—Certain Legal Information—Description of UGC Europe's Capital Stock—Stockholders Agreement"
is incorporated herein by reference.
- (b)
- Significant Corporate Events. The information set forth in the Prospectus under the captions "Chapter II—The
Transaction—Background—Our Relationship with UGC Europe; Reorganization of UPC," "Chapter II—The Transaction—The Exchange
Offer—Modification of Liberty Preemptive Right," "Chapter III—Information About Us and UGC Europe—Relationships with UGC Europe," "Chapter
III—Information About Us and UGC Europe—Agreements Between UGC Europe and Us," and "Chapter V—Certain Legal Information—Description of UGC Europe's
Capital Stock—Stockholders Agreement" is incorporated herein by reference.
Item 6. Purposes of the Transaction and Plans or Proposals.
- (a)
- Purposes. The information set forth in the Prospectus under the captions "Chapter II—The
Transaction—Background—Reasons for the Exchange Offer and the Merger," "Chapter II—The Transaction—Background—Our Board's Decision to
Commence the Exchange Offer," "Chapter II—The Transaction—The Exchange Offer—The Merger," "Chapter II—The Transaction—The Exchange
Offer—Structure of the Exchange Offer and the Merger," "Chapter II—The Transaction—Certain Considerations Relating to the Exchange Offer and the
Merger—Certain Effects If We Complete the Exchange Offer and the Merger," and "Chapter II—The Transaction—Certain Considerations Relating to the Exchange Offer and
the Merger—Possible Alternative Transactions if We do not Complete the Exchange Offer" is incorporated herein by reference.
- (c)
- (1)-(7) Plans. The information set forth in the Prospectus under the captions "Chapter II—The
Transaction—Background—Reasons for the Exchange Offer and the Merger," "Chapter II—The Transaction—Background—Our Board's Decision to
Commence the Exchange Offer," "Chapter II—The Transaction—The Exchange Offer—The Merger," "Chapter II—The Transaction—The Exchange
Offer—Structure of the Exchange Offer and the Merger," "Chapter II—The Transaction—Certain Considerations Relating to the Exchange Offer and the
Merger—Certain Effects If We Complete the Exchange Offer and the Merger," and "Chapter II—The Transaction—Certain Considerations Relating to the Exchange Offer and
the Merger—Possible Alternative Transactions if We do not Complete the Exchange Offer" is incorporated herein by reference.
Item 7. Source and Amount of Funds and Other Consideration.
- (a)
- Source of Funds. The information set forth in the Prospectus under the caption "Chapter II—The Transaction—The
Exchange Offer—Source and Amount of Funds" is incorporated herein by reference.
5
- (b)
- Conditions. Not applicable.
- (d)
- Borrowed Funds. Not applicable.
Item 8. Interest in Securities of the Subject Company.
- (a)
- Securities Ownership. The information set forth in the Prospectus under the captions "Chapter II—The
Transaction—The Exchange Offer—Structure of the Exchange Offer and the Merger," "Chapter II—The Transaction—The Exchange Offer—Modification
of Liberty Preemptive Right," "Chapter III—Information About Us and UGC Europe—Relationships with UGC Europe" and "Chapter V—Certain Legal
Information—Description of UGC Europe's Capital Stock—Stockholders Agreement" is incorporated herein by reference.
- (b)
- Securities Transactions. The information set forth in the Prospectus under the captions "Chapter II—The
Transaction—The Exchange Offer—Modification of Liberty Preemptive Right" and "Chapter III—Information About Us and UGC Europe—Relationships with UGC
Europe" is incorporated herein by reference.
Item 9. Person/Assets, Retained, Employed, Compensated or Used.
- (a)
- Solicitations or Recommendations. The information set forth in the Prospectus under the caption "Chapter II—The
Transaction—The Exchange Offer—Fees and Expenses" is incorporated herein by reference.
Item 10. Financial Statements.
- (a)
- Financial Information. The information set forth in the Prospectus under the captions "Chapter
I—Overview—Summary—Summary Selected Historical Consolidated Financial Data of United" and "Chapter III—Information About Us and UCG
Europe—Incorporation of Information By Reference" is incorporated herein by reference.
- (b)
- Pro Forma Information. The information set forth in the Prospectus under the captions "Chapter
I—Overview—Summary—Summary Selected Unaudited Pro Forma Condensed Consolidated Financial Information of United" and "Chapter IV—Selected Financial
Information—Unaudited Pro Forma Condensed Consolidated Financial Information" is incorporated herein by reference.
Item 11. Additional Information.
(a) Agreements, Regulatory Requirements and Legal Proceedings.
- (a)
- (1) Material Agreements. The information set forth in the Prospectus under the captions "Chapter I—Overview—Risk
Factors," "Chapter I—Overview—Forward Looking Statements" and "Chapter III—Information About Us and UGC Europe—Other Relationships" and in
"Schedule 2—Information Concerning Certain Relationships Among Us, Liberty and UGC Europe" to the Prospectus is incorporated herein by reference.
- (a)
- (2)-(3) Regulatory Requirements; Anti-Trust Laws. The information set forth in the Prospectus under the captions "Chapter
II—The Transaction—The Exchange Offer—Conditions of the Exchange Offer" and "Chapter II—The Transaction—The Exchange
Offer—Regulatory Approvals" is incorporated herein by reference.
- (a)
- (4) Margin Requirements. Not applicable.
6
- (a)
- (5) Legal Proceedings. The information set forth in the Prospectus under the caption "Chapter II—The
Transaction—Background—Stockholder Litigation" is incorporated herein by reference.
- (b)
- Other Material Information. The information set forth in the Prospectus and the appendices thereto is incorporated herein by reference.
Item 12. Exhibits.
The following are attached as exhibits to this Schedule TO:
Exhibit
Number
|
|
Exhibit Description
|
| (a)(1) |
|
Prospectus relating to United Shares to be issued in the Exchange Offer (incorporated by reference from Amendment No. 1 to United's Registration Statement on Form S-4 filed on November 26, 2003). |
| (a)(2) |
|
Letter of Transmittal. |
| (a)(3) |
|
Notice of Guaranteed Delivery. |
| (a)(4) |
|
Letter to brokers, dealers, commercial banks, trust companies and other nominees. |
| (a)(5) |
|
Letter to be used by brokers, dealers, commercial banks, trust companies and other nominees to their clients. |
| (a)(6) |
|
Press release issued by United on October 6, 2003.* |
| (a)(7) |
|
Press release issued by United on November 4, 2003 (incorporated by reference from United's current report on Form 8-K dated November 4, 2003). |
| (a)(8) |
|
Press release issued by United on November 7, 2003 (incorporated by reference from United's current report on Form 8-K dated November 7, 2003). |
| (a)(9) |
|
Press release issued by United on November 12, 2003 (incorporated by reference from United's current report on Form 8-K dated November 12, 2003). |
| (b) |
|
None. |
| (d)(1) |
|
Founders Agreement with respect to UnitedGlobalCom, Inc. (formerly known as New UnitedGlobalCom, Inc.), dated January 30, 2002 (incorporated by reference from United's Registration Statement on Form S-1 dated February 14,
2002 (File No. 333-82776)). |
| (d)(2) |
|
Stockholders Agreement among UnitedGlobalCom, Inc. (formerly known as New UnitedGlobalCom, Inc.), Liberty Media Corporation, Liberty Global, Inc., Liberty UCOMA, LLC and each of the Persons identified on the signature
pages thereto as a "Founder," dated January 30, 2002 (incorporated by reference from United's Registration Statement on Form S-1 dated February 14, 2002 (File No. 333-82776)). |
| (d)(3) |
|
Share Exchange Agreement, dated August 18, 2003, by and among certain of United's founding stockholders and Liberty Media Corporation (incorporated by reference from that certain Schedule 13D/A filed by such founding
stockholders on August 21, 2003). |
| (d)(4) |
|
Stockholders Agreement dated as of April 16, 2003, by and among UGC Europe, Inc., UnitedGlobalCom, Inc., and the holders of Common Stock that have executed and delivered a joinder on or prior to April 29, 2003
(incorporated by reference from UGC Europe's Current Report on Form 8-K dated September 3, 2003). |
| (d)(5) |
|
Letter Agreement, dated November 12, 2003, by and between United and Liberty Media Corporation (incorporated by reference from United's current report on Form 8-K dated November 12, 2003). |
| (g) |
|
None. |
| (h) |
|
None. |
- *
- Previously
filed.
Item 13. Information Required by Schedule 13E-3.
Not applicable.
7
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Amendment No. 4 to Schedule TO is true,
complete and correct.
|
|
EUROPE ACQUISITION, INC. |
|
|
By: |
|
/s/ FREDERICK G. WESTERMAN III
|
| |
|
Name: |
|
Frederick G. Westerman III |
| |
|
Title: |
|
Vice President and Treasurer |
Date:
November 26, 2003
8
EXHIBIT INDEX
Exhibit
Number
|
|
Exhibit Description
|
| (a)(1) |
|
Prospectus relating to United Shares to be issued in the Exchange Offer (incorporated by reference from Amendment No. 1 to United's Registration Statement on Form S-4 filed on November 26, 2003). |
| (a)(2) |
|
Letter of Transmittal. |
| (a)(3) |
|
Notice of Guaranteed Delivery. |
| (a)(4) |
|
Letter to brokers, dealers, commercial banks, trust companies and other nominees. |
| (a)(5) |
|
Letter to be used by brokers, dealers, commercial banks, trust companies and other nominees to their clients. |
| (a)(6) |
|
Press release issued by United on October 6, 2003. * |
| (a)(7) |
|
Press release issued by United on November 4, 2003 (incorporated by reference from United's current report on Form 8-K dated November 4, 2003). |
| (a)(8) |
|
Press release issued by United on November 7, 2003 (incorporated by reference from United's current report on Form 8-K dated November 7, 2003). |
| (a)(9) |
|
Press release issued by United on November 12, 2003 (incorporated by reference from United's current report on Form 8-K dated November 12, 2003). |
| (b) |
|
None. |
| (d)(1) |
|
Founders Agreement with respect to UnitedGlobalCom, Inc. (formerly known as New UnitedGlobalCom, Inc.), dated January 30, 2002 (incorporated by reference from United's Registration Statement on Form S-1 dated February 14,
2002 (File No. 333-82776)). |
| (d)(2) |
|
Stockholders Agreement among UnitedGlobalCom, Inc. (formerly known as New UnitedGlobalCom, Inc.), Liberty Media Corporation, Liberty Global, Inc., Liberty UCOMA, LLC and each of the Persons identified on the signature
pages thereto as a "Founder," dated January 30, 2002 (incorporated by reference from United's Registration Statement on Form S-1 dated February 14, 2002 (File No. 333-82776)). |
| (d)(3) |
|
Share Exchange Agreement, dated August 18, 2003, by and among certain of United's founding stockholders and Liberty Media Corporation (incorporated by reference from that certain Schedule 13D/A filed by such founding
stockholders on August 21, 2003). |
| (d)(4) |
|
Stockholders Agreement dated as of April 16, 2003, by and among UGC Europe, Inc., UnitedGlobalCom, Inc., and the holders of Common Stock that have executed and delivered a joinder on or prior to April 29, 2003
(incorporated by reference from UGC Europe's Current Report on Form 8-K dated September 3, 2003). |
| (d)(5) |
|
Letter Agreement, dated November 12, 2003, by and between United and Liberty Media Corporation (incorporated by reference from United's current report on Form 8-K dated November 12, 2003). |
| (g) |
|
None. |
| (h) |
|
None. |
- *
- Previously
filed.
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EXHIBIT INDEX