SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 3)
(Name of Subject Company (Issuer))
UNV ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
UNITED NEWVENTURES, INC.
(Name of Filing Persons (Offeror))
Common Stock, Par Value $.001 Per Share
Rights to Purchase Series A Participating Preferred Stock
(Title of Class of Securities)
(CUSIP Number of Class of Securities)
Francesca M. Maher
Senior Vice President, General
Counsel and Secretary
1200 E. Algonquin Rd.
Elk Grove Township, IL 60007
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Filing Person(s))
Elizabeth A. Raymond
Marc F. Sperber
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603-3441
CALCULATION OF FILING FEE
Transaction Valuation* Amount of Filing Fee
* Estimated for purposes of calculating the amount of the filing fee only.
This calculation assumes (a) the purchase of all of the issued and outstanding
shares of common stock, par value $.001 per share of MyPoints.com, Inc., a
Delaware corporation (the "Company"), together with the associated preferred
stock purchase rights issued pursuant to the Preferred Stock Rights Agreement,
dated as of December 13, 2000, between the Company and Wells Fargo Shareholder
Services, as rights agent (the "Shares"), at a price per Share of $2.60 in cash.
As of June 1, 2001, based on the Company's representation of its capitalization
as of such date, there were 40,757,079 Shares outstanding. The amount of the
filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange
Act of 1934, equals 1/50th of one percent of the value of the Shares proposed to
[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: $21,194.00 Filing Party: United NewVentures, Inc.
and UNV Acquisition Corp.
Form or Registration No.: Schedule TO Date Filed: June 13, 2001
[_] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes to designate any transactions to which this
[X] third party tender offer [_] going-private transaction
subject to Rule 14d-1 subject to Rule 13e-3
[_] issuer tender offer [_] amendment to Schedule 13D
subject to Rule 13e-4 under Rule 13d-2
Check the following box if the filing is a final amendment reporting the results
of the tender offer: [_]
Amendment No. 3 to Schedule TO
This Amendment No. 3 amends and supplements the Tender Offer Statement on
Schedule TO (the "Schedule TO") filed initially with the Securities and Exchange
Commission on June 13, 2001 by United NewVentures, Inc., a Delaware corporation
("Parent") and UNV Acquisition Corp., a Delaware corporation ("Sub") and a
wholly owned subsidiary of Parent relating to the tender offer (the "Offer") by
Sub to purchase all of the Shares of the Company, at a price per Share of $2.60
(the "Offer Price"), net to the seller in cash, without interest, upon the terms
and subject to the conditions set forth in the Offer to Purchase, dated June 13,
2001 (the "Offer to Purchase") and in the related Letter of Transmittal ( the
"Letter of Transmittal" which, together with the Offer to Purchase, as each may
be amended or supplemented from time to time, collectively constitute the
"Offer"), copies of which were filed as Exhibits (a)(1)(i) and (a)(1)(ii),
respectively, to the Schedule TO. Terms not otherwise defined shall have the
meanings assigned to such terms in the Offer to Purchase or in the Schedule TO.
Item 6 Purposes of the Transaction and Plans or Proposals
The disclosure under the heading "Purpose of the Offer; Plans for the Company"
on page 20 of the Offer to Purchase is hereby amended by inserting after the
second paragraph under such heading the following new paragraphs:
"In early February 2001, an unaffiliated third-party engaged Parent in
discussions regarding such third-party's potential acquisition of the
Company. On February 5, 2001, the third-party entered into an agreement
with Parent outlining the terms of a business relationship in which Parent
would purchase equity in and agree to operate the Company after the third-
party completed its acquisition of the Company.
On April 5, 2001, the third-party entered into another agreement with
Parent which superceded the terms of the February 5, 2001 agreement in its
entirety. This agreement outlined the terms of a reduced business
relationship in which Parent would purchase the equity of and agree to
operate the Company after the third-party completed its acquisition of the
After April 5, 2001, Parent decided to pursue a direct acquisition of the
Company, entered into a letter of intent with the Company on April 30,
2001, and executed the Merger Agreement on June 1, 2001. The third-party
contacted Parent in late June 2001 to assert that the April 5, 2001
agreement was orally modified to permit Parent to acquire the Company
without the third party's participation only if Parent granted the third
party, upon the payment of $10 million, certain rights set forth in the
agreement with respect to the marketing of its products and services to the
Company's members. The third party also asserted that, if the alleged oral
modification were unenforceable, the April 5, 2001 agreement would prevent
Parent from acquiring the Company without the third party's participation.
Parent disagrees with the third-party's assertions, including its assertion
that there exists an enforceable oral modification to the agreement.
Parent believes that the acquisition falls outside the terms of the April
5, 2001 agreement, and therefore that the agreement does not prohibit
Parent from acquiring the Company without the third party's participation
and does not grant the third-party rights to participate in the acquisition
of or investment in the Company or to market the third-party's products and
services to the Company's members after the Merger. For the same reason,
Parent believes that the April 5, 2001 agreement will not prevent
consummation of the Merger Agreement."
Item 12. Exhibits
Item 12 of the Schedule TO is hereby amended and supplemented to include the
"(d)(10) Letter Agreement, dated April 5, 2001, by and between Parent and
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.
UNV ACQUISITION CORP.
By: /s/ Richard J. Poulton
Name: Richard J. Poulton
Title: Chief Financial Officer
UNITED NEWVENTURES, INC.
By: /s/ Richard J. Poulton
Name: Richard J. Poulton
Title: Chief Financial Officer
Dated: July 5, 2001
(d)(10) Letter Agreement, dated April 5, 2001, by and between Parent and
April 5, 2001
Douglas A. Hacker
United New Ventures, Inc.
P.O. Box 66100 - WHQUV
Chicago, IL 60666
Re: Proposed Transaction
Dear Mr. Hacker:
This letter shall set forth the mutual understanding of OurHouse, Inc.
("OurHouse") and United NewVentures, Inc. ("UAL") regarding the development of a
business relationship for UAL to operate and participate in the ownership of
MyPoints.com, Inc. (the "Transaction"), following an acquisition of
MyPoints.com, Inc. ("Blue") by OurHouse. This letter hereby modifies and
replaces in entirety the provisions of the letter dated February 5, 2001,
between OurHouse and UAL regarding the same Proposed Transaction.
1. Post-Acquisition ownership of Blue. (a) Upon a successful acquisition of
Blue, OurHouse will arrange to make a cash distribution from Blue to OurHouse,
or its designee, of an amount equal to the lesser of: (i) $70 million dollars;
and (ii) the aggregate offering price paid for the acquisition of Blue minus $20
However, to the extent the aggregate offering price is lower than $90 million
dollars, OurHouse will be entitled to increase the amount of its cash
distribution, on a dollar for dollar basis for every dollar below $90 million,
up to a maximum of $5 million dollars of additional cash distribution.
(b) Immediately following the distribution specified in paragraph (a)
above, UAL will purchase from OurHouse all of the outstanding shares of Blue
held by OurHouse for $10 million dollars.
(c) At its sole discretion, UAL will have the right to name a successor CEO
for Blue as well as any other senior management positions at Blue. Additionally,
UAL will be able to operate Blue at its discretion subject to the Operating
Agreements to be mutually agreed to by the parties (detailed below). Any sale of
Blue or change in Blue's business shall be subject to Blue's obligations under
the Operating Agreements.
2. Post-Acquisition Operating Agreements. (a) Our House and UAL will receive
the following rights in respective operating agreements that shall cover the
specific nature of how post-acquisition Blue would provide services to OurHouse
and UAL (the "Operating Agreements").
1. UAL will have unlimited access to the entire Blue marketing database
2. UAL shall be permitted to market directly to the entire Blue member
database with a maximum number of emails per member per week to be
determined (e.g., one per week - subject to consideration of member
3. UAL shall determine under what terms it will make Blue Points
convertible into MileagePlus miles or other travel related benefits,
and offer such conversion option to the public within 90 days
following the closing of the Transaction.
4. UAL shall receive prominent promotional placement on the Blue website.
5. UAL shall be able to determine all day-to-day operating decisions at
6. UAL shall have the ability to mail directly to the entire Blue member
7. OurHouse shall be entitled to have Blue distribute email promotions to
all Blue members who have opted in or who have not opted out for
receipt of email program under Blue's current email program (or
similar successor program). A successor program will be any program
controlled by UAL which employs more than 20% of the employees or
other tangible assets of Blue as of the acquisition date, or whose
membership base contains more than 40% of the Blue membership base
that existed as of the acquisition date. For purposes of computing the
above membership base limitation in another program (the "Second
Program"), all members of Blue as of the acquisition date who were
also members of the Second Program as of the acquisition date will be
excluded from the calculation.
8. OurHouse will have the ability to send an email message to each of the
above members on per week (including both existing members and all
9. Periodically (but at least quarterly), Blue shall provide to OurHouse
data segmentation analyses for the purpose of allowing OurHouse to
prepare specific distinct messages for each separate cohort. Such
analyses will not include information that Blue management reasonably
believes may jeopardize the value of the Blue membership base if
10. OurHouse shall be able to determine all future point awards for member
actions in response to OurHouse marketing activities subject to the
following limitation: OurHouse shall be limited in its issuance of
points for consumers to visit its site to levels commensurate with
other Blue advertising clients requesting consumers to complete
11. OurHouse shall pay actual cost to Blue for all points redeemed from
OurHouse and OurHouse partner marketing activities. OurHouse agrees
that an inventory attribution approach such as LIFO or FIFO will be
used to determine how many OurHouse issued points have been redeemed.
OurHouse shall be a redemption partner of Blue and shall be able to
its own redemption levels for points (cost for points to be negotiated
but currently estimated to be .88 cents per point).
12. OurHouse shall be able to purchase incremental 3rd party emails from
Blue at Blue's best negotiated rate.
13. OurHouse will receive promotional placement/tiles on each of Blue's
website pages contained in the Home and Garden category of the
Shopping section. Additionally, OurHouse will be included in the
rotating tiles featured on Blue's home page.
14. OurHouse shall promote Blue on its website.
(b) The Operating Agreements shall have a perpetual term and will be
transferable to any successor owner/operator of Blue unless otherwise mutually
agreed between UAL and OurHouse. Both OurHouse and UAL shall reimburse Blue for
the actual marginal costs incurred for supporting their respective Operating
(c) The Operating Agreements shall contain the agreement of each party not
to compete with the business of Blue following the proposed acquisition, except
that both parties acknowledge that UAL will continue to operate and promote its
Mileage Plus Program and any similar program without restriction. The Operating
Agreements shall also contain the agreement of each party to comply with all
applicable laws regarding privacy and each party's rights with respect to Blue's
which would limit or restrict the performance of the Operating Agreements unless
(i) required by law or (ii) mutually agreed upon by UAL and OurHouse. The
parties agree to negotiate in good faith the terms and conditions of the
Operating Agreements. Subsequent to completion of the Operating Agreement,
OurHouse shall not have the right to assign the Operating Agreement in
connection with the sale of its business within 6 months of the signing of this
agreement unless expressly approved in advance by UAL, whose approval shall not
be unreasonably withheld. Furthermore, OurHouse shall be precluded from a sale
of all or any portion of its equity or assets to any direct competitor of United
Airlines (e.g., American Airlines, Delta Airlines).
(d) The provisions of the Operating Agreements outlined above will be
applied, without modification, even if UAL, in its sole discretion, decides to
participate in the direct acquisition of Blue (the "Acquisition Contribution"),
provided the amount of such Acquisition Contribution does not exceed $20 million
dollars, and provided that OurHouse complies with all other terms and conditions
outlined in this letter. The parties acknowledge that such an Acquisition
Contribution is not contemplated by this letter, and the above provision in no
way commits UAL to participate in the Transaction through such an Acquisition
3. Post-Acquisition Strategy. Notwithstanding its sole right to develop,
modify and operate Blue under any strategy it feels is appropriate (subject to
the Operating Agreements), UAL intends to deliver significant value to Blue
through the following initiatives which will be adopted shortly after its
investment in Blue:
. Drive certain members of its Mileage Plus program to register with Blue
. Create travel redemption opportunities for Blue either through direct
convertibility into its Mileage Plus program or through other travel
. Leverage its off-line relationships to both identify new strategic
partners and help Blue develop a strategy for offline penetration
. Review other opportunities for cost synergies, while still operating Blue
as a separate stand-alone business
The initial intent is to create a vibrant business that will operate independent
of UAL's Mileage Plus Program.
4. Public Disclosure. Neither party will make any public disclosure of, or
otherwise disclose to any person (other than its officers, employees,
accountants, attorneys and agents whose duties require them to have access to
such information), the existence or terms of the Transaction or this letter
without the other party's prior written consent, unless disclosure is required
by law. The parties will consult with each other prior to making any public
announcement regarding the Transaction or this letter, provided however that
OurHouse may disclose the Transaction to Blue's management and/or Board of
Directors in connection with its acquisition of the company. Any disclosure
permitted under Section 7 of this letter shall not be considered a public
disclosure under this Section.
5. Fees and Expenses. Each party will bear its own respective expenses and
legal fees incurred with respect to the Transaction except as provided below.
Each party will bear one-half of the collective legal expenses incurred for
completion of definitive documentation related to the acquisition of Blue,
subsequent sale of interests to UAL, and completion of respective Operating
6. Term. This letter is effective as of the date first written above, and
shall expire on the earlier of (i) four (4) months after such date or (ii) the
date mutually agreed upon in writing by UAL and OurHouse. Sections 7 through 12
of this letter shall survive termination for three (3) years.
7. Confidential Information. Either party hereto (the "disclosing party") may
from time to time furnish to the other party (the "receiving party") information
or other material, oral, visual, written or electronic pertaining to the
disclosing party which the disclosing party deems proprietary and confidential
8. Non-Disclosure. The receiving party shall treat all Confidential
Information provided by the disclosing party as proprietary and confidential and
the receiving party shall not disclose such information to any third party
except the receiving party's current employees, officers, directors, agents or
advisors (collectively "Representatives") who have a need to know such
information in connection with the Transaction or as specifically permitted
hereunder, unless and until the receiving party has obtained the prior written
consent of the disclosing party. The receiving party shall safeguard all
Confidential Information with at least the same degree of care to avoid
disclosure as the receiving party uses to protect its own proprietary and
confidential information, but no
less than reasonable care. The receiving party and its Representatives shall not
use any Confidential Information other than in connection with the Transaction
and shall not knowingly or negligently use such information for their own
benefit or the benefit of others.
9. Ownership. All Confidential Information and any copies thereof is and shall
remain the property of the disclosing party and shall be promptly returned to
the disclosing party or destroyed by the receiving party upon the disclosing
party's written request. Nothing contained in this Agreement shall be construed
as granting or conferring any patent, copyright, trademark, or other proprietary
10. Exclusions. Notwithstanding anything herein to the contrary:
(a) The parties agree that documentation and information will not be deemed
Confidential Information, and the receiving party will have no obligation with
respect to any such information, where such documentation and information (i)
was in the public domain prior to the effective date of this letter or
subsequently came into the public domain other than as a result of disclosure by
the receiving party, (ii) is independently developed by the receiving party,
(iii) is approved for release by written authorization of the disclosing party,
(iv) is disclosed to the receiving party from a source other than the disclosing
party without similar restriction and without breach of this letter, (v) is
furnished to a third party by the disclosing party without a similar restriction
on the third party's rights, or (vi) is required to be disclosed by a judicial
or administrative law, regulation or proceeding after all reasonable legal
remedies for maintaining such information in confidence have been exhausted,
including, without limitation, giving the disclosing party reasonable advance
notice of the potential for such disclosure and allowing the disclosing party
the opportunity to seek a protective order concerning such disclosure.
(b) The receiving party may use Residuals for any purpose, including
without limitation use in development, creation, promotion, sale, and
maintenance of products and services; provided that this right to Residuals does
not represent a license under any patents, copyrights, or other intellectual
property rights of the disclosing party. The term "Residuals" means any
information retained in the unaided memories of the receiving party's
representatives who have had access to the disclosing party's Confidential
Information pursuant to the terms of this letter. A representative's memory is
unaided if the representative has not intentionally memorized the Confidential
Information for the purpose of retaining and subsequently using or disclosing it
in a manner contrary to this letter.
11. Disclosure. (a) Disclosure of any Confidential Information provided
hereunder may be made by the receiving party only with the prior written consent
of the disclosing party unless otherwise specifically permitted hereunder. In
each request for consent, the receiving party shall provide the disclosing party
with (i) the name, occupation, and title of the party to whom the receiving
party wishes to disclose such information, (ii) the purpose of the disclosure,
and (iii) an executed original of a confidentiality statement, in a format
acceptable to the disclosing party, signed by such person acknowledging that the
party signing the document is aware of the confidentiality requirements
hereunder, agrees to be bound by them, and understands that the confidentiality
requirements inure to the benefit of the disclosing party and may be enforced by
the disclosing party.
(b) If the receiving party or any of its employees, officers, directors, or
agents is served with a subpoena or other process requiring the production or
disclosure of Confidential Information, then the person or entity receiving such
subpoena or other process, before complying with such subpoena or other process,
shall immediately notify the disclosing party of same and permit the disclosing
party a reasonable period of time to intervene and contest such disclosure or
12. Right to Injunction. The receiving party acknowledges that any failure by
the receiving party to maintain the confidentiality of the Confidential
Information will have a direct and severe adverse impact on the disclosing
party's business which will subject the disclosing party to irreparable harm,
and that the disclosing party may, without jeopardizing any other rights or
remedies the disclosing party may have, seek a court order or injunction without
further notice to protect the confidentiality of its information and to halt any
authorized disclosure thereof.
13. Notices. All notices permitted or required under this letter shall be in
writing, delivered by hand or mailed by certified United States mail, return
receipt requested, or by a nationally recognized overnight courier to the
address first written above. All notices shall be effective upon receipt or upon
attempted delivery where delivery is refused or mail is unclaimed.
14. No Waiver. No waiver by either party of any default or breach by the other
party of any provision of this letter will operate as or be deemed a waiver of
any subsequent default or breach.
15. Assignment. Neither party may assign or otherwise transfer any of its
rights or obligations under this letter to any third party without the prior
written consent of the other party. For purposes hereof, the term "third party"
shall not include an affiliate of either party. No permitted assignment shall
relieve a party of its obligations hereunder with respect to Confidential
Information disclosed prior to the assignment. Any assignment in violation
hereof shall be deemed null and void.
16. Entire Agreement. This letter constitutes the entire agreement and
understanding of the parties on the subject matter hereof and supersedes all
prior communications, agreements, and understandings, whether written or oral,
relating thereto. This letter may be modified only by further written agreement
dated even herewith or subsequent hereto and signed on behalf of each party by
its respective duly authorized representative.
17. Headings. This headings contained in this letter are provided for
convenient reference only and are not intended to define, alter or limit the
scope of any provision of this letter.
18. Governing Law. This letter and any dispute arising under or in connection
with this letter, including any action in tort, will be governed and construed
by the laws of the
State of Illinois U.S.A., without regard to any conflicts of laws principles
which may direct the application of laws of any other jurisdiction.
19. Counterparts. This letter may be executed in any number of counterparts,
each of which shall be deemed an original and together which shall constitute
one and the same.
Please acknowledge your agreement with the foregoing by signing a copy of this
letter where indicated and returning the singed copy to me via fax.
/s/ Peter Stelian
AGREED TO AS OF THIS
8th DAY OF April, 2001:
United New Ventures, Inc.
By: /s/ Douglas A. Hacker
Douglas A. Hacker, President