SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Rule 14d-100)
Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 2)
METRO-GOLDWYN-MAYER INC.
(Name of Subject Company (Issuer))
TRACINDA CORPORATION
KIRK KERKORIAN
(Name of Filing Persons (Offerors))
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
591610100
(CUSIP Number of Class of Securities)
Richard E. Sobelle, Esq.
Tracinda Corporation
150 South Rodeo Drive, Suite 250
Beverly Hills, California 90212
(310) 271-0638
Copy to:
Jeffrey Bagner, Esq.
Warren S. de Wied, Esq.
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
(212) 859-8000
(Name, Address and Telephone Numbers of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
CALCULATION OF FILING FEE
Transaction Valuation* Amount of Filing Fee**
--------------------- --------------------
$240,000,000 $19,416
* Estimated for purposes of calculating the amount of filing fee only.
Transaction value derived by multiplying 15,000,000 shares of the
subject company (number of shares sought) by $16.00 (the purchase
price per share offered by the Purchasers (as defined below)).
** The amount of the filing fee, calculated in accordance with Rule 0-11
of the Securities Exchange Act of 1934, as amended, and Fee Advisory
#11 for Fiscal Year 2003 issued by the Securities and Exchange
Commission on February 21, 2003, equals $80.90 per million of the
aggregate amount of the cash offered by Tracinda Corporation
("Tracinda") and Kirk Kerkorian ("Mr. Kerkorian" together with
Tracinda, the "Purchasers").
[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: $19,416 Filing Party: Tracinda Corporation
Kirk Kerkorian
Form or Registration Number: Schedule To-T Date Filed: August 21, 2003
[_] 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: [_]
This Amendment No. 2 (this "Amendment"), filed in response to comments
raised by the staff of the Securities and Exchange Commission's Division of
Corporation Finance, amends and supplements the Tender Offer Statement on
Schedule TO originally filed with the Securities and Exchange Commission on
August 21, 2003, as amended by Amendment No. 1 filed on August 21, 2003 (as
amended, the "Schedule TO") by Tracinda Corporation and Kirk Kerkorkian
(collectively, the "Purchasers") relating to a tender offer by the
Purchasers for up to 15,000,000 shares of common stock, par value $.01 per
share (the "shares"), of Metro-Goldwyn-Mayer Inc., a Delaware Corporation,
at a purchase price of $16.00 per share, net to the seller in cash, on the
terms and subject to the conditions set forth in an Offer to Purchase,
dated August 21, 2003, and in the related letter of transmittal.
ITEMS 1 THROUGH 11.
Items 1 through 11 of the original Schedule TO, which incorporate by
reference the information contained in the Offer to Purchase and the
related letter of transmittal, copies of which are filed with the original
Schedule TO as Exhibits (a)(1) and (a)(2), respectively, are hereby amended
as follows:
(1) The first paragraph on page 1 of the Offer to Purchase, under the
caption "SUMMARY TERM SHEET," is amended to read as follows:
Tracinda Corporation, a Nevada corporation wholly owned by Kirk
Kerkorian, and Kirk Kerkorian are offering to purchase up to a
total of 15,000,000 shares of common stock of Metro-Goldwyn-Mayer
Inc. for $16.00 per share in cash. Our offer is subject to the
terms and conditions set forth in this offering document and in
the related letter of transmittal. Tracinda Corporation and Mr.
Kerkorian are referred to as "we," "our" or "us." We refer to the
shares of common stock of Metro-Goldwyn-Mayer Inc. as "shares."
Under the terms of our offer, Tracinda Corporation will purchase
up to 5,000,000 shares and Kirk Kerkorian will purchase up to
10,000,000 shares. We reserve the right to reallocate between us
the 15,000,000 shares to be purchased pursuant to our offer. The
following summary highlights selected information from this
offering document. We urge you to read the remainder of this
offering document and the accompanying letter of transmittal
carefully, because the information in the summary is not complete
and the remainder of this offering document and the letter of
transmittal contain additional important information.
(2) The first paragraph under the caption "INTRODUCTION" of the Offer to
Purchase is amended to read as follows:
Tracinda Corporation, a Nevada corporation wholly owned by Kirk
Kerkorian ("Tracinda"), and Kirk Kerkorian ("Mr. Kerkorian" and
together with Tracinda, the "Purchasers" and also referred to as
"we," "our" or "us") hereby offer to purchase in the aggregate up
to 15,000,000 of the outstanding shares of common stock, par
value $.01 per share (the "shares"), of Metro-Goldwyn-Mayer Inc.,
a Delaware corporation ("MGM" or "the Company"), at a purchase
price of $16.00 per share, net to the seller in cash (subject to
applicable withholding of United States federal, state and local
taxes), without interest thereon, on the terms and subject to the
conditions set forth in this Offer to Purchase and in the related
letter of transmittal (which, together with any amendments or
supplements hereto or thereto, collectively constitute the
"Offer"). Under the terms of the Offer, Tracinda will purchase up
to 5,000,000 shares accepted for payment under the Offer, and Mr.
Kerkorian will purchase up to 10,000,000 shares accepted for
payment under the Offer. We reserve the right to reallocate
between us the 15,000,000 shares to be purchased pursuant to the
Offer. In this Offer to Purchase, references to sections are to
sections hereof unless otherwise indicated.
(3) The second and third sentences of the first paragraph under the
caption "SECTION 1. TERMS OF THE OFFER; PRORATION" of the Offer to
Purchase are amended to read as follows:
Tracinda will purchase up to 5,000,000 shares, and Mr. Kerkorian
will purchase up to 10,000,000 shares. If fewer than 15,000,000
shares are tendered by MGM stockholders and accepted for payment
under the Offer, Mr. Kerkorian will purchase two-thirds of the
tendered shares, and Tracinda will purchase one-third of the
tendered shares.
(4) The second sentence under the caption "SECTION 3. WITHDRAWAL RIGHTS"
of the Offer to Purchase is amended by replacing the date "November
13, 2003" with the date "October 19, 2003."
(5) The second sentence of the first paragraph under the caption "SECTION
4. ACCEPTANCE FOR PAYMENT AND PAYMENT" of the Offer to Purchase is
amended by deleting the phrase "in our sole discretion" and
substituting the phrase "in our reasonable discretion."
(6) The fourth sentence of the first paragraph under the caption "SECTION
4. ACCEPTANCE FOR PAYMENT AND PAYMENT" of the Offer to Purchase is
amended by deleting the phrase "in order to comply in whole or in part
with any applicable law" and substituting the phrase "until
satisfaction of all conditions to the Offer relating to governmental
or regulatory approvals."
(7) The first sentence of the last paragraph on page 13, under the caption
"SECTION 5. U.S. FEDERAL INCOME TAX CONSEQUENCES," of the Offer to
Purchase is amended to read as follows:
THE SUMMARY OF TAX CONSEQUENCES SET FORTH ABOVE IS BASED ON THE
LAW IN EFFECT ON THE DATE HEREOF.
(8) The first paragraph under the caption "SECTION 10. SOURCE AND AMOUNT
OF FUNDS" of the Offer to Purchase is amended to read as follows:
If we purchase 15,000,000 shares pursuant to the Offer at $16.00
per share, our aggregate cost will be $240,000,000, not including
fees and expenses which are estimated to be approximately
$500,000. Of the up to 15,000,000 shares sought in the Offer,
Tracinda will purchase one-third of such shares, and Mr.
Kerkorian will purchase the remaining two-thirds. We will each
provide funds in the same proportion that the number of shares
purchased by each of us bears to the aggregate number of shares
purchased pursuant to the Offer. We reserve the right to
reallocate between us the shares to be purchased pursuant to the
Offer. See Section 1, "Terms of the Offer; Proration." The Offer
is not conditioned on any financing arrangements.
(9) The third paragraph on page 17 under the caption "SECTION 11.
BACKGROUND AND PURPOSE OF THE OFFER; PLANS FOR MGM" of the Offer to
Purchase is amended by adding to the end of the paragraph the
following three sentences:
"In addition, as described above, in the past we have supported
MGM's efforts to raise equity financing, including participating
in rights offerings by MGM and in financing acquisitions by MGM.
Subject to the foregoing investment considerations, we may from
time to time consider acquisitions of additional shares of MGM in
order to support its efforts to raise equity financing, including
in connection with potential acquisitions of assets or businesses
by MGM. However, we do not have any present intention to make
additional purchases of shares of MGM."
(10) The fourth paragraph on page 17 under the caption "SECTION 11.
BACKGROUND AND PURPOSE OF THE OFFER; PLANS FOR MGM" of the Offer to
Purchase is amended to read as follows:
In recent months, we have actively monitored the price of the
shares and MGM's participation in Vivendi Universal S.A.'s
("Vivendi") sale process relating to its U.S. entertainment
assets, Vivendi Universal Entertainment ("VUE"). We did not make
any decision whether to acquire additional shares during this
period pending developments in the sale process. On July 15,
2003, MGM submitted to Vivendi an offer of $11.5 billion in cash
for VUE, subject to certain conditions. On July 22, 2003, MGM
publicly stated that, if MGM did not acquire VUE, MGM would
"share the wealth" with its stockholders. On July 29, 2003, MGM
announced that it was withdrawing from the sale process for VUE.
Upon learning of MGM's decision to withdraw from the bidding for
VUE and its intention to issue a press release announcing its
withdrawal, we decided to make the Offer. Immediately following
MGM's announcement of its withdrawal from the bidding for VUE, on
July 29, 2003, we announced our intention to make the Offer.
(11) Clause (v) of paragraph (a) under the caption "SECTION 12. CONDITIONS
TO THE OFFER" of the Offer to Purchase is amended to read as follows:
(v) a material decrease, in our reasonable judgment, in the
market price for the shares or in the general level of market
prices for equity securities in the United States, or
(12) Clauses (ii) and (vi) of paragraph (a) on page 18; paragraph (b),
clause (iv) of paragraph (b) and paragraph (e) on page 19; and the
text immediately following paragraph (g) on page 20 of the Offer to
Purchase are amended by deleting the phrase "in our sole judgment" and
substituting the phrase "in our reasonable judgment."
(13) Clause (iv) of paragraph (d) on page 19 of the Offer to Purchase is
amended to read as follows:
would or might prohibit, restrict or delay the consummation of
the Offer or materially impair the contemplated benefits to us
thereof, including the exercise of voting or other stockholder
rights with respect to the shares pursuant to the Offer or the
receipt of any distributions or other benefits of ownership of
the purchased shares to which owners of shares are entitled
generally,
(14) Paragraph (g) on page 20 under the caption "SECTION 12. CONDITIONS TO
THE OFFER" of the Offer to Purchase is amended by deleting the phrase
"in our sole discretion" and substituting the phrase "in our
reasonable discretion."
(15) The last paragraph on page 20 under the caption "SECTION 12.
CONDITIONS TO THE OFFER" of the Offer to Purchase is amended to read
as follows:
All the foregoing conditions are for our sole benefit and may be
asserted by either of us regardless of the circumstances giving
rise to such condition (including any action or inaction by MGM)
or may be waived by us in whole or in part, at any time and from
time to time prior to the expiration of the Offer, in our
reasonable discretion. Our failure at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such
right and each such right shall be deemed an ongoing right which
may be asserted at any time and from time to time prior to the
expiration of the Offer. Any determination by us concerning the
events described in Section 12 will be final and binding upon all
parties.
(16) The first paragraph on page 23 is amended to add the following
sentence:
If the Offer price is reduced pursuant to the preceding sentence,
and if, at the time that notice of any such reduction in the
Offer price is first published, sent, or given to holders of
shares, the Offer is scheduled to expire at any time earlier than
the tenth business day after (and including) the date of such
notice, then the Offer will be extended at least until the
expiration of such period of ten business days.
SIGNATURES
After due inquiry and to the best of my knowledge and belief, each of the
undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: September 4, 2003
TRACINDA CORPORATION
A NEVADA CORPORATION
By: /s/ Anthony L. Mandekic
------------------------------------------------
Name: Anthony L. Mandekic
Title: Secretary/Treasurer
KIRK KERKORIAN
By: /s/ Anthony L. Mandekic
------------------------------------------------
Name: Anthony L. Mandekic
Title: Attorney-in-Fact*
*Power of Attorney previously filed as Exhibit 7.10 to the Schedule 13D,
filed by Tracinda Corporation and Kirk Kerkorian on November 18, 1997.