SC TO-T/A 1 dsctota.htm AMENDMENT NO. 3 TO SCHEDULE TO Amendment No. 3 to Schedule TO

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 


 

SCHEDULE TO

 

(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)

 

DIGEX, INCORPORATED

(Name of Subject Company (Issuer))

 

WORLDCOM, INC.

INTERMEDIA COMMUNICATIONS INC.

BUSINESS INTERNET, INC.

INTERMEDIA INVESTMENT, INC.

(Name of Filing Persons—(Offeror and Other Persons))

 

CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE

(Title of Class of Securities)

 

253756 10 0

(CUSIP Number of Class of Securities)

 

Anastasia D. Kelly

Secretary

WorldCom, Inc.

22001 Loudoun County Parkway

Ashburn, VA 20147

Telephone: (703) 886-5600

(Name, Address and Telephone Number of Person

Authorized to Receive Notice and Communications on Behalf of Filing Person)

 

COPIES TO:

 

Steven D. Rubin, Esq.

Weil, Gotshal & Manges LLP

700 Louisiana, Suite 1600

Houston, TX 77002

Telephone: (713) 546-5000

 

CALCULATION OF FILING FEE*


Transaction Valuation   Amount of Filing Fee

$20,415,568.80

  $1,652



*   For purposes of calculating the filing fee only. The fee is $80.90 per $1,000,000 of the aggregate offering amount (or .00008090 of the aggregate transaction valuation), calculated pursuant to Rule 0-11 of the Securities Exchange Act of 1934, as amended by Fee Advisory #11 issued by the Commission on February 21, 2003. The amount assumes the purchase of 25,519,461 shares of Class A Common Stock of Digex, Incorporated for a purchase price per share of $0.80 in cash.

 

n   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:   $1,652                       Filing Party:   WorldCom, Inc.
        Form or Registration No.:   Schedule TO   Date Filed:   August 27, 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:

 

  n   third-party tender offer subject to Rule 14d-1.

 

  ¨   issuer tender offer subject to Rule 13e-4.

 

  n   going-private transaction subject to Rule 13e-3.

 

  n   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:  ¨

(Continued on following pages)

(Page 1 of 11 pages)

 



CUSIP No.    Class A Common Stock: 253756 10 0    13D    Page 2 of 11 Pages

   Class B Common Stock: 369385 20 8

         
           
           

 


  1.  

NAME OF REPORTING PERSON:                    WorldCom, Inc.

S.S. OR I.R.S. IDENTIFICATION NO.

OF ABOVE PERSON:                                             58-1521612

 

   

  2.  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:

 

(a)  x

 

    (b)  ¨


  3.  

SEC USE ONLY

 

   

  4.  

SOURCE OF FUNDS:    Class A Common Stock: WC, OO

Class B Common Stock: OO

 

   

  5.  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):

 

  x

  6.  

CITIZENSHIP OR PLACE OF ORGANIZATION:            Georgia

 

   

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

 

  7.    SOLE VOTING POWER:

Class A Common Stock:  39,350,000(1)

Class B Common Stock:  39,350,000(2)


  8.    SHARED VOTING POWER:

None


  9.    SOLE DISPOSITIVE POWER:

Class A Common Stock:  39,350,000(1)

Class B Common Stock:  39,350,000(2)

 


10.    SHARED DISPOSITIVE POWER:

Class A Common Stock:  730,995(3)

 


11.  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:

Class A Common Stock:  40,080,995(4)

Class B Common Stock:  39,350,000(2)

   

12.  

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:

 

 

¨

 


13.  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):

Class A Common Stock:  61.1%(4)

Class B Common Stock:  100.0%(2)

 

   

14.  

TYPE OF REPORTING PERSON:                CO

 

   

(1) Includes shares of Class A Common Stock if shares of Class B Common Stock are converted.
(2) Represents shares of Class B Common Stock held of record by Intermedia Investment, Inc., a wholly owned subsidiary of Business Internet, Inc., which is a wholly owned subsidiary of Intermedia Communications Inc., which is a directly owned subsidiary of WorldCom.

 

(3) Represents shares of Class A Common Stock issuable upon conversion of 50,000 shares of Series A Convertible Preferred Stock owned directly by HPQ Holdings, LLC, a wholly owned subsidiary of Hewlett-Packard Company, which shares WorldCom has agreed to purchase pursuant to the terms of a Stock Purchase Agreement dated July 23, 2003, by and among WorldCom, Hewlett-Packard and HPQ Holdings. So long as the Stock Purchase Agreement is in effect, HPQ is prohibited from selling or otherwise transferring the Series A Convertible Preferred Stock.

 

(4) Includes shares of Class A Common Stock if shares of Class B Common Stock are converted and shares of Class A Common Stock issuable upon conversion of 50,000 shares of Series A Convertible Preferred Stock owned by HPQ Holdings, LLC. See notes (1) and (3) above.


CUSIP No.    Class A Common Stock: 253756 10 0    13D    Page 3 of 11 Pages

   Class B Common Stock: 369385 20 8

         
           
           

 


  1.  

NAME OF REPORTING PERSON:                    Intermedia Communications Inc.

S.S. OR I.R.S. IDENTIFICATION NO.

OF ABOVE PERSON:                                             59-2913586

 

   

  2.  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:

 

(a)  x

 

    (b)  ¨


  3.  

SEC USE ONLY

 

   

  4.  

SOURCE OF FUNDS:    Class A Common Stock: OO

Class B Common Stock: OO

 

   

  5.  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):

 

  x

  6.  

CITIZENSHIP OR PLACE OF ORGANIZATION:            Delaware

 

   

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

 

  7.    SOLE VOTING POWER:

Class A Common Stock:  39,350,000(1)

Class B Common Stock:  39,350,000(2)


  8.    SHARED VOTING POWER:

None


  9.    SOLE DISPOSITIVE POWER:

Class A Common Stock:  39,350,000(1)

Class B Common Stock:  39,350,000(2)

 


10.    SHARED DISPOSITIVE POWER:

None

 


11.  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:

Class A Common Stock:  39,350,000(1)

Class B Common Stock:  39,350,000(2)

   

12.  

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:

 

 

¨

 


13.  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):

Class A Common Stock:  60.7%(1)

Class B Common Stock:  100.0%(2)

 

   

14.  

TYPE OF REPORTING PERSON:                CO

 

   

(1) Represents shares of Class A Common Stock if shares of Class B Common Stock are converted.
(2) Represents shares of Class B Common Stock held of record by Intermedia Investment, Inc., a wholly owned subsidiary of Business Internet, Inc., which is a wholly owned subsidiary of Intermedia Communications Inc.


CUSIP No.    Class A Common Stock: 253756 10 0    13D    Page 4 of 11 Pages

   Class B Common Stock: 369385 20 8

         
           
           

 


  1.  

NAME OF REPORTING PERSON:                    Business Internet, Inc.

S.S. OR I.R.S. IDENTIFICATION NO.

OF ABOVE PERSON:                                             52-1986462

 

   

  2.  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:

 

(a)  x

 

    (b)  ¨


  3.  

SEC USE ONLY

 

   

  4.  

SOURCE OF FUNDS:    Class A Common Stock: OO

                                           Class B Common Stock: OO

 

   

  5.  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):

 

  x

  6.  

CITIZENSHIP OR PLACE OF ORGANIZATION:            Delaware

 

   

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

 

  7.    SOLE VOTING POWER:

Class A Common Stock:  39,350,000(1)

Class B Common Stock:  39,350,000(2)


  8.    SHARED VOTING POWER:

None


  9.    SOLE DISPOSITIVE POWER:

Class A Common Stock:  39,350,000(1)

Class B Common Stock:  39,350,000(2)

 


10.    SHARED DISPOSITIVE POWER:

None

 


11.  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:

Class A Common Stock:  39,350,000(1)

Class B Common Stock:  39,350,000(2)

   

12.  

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:

 

 

¨

 


13.  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):

Class A Common Stock:  60.7%(1)

Class B Common Stock:  100.0%(2)

 

   

14.  

TYPE OF REPORTING PERSON:                CO

 

   

(1) Represents shares of Class A Common Stock if shares of Class B Common Stock are converted.
(2) Represents shares of Class B Common Stock held of record by Intermedia Investment, Inc., which is a wholly owned subsidiary of Business Internet, Inc.

 


CUSIP No.    Class A Common Stock: 253756 10 0    13D    Page 5 of 11 Pages

   Class B Common Stock: 369385 20 8

         
           
           

 


  1.  

NAME OF REPORTING PERSON:                    Intermedia Investment, Inc.

S.S. OR I.R.S. IDENTIFICATION NO.

OF ABOVE PERSON:                                             59-3677137

 

   

  2.  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:

 

(a)  x

 

    (b)  ¨


  3.  

SEC USE ONLY

 

   

  4.  

SOURCE OF FUNDS:    Class A Common Stock: OO

                                           Class B Common Stock: OO

 

   

  5.  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):

 

  x

  6.  

CITIZENSHIP OR PLACE OF ORGANIZATION:            Delaware

 

   

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

 

  7.    SOLE VOTING POWER:

Class A Common Stock:  39,350,000(1)

Class B Common Stock:  39,350,000


  8.    SHARED VOTING POWER:

None


  9.    SOLE DISPOSITIVE POWER:

Class A Common Stock:  39,350,000(1)

Class B Common Stock:  39,350,000

 


10.    SHARED DISPOSITIVE POWER:

None

 


11.  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:

Class A Common Stock:  39,350,000(1)

Class B Common Stock:  39,350,000

   

12.  

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:

 

 

¨

 


13.  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):

Class A Common Stock:  60.7%(1)

Class B Common Stock:  100.0%

 

   

14.  

TYPE OF REPORTING PERSON:                CO

 

   

(1) Represents shares of Class A Common Stock if shares of Class B Common Stock are converted.


SCHEDULE TO

 

This Amendment No. 3 (this “Amendment”) amends and/or supplements the Tender Offer Statement and Schedule 13E-3 Transaction Statement on Schedule TO filed with the Securities and Exchange Commission (the “Commission”) on August 27, 2003, as amended and/or supplemented by Amendment No. 1 filed with the Commission on September 23, 2003 and Amendment No. 2 filed with the Commission on October 6, 2003 (as so amended and/or supplemented, the “Schedule TO”), by WorldCom, Inc., a Georgia Corporation (“MCI”), Intermedia Communications Inc., a Delaware corporation and subsidiary of MCI (“Intermedia”), Business Internet, Inc., a Delaware corporation and wholly owned subsidiary of Intermedia (“Business Internet”), and Intermedia Investment, Inc., a Delaware corporation and wholly owned subsidiary of Business Internet (“Intermedia Investment”). The Schedule TO, along with this Amendment, relates to the offer by MCI to purchase all of the outstanding shares of Class A Common Stock, par value $.01 per share (the “Class A Common Stock”), of Digex, Incorporated (“Digex”), at a price of $0.80 per share, net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated August 27, 2003, as amended (the “Offer to Purchase”) and in the related Letter of Transmittal (which, together with any supplements or amendments, collectively constitute the “Offer”). The item numbers and responses thereto below are in accordance with the requirements of Schedule TO. Any capitalized term used and not otherwise defined herein has the meaning given to such term in the Offer to Purchase.

 

The information set forth in the Offer to Purchase and the related Letter of Transmittal is expressly incorporated herein by reference in response to all Items of this Amendment, including without limitation all of the information required by Schedule 13E-3 that is not included in or covered by the items in the Schedule TO, except as set forth below. In addition, the information set forth in Items 1 through 13 of the Schedule TO are incorporated herein by reference with respect to Items 1 through 13 of this Amendment, except those Items as to which information specifically provided herein is relevant, in which case the information contained in the Schedule TO is incorporated herein by reference in partial answer to those Items unless otherwise noted hereto.

 

For the purpose of this Amendment, all references to the Offer to Purchase that are expressly set forth in this Amendment or incorporated herein by reference from other documents specifically refer to the Offer to Purchase dated August 27, 2003, as amended, unless otherwise stated herein.

 

This Amendment also constitutes the amendment to the Schedule 13E-3 and the Schedule 13D/A filed by and on behalf of MCI, Intermedia, Business Internet and Intermedia Investment.

 

ITEMS 1-11, 13.

 

The Schedule TO is hereby amended and supplemented by adding the following disclosure, as appropriate, for Items 1-11 and 13 thereof:

 

On October 10, 2003, MCI extended the Offer until 5:00 p.m., New York City time, on October 17, 2003. The text of a press release issued by MCI on October 10, 2003 announcing the extension of the Offer is attached hereto as Exhibit (a)(9) and is incorporated herein by reference.

 

ITEM 12.   EXHIBITS.

 

(a)(9)   Text of press release issued by MCI on October 10, 2003 announcing the extension of the Offer.

 

6


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.

 

 

Dated: October 10, 2003

 

WORLDCOM, INC.

By:

 

/S/    ANASTASIA D. KELLY


Name:

  Anastasia D. Kelly

Title:

 

Executive Vice President, General Counsel

and Secretary


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.

 

Dated: October 10, 2003

 

INTERMEDIA COMMUNICATIONS INC.

By:

 

/S/    ANASTASIA D. KELLY


Name:

  Anastasia D. Kelly

Title:

  Secretary


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.

 

Dated: October 10, 2003

 

BUSINESS INTERNET, INC.

By:

 

/S/    ANASTASIA D. KELLY


Name:

  Anastasia D. Kelly

Title:

  Secretary


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.

 

Dated: October 10, 2003

 

INTERMEDIA INVESTMENT, INC.

By:

 

/S/    ANASTASIA D. KELLY


Name:

  Anastasia D. Kelly

Title:

  Secretary


EXHIBIT INDEX

 

 

EXHIBIT NO.    DESCRIPTION

(a)(9)

   Text of press release issued by MCI on October 10, 2003 announcing the extension of the Offer.