As Filed with the Securities and Exchange Commission on January 31, 2002
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
VIVENDI UNIVERSAL
(Exact name of registrant as specified in its charter)
France None
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
42, avenue de Friedland
75380 Paris Cedex 08, France
33 (1) 71 71 10 00
(Address of Principal Executive Offices)
----------------------
Houghton Mifflin Company 401(k) Savings Plan
Vivendi Universal Games, Inc. 401(k) Plan
MP3.com 401(k) Plan
Vivendi Universal Games, Inc. Executive Deferred Compensation Plan
(Full Title of Plans)
----------------------
Vivendi Universal U.S. Holding Co.
800 Third Avenue
7th Floor
New York, New York 10022
(212) 572-7000
Attention: President
(Name, address and telephone number, including area code, of agent for service)
----------------------
Copies To:
Faiza J. Saeed Elena Baxter
Cravath, Swaine & Moore Bredin Prat
Worldwide Plaza 130, rue du Faubourg
825 Eighth Avenue Saint-Honore
New York, NY 10019-7472 Paris, 75008 France
(212) 474-1000 33 (1) 44 35 35 35
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed maximum Proposed maximum Amount of
securities to be offering price per aggregate offering registration
to be registered registered(1) share (2) price (2) fee
Ordinary Shares, with a nominal value
of 5.50 per share (3) 2,500,000 shares $44.325 $110,812,500 $10,195
Deferred Compensation Obligations $200,000 100% $200,000 $19
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the employee benefit plans described herein.
(2) Estimated in accordance with Rule 457(h) and 457(c) under the Securities
Act of 1933, solely for purposes of calculating the registration fee, on the
basis of the average of the high and low sale prices on the New York Stock
Exchange on January 30, 2002 for American Depositary Shares of the
Registrant, each of which represents one Ordinary Share.
(3) The Vivendi Universal ordinary shares being registered hereby may be
represented by Vivendi Universal's American Depositary Shares. A separate
Registration Statement on Form F-6, as amended, has been filed in connection
with Vivendi Universal's American Depositary Shares. Each of Vivendi
Universal's American Depositary Shares currently represents one ordinary share
of Vivendi Universal.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 have been or will be sent or given to participating employees as specified
in Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities
Act"), in accordance with the rules and regulations of the United States
Securities and Exchange Commission (the "Commission"). Such documents are not
being filed with the Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Commission by the
Registrant are hereby incorporated by reference and shall be deemed a part
hereof:
(a) Vivendi Universal's Form 20-F (File No. 001-16301) filed on
July 2, 2001.
(b) All other reports filed by the Registrant pursuant to
Section 13(d) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since the end of the Registrant's
fiscal year ended December 31, 2000.
(c) The description of Vivendi Universal ordinary shares,
nominal value (U)5.50 per share, contained in the Registrant's Form
F-4 filed July 9, 2001.
All documents filed by the Registrant, the Houghton Mifflin Company
401(k) Savings Plan, the Vivendi Universal Games, Inc. 401(k) Plan, the
MP3.com 401(k) Plan or the Vivendi Universal Games, Inc. Executive Deferred
Compensation Plan pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, subsequent to the effective date of this Registration Statement,
prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents.
Any statement contained herein or in any document to be incorporated
or deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Registrant has provided for the indemnification of its directors
and officers with respect to general civil liability which they may incur with
their activity on behalf of the Registrant.
The Registrant maintains insurance, at its own expense, to protect
itself and any director, officer, employee or agent of the Registrant or of
any other entity affiliated with the Registrant against any civil liability,
loss or expense, other than liability arising out of willful misconduct.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Unless otherwise indicated below as incorporated by reference to
another filing of the Registrant with the Commission, each of the following is
filed herewith:
Exhibit Number Description
4.1 Vivendi Universal Restated Corporate statuts (unofficial
English translation) (previously filed as an Exhibit to
Vivendi Universal's Form 20-F filed on July 2, 2001 (and
incorporated herein by reference)).
4.2 Deposit Agreement dated as of April 19, 1995, as amended
and restated as of September 11, 2000, as further amended
and restated as of December 8, 2000 among Vivendi
Universal, S.A., The Bank of New York, as depositary, and
all the Owners and Beneficial Owners from time to time of
American Depositary Shares issued thereunder (previously
filed as an Exhibit to Vivendi Universal's Registration
Statement on Form 8-A dated December 29, 2000 (and
incorporated herein by reference)).
5.1 Internal Revenue Service ("IRS") Determination Letter with
respect to qualification of the Houghton Mifflin Company
401(k) Savings Plan (formerly known as the Houghton
Mifflin Company Retirement Savings Plan) under Section 401
of the Internal Revenue Code.
5.2 IRS Determination Letter with respect to qualification of
the Vivendi Universal Games, Inc. 401(k) Plan (formerly
known as the Sierra On-Line 401(k) Plan and Trust) under
Section 401 of the Internal Revenue Code.
5.3 In lieu of an IRS determination letter that the MP3.com
401(k) Plan is qualified under Section 401 of the Internal
Revenue Code, the undersigned registrant hereby undertakes
that it will submit or has submitted the MP3.com 401(k)
Plan and any amendments thereto to the IRS in a timely
2
manner and has made or will make all changes required by the
IRS in order to qualify the MP3.com 401(k) Plan.
23.1 Consent of RSM Salustro Reydel and Barbier Frinault & Cie.
23.2 Consent of RSM Salustro Reydel.
24.1 Power of Attorney.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
3
(4) To file a post-effective amendment to the registration
statement to include any financial statements required by Item 8.A
of Form 20-F at the start of any delayed offering or throughout a
continuous offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Securities Act need not be
furnished, provided that the registrant includes in the prospectus,
by means of a post-effective amendment, financial statements
required pursuant to this paragraph (a)(4) and other information
necessary to ensure that all other information in the prospectus is
at least as current as the date of those financial statements.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in New York, New York, on this 31st
day of January, 2002.
VIVENDI UNIVERSAL
By /s/ George E. Bushnell, III
----------------------------------
Name: George E. Bushnell, III
Title: Vice President
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in New York, New York, on this 31st
day of January, 2002.
HOUGHTON MIFFLIN COMPANY 401(K)
SAVINGS PLAN
By /s/ James F. Kennedy
--------------------------------
Name: James F. Kennedy
Title: Corporate Vice President, Benefits
VIVENDI UNIVERSAL GAMES, INC. 401(K)
PLAN
By /s/ Virginia P. Kelley
--------------------------------
Name: Virginia P. Kelley
Title: VP Compensation and Benefits
MP3.COM 401(K) PLAN
By /s/ Anne Blanton
--------------------------------
Name: Anne Blanton
Title: VP Human Resources
5
VIVENDI UNIVERSAL GAMES, INC.
EXECUTIVE DEFERRED COMPENSATION
PLAN
By /s/ Robert A. Gunn
-------------------------------
Name: Robert A. Gunn
Title: SVPHR Vivendi Universal Games
We, the undersigned officers and directors of Vivendi Universal,
hereby severally constitute and appoint Jean-Francois Dubos and George E.
Bushnell, III (with full power to act alone), our true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution in each of them for him and in his name, place and stead, and
in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as full to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or his or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Jean-Marie Messier Chairman of the Board of January 31, 2002
------------------------- Directors and Chief Executive
Jean-Marie Messier Officer
/s/ Guillaume Hannezo Chief Financial Officer (Principal January 31, 2002
------------------------- Financial and Accounting
Guillaume Hannezo Officer)
/s/ Dominique Gibert Senior Vice President, January 31, 2002
------------------------- Finance (Deputy Chief Financial
Dominique Gibert Officer)
/s/ Pierre Lescure Director and Co-Chief Operating January 31, 2002
------------------------- Officer
Pierre Lescure
6
/s/ Eric Licoys Director and Co-Chief Operating January 31, 2002
--------------------------- Officer
Eric Licoys
/s/ Bernard Arnault Director January 31, 2002
---------------------------
Bernard Arnault
--------------------------- Director
Jean-Louis Beffa
/s/ Edgar Bronfman, Jr. Director and Vice-Chairman of January 31, 2002
--------------------------- the Board of Directors
Edgar Bronfman, Jr.
--------------------------- Director
Edgar M. Bronfman
/s/ Richard H. Brown Director January 31, 2002
---------------------------
Richard H. Brown
/s/ Jean-Marc Espalioux Director January 31, 2002
---------------------------
Jean-Marc Espalioux
/s/ Philippe Foriel-Destezet Director January 31, 2002
----------------------------
Philippe Foriel-Destezet
/s/ Jacques Friedman Director January 31, 2002
---------------------------
Jacques Friedmann
/s/ Esther Koplowitz Director January 31, 2002
---------------------------
Esther Koplowitz
/s/ Marie-Josee Kravis Director January 31, 2002
---------------------------
Marie-Josee Kravis
/s/ Henri Lachmann Director January 31, 2002
---------------------------
Henri Lachmann
7
/s/ Samuel Minzberg Director January 31, 2002
---------------------------
Samuel Minzberg
Director
---------------------------
Simon Murray
/s/ Serge Tchuruk Director January 31, 2002
---------------------------
Serge Tchuruk
/s/ Rene Thomas Director January 31, 2002
---------------------------
Rene Thomas
/s/ Marc Vienot Director January 31, 2002
---------------------------
Marc Vienot
/s/ George E. Bushnell, III Authorized Representative in the January 31, 2002
--------------------------- United States
George E. Bushnell, III
8
EXHIBIT INDEX
Exhibit Number Description
--------------- ------------
4.1 Vivendi Universal Restated Corporate statuts (unofficial
English translation) (previously filed as an Exhibit to
Vivendi Universal's Form 20-F filed on July 2, 2001 (and
incorporated herein by reference)).
4.2 Deposit Agreement dated as of April 19, 1995, as amended
and restated as of September 11, 2000, as further amended
and restated as of December 8, 2000 among Vivendi
Universal, S.A. The Bank of New York, as depositary, and
all the Owners and Beneficial Owners from time to time of
American Depositary Shares issued thereunder (previously
filed as an Exhibit to Vivendi Universal's Registration
Statement on Form 8-A dated December 29, 2000 (and
incorporated herein by reference)).
5.1 IRS Determination Letter with respect to qualification of
the Houghton Mifflin Company 401(k) Savings Plan (formerly
known as the Houghton Mifflin Company Retirement Savings
Plan under Section 401 of the Internal Revenue Code.
5.2 IRS Determination Letter with respect to qualification of
the Vivendi Universal Games, Inc. 401(k) Plan (formerly
known as the Sierra On-Line 401(k) Plan and Trust) under
Section 401 of the Internal Revenue Code.
23.1 Consent of RSM Salustro Reydel and Barbier Frinault & Cie.
23.2 Consent of RSM Salustro Reydel.
24.1 Power of Attorney (included on the signature pages
hereto).
9
EXHIBIT 5.1
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BROOKLYN, NY 11202
Date: February 6, 1997 Employer Identification Number:
04-1456030
File Folder Number:
043002830
HOUGHTON MIFFLIN COMPANY Person to Contact:
222 BERKELEY STREET WILLIAM HUNT
BOSTON, MA 02116 Contact Telephone Number:
(718) 488-2423
Plan Name:
HOUGHTON MIFFLIN COMPANY
RETIREMENT SAVINGS PLAN
Plan Number: 003
Dear Applicant:
We have made a favorable determination on your plan, identified
above, based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will
depend on its effect in operation. (See section 1.401-1(b)(3) of the Income
Tax Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the
Internal Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination is subject to your adoption of the proposed
amendments submitted in your letter dated January 14, 1997. The proposed
amendments should be adopted on or before the date prescribed by the
regulations under Code section 401(b).
This determination expresses an opinion on whether the amendment(s),
in and of itself, affects the continued qualified status of the plan under
Code section 401 and the exempt status of the related trust under section
501(a). It is not an opinion on the qualification of the plan as a whole and
the exempt status of the related trust as a whole.
This determination letter is applicable for the amendment(s) adopted
on July 28, 1995.
10
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as otherwise
specified in this letter.
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uruguay Round
Agreements Act, Pub. L. 103-465.
We have sent a copy of this letter to your representative as
indicated in the power of attorney.
If you have questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/ Herbert J. Huff
----------------------------
Herbert J. Huff
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
11
EXHIBIT 5.2
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
2 CUPANIA CIRCLE
MONTEREY PARK, CA 91755
Date: February 21, 1995 Employer Identification Number:
77-0164293
File Folder Number:
911005246
SIERRA ON-LINE, INC. Person to Contact:
C/O JAMES E. HUNNEX DONNA COLLINS
5870 COLUMBIA CENTER Contact Telephone Number:
SEATTLE, WA 98104 (213) 725-0164
Plan Name:
SIERRA ON-LINE, INC. 401(K) PLAN
AND TRUST
Plan Number: 001
Dear Applicant:
We have made a favorable determination on your plan, identified
above, based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will
depend on its effect in operation. (See section 1.401-1(b)(3) of the Income
Tax Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the
Internal Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
This determination letter is applicable for the amendment(s) adopted
on 12-22-1994.
This determination letter is applicable for the plan adopted on
9-24-1991.
This plan has been mandatorily disaggregated, permissively
aggregated, or restructured to satisfy the nondiscrimination requirements.
This plan satisfies the nondiscrimination in amount requirement of
section 1.401(a)(4)- 1(b)(2) of the regulations on the basis of a design-based
safe harbor described in the regulations.
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as otherwise
specified in this letter.
12
This plan satisfies the nondiscriminatory current availability
requirements of section 1.401(a)(4)-4(b) of the regulations with respect to
those benefits, rights, and features that are currently available to all
employees in the plan's coverage group. For this purpose, the plan's coverage
group consists of those employees treated as currently benefiting for purposes
of demonstrating that the plan satisfies the minimum coverage requirements of
section 410(b) of the Code.
This plan qualifies for Extended Reliance described in the last
paragraph of Publication 794 under the caption "Limitations of a Favorable
Determination Letter".
The information on the enclosed addendum is an integral part of this
determination. Please be sure to read and keep it with this letter.
We have sent a copy of this letter to your representative as
indicated in the power of attorney.
If you have questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/ Richard R. Orosco
------------------------------
Richard R. Orosco
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
Addendum
13
Addendum:
SIERRA ON-LINE, INC.
This plan also satisfies the requirements of Code section 401(k).
14
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the inclusion in this
registration statement on Form S-8 of our report dated April 2, 2001, except
with respect to the matters discussed in Note 16 as to which the date is June
28, 2001, and to all references to our Firms included in or made part of this
registration statement.
Paris, France
January 30, 2002
RSM Salustro Reydel Barbier Frinault & Cie
A member firm of Arthur Andersen
15
Vivendi Universal EXHIBIT 23.2
Registration Statement, Form S-8
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants of Vivendi, we hereby consent to the
incorporation by reference in the Registration Statement on Form S-8 filed by
Vivendi Universal of our report, dated March 10, 2000, relating to the
consolidated balance sheet of Vivendi and its subsidiaries as of December 31,
1998 and the related consolidated statement of income, changes in
shareholder's equity and cash flow for the year then ended and to all
references to our Firm included in or made part of this registration
statement.
Paris, France
January 30, 2002
RSM Salustro Reydel
16