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
TELECOM ARGENTINA S.A.
(Name of Subject Company (Issuer))
CABLEVISIÓN HOLDING S.A.
(Names of Filing Persons (Offerors))
CLASS B SHARES, par value 1 Peso per share
(Title of Class of Securities)
879273209
(CUSIP Number)
Sebastián Bardengo
c/o Cablevisión Holding S.A.
Tacuarí 1842, 4th Floor
1139 Buenos Aires
Republic of Argentina
+54 (11) 4309-3417
With a copy to:
Andrés de la Cruz, Esq.
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, New York 10006
(212) 225-2000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
CALCULATION OF FILING FEE
|
Transaction Valuation* |
|
Amount of Filing Fee |
|
Not applicable. |
|
Not applicable. |
* No filing fee is required because the filing contains only preliminary communications made before the commencement of a tender offer.
o 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: |
|
Filing Party: |
|
Form or Registration No.: |
|
Date Filed: |
x 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.
o issuer tender offer subject to 13e-4.
x 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
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
o Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
x Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
Explanatory Note
This Tender Offer Statement on Schedule TO supplements the Tender Offer Statements on Schedule TO filed with the United States Securities and Exchange Commission from time to time (the “Schedule TO”) by Cablevisión Holding S.A., a sociedad anónima organized under the laws of Argentina, (“CVH”). The Schedule TO relates to a possible tender offer by CVH for all or a portion of the Class B shares, P$1.00 par value per share, of Telecom Argentina, S.A. (“Telecom”), an Argentine corporation (the “Shares”). The Schedule TO is hereby supplemented as follows:
On June 10, 2019, CVH was served with notice of an injunction (the “Injunction”) rendered on May 9, 2019 in the case “Burgueño Daniel a / EN-CNV a / Injunction (Autonomous)” (File No. 89537/2018) pending before the Federal Contentious Administrative Court No. 1, Secretariat No. 1, suspending the process relating to the mandatory tender offer to acquire shares of Telecom, initiated by CVH before the CNV, until the CNV resolves on the applicability of Resolution No. 779/18 or the expiration of the term contemplated in section 5 of Law No. 26,854 governing injunctions. An English-language free translation of the relevant excerpts of the injunction is attached as Exhibit 99.1.
If the relevant provisions of Resolution No. 779/18, which exclude from the mandatory tender offer regime certain mergers involving companies with publicly traded shares, are determined to be applicable to CVH’s acquisition of control in Telecom as a result of Cablevisión S.A.’s merger into Telecom, CVH would not be subject to an obligation to promote and formulate the tender offer for shares of Telecom as well as any other limitation arising as a result of such obligation.
On May 6, 2019, the Federal Civil and Commercial Court No. 3 in re “Cablevisión Holding S.A. v. Argentine Securities Commission on Injunctions” (File No. 7998/2018) had ordered an extension of the injunction separately obtained by CVH for a term of three additional months as from its expiration date. An English-language free translation of the relevant excerpts of the injunction is attached as Exhibit 99.2.
The tender offer described in this communication has not yet commenced. This communication is provided for informational purposes only and does not constitute an offer to purchase or solicitation of an offer to sell any securities. If required by applicable law and solely upon the fulfilment of certain essential requirements outlined therein, CVH intends to file with the U.S. Securities and Exchange Commission a Tender Offer Statement and related materials on Schedule TO, and Telecom would file a Solicitation Recommendation on Schedule 14D-9. Holders of the Shares and American Depository Receipts representing the Shares are encouraged to read carefully such documents when they become available, and as they may be amended from time to time, before any decision is made with respect to the potential offer, because they will contain important information. If and when filed, such documents will be available free of charge at the website of the U.S. Securities and Exchange Commission — www.sec.gov. In addition, if and when filed, CVH will provide copies of such documents free of charge to holders of the Shares.
FREE TRANSLATION
National Judicial Branch
FEDERAL COURT ON ADMINISTRATIVE LITIGATION MATTERS 1
89537/2018
BURGUEÑO, DANIEL V. NATIONAL EXECUTIVE - ARGENTINE SECURITIES COMMISSION ON (AUTONOMOUS) INJUNCTION
Buenos Aires, May 2019.-
AND HAVING REVIEWED [THE FILE]; WHEREAS:
I.- On pp. 2/14 rev. Mr. Daniel Burgueño appears by his own right and in his capacity as shareholder of Cablevisión Holding S.A., and requests the issuance of an injunction based on articles 195, 232 of the CPCCN [National Code of Civil and Commercial Procedure] against the Argentine Securities Commission, for the purpose of making [such entity] abstain from issuing a pronouncement and resolving about the authorization of the Tender Offer to Acquire Class B Shares of Telecom Argentina formulated by Cablevisión Holding S.A, until the abovementioned agency issues the regulations set forth in article 77 of the Capital Markets Law (No. 26,831) and the procedure set forth in the law regarding objections to the price of the Tender Offer by the Argentine Securities Commission is completed.
[Mr. Burgueño] holds that on January 1, 2018 Cablevisión Holding became the controlling shareholder of Telecom Argentina S.A., and that, as a result of such change of control, the controlling company had the statutory obligation to promote and formulate a Tender Offer within 180 calendar days of the occurrence of the change, with respect to the Class B Share.
Before the expiration of the term of the abovementioned Tender Offer (06/30/2018), law 27,440 (B.O. 05/11/2018) was published, amending the regime set forth under law 26,831 for Tender Offers, especially with respect to the determination of the price of the shares.
II.- On pp. 83/101 rev., claimant again appears and adjusts the requested injunction.
Consequently, he asks that the Argentine Securities Commission be ordered to abstain from moving forward, continuing or resolving the proceedings relating to the authorization of the Tender Offer to Acquire Class B Shares of Telecom Argentina formulated by Cablevisión Holding S.A. on 06/21/2018 until a decision is rendered hereunder.
[Claimant] holds that with the issuance of Resolution No. 779/2018, which regulates Law No. 26,831, [the Argentine Securities Commission] eliminated the obligation to launch a Tender Offer in the event of a change of control, which situation also applies to Cablevisión Holding S.A.
[Claimant] manifests that after acquiring to corporate control of Telecom, Cablevisión Holding interpreted that pursuant to the capital markets law then in force, [Cablevisión Holding] was under the obligation to promote a Tender Offer, which it did, but that after the amendment mentioned above through Resolution 779 of the Argentine Securities Commission, the Tender Offer procedure became moot giver the repeal of the obligation to launch [such Tender Offer].
For this reason, [claimant] holds that if the Tender Offer proceeding continues, the new regulations would be breached, which is arbitrary and contrary to law.
III.- [Recitals III — VI (first paragraph) intentionally omitted]
VI. […]
This is so given that, pursuant to Resolution 779/18, issued by the Argentine Securities Commission, [that agency] provided that: “The obligation to make a public tender offer shall not apply when: […] k) in the case of a merger, the shareholders of the affected companies or entities shall be exempt from making a public tender offer when, as a result of the merger, they reach, in the company that was admitted to the public offering regime of its shares, directly or indirectly, the control participation provided under article 87 of Law No. 26,831, as amended, provided that [such shareholders] did not vote in favor of the merger at the corresponding Ordinary Shareholders’ Meeting of the affected company.”
[Paragraphs 3, 4 and 5 of Recital VI intentionally omitted]
[Recitals VII — IX intentionally omitted]
Therefore, I RESOLVE: To grant, in the terms mentioned [above], the requested injunction and, in consequence, to order the suspension of the proceedings relating to the Tender Offer to Acquire Class B Shares of Telecom Argentina that had been initiated before the Argentine Securities Commission until such time as the defendant, as the case may be, shall resolve to apply its new regulations or until the expiration of the maximum term provided under Article 5º of Law No. 26,854.
This decision is ordered against a real guarantee as provided under Recital IX.
Let [the decision] be registered and notified to the claimant, today (pursuant to art. 36 of the Rules for the National Justice) and after compliance with the guarantee, let the defendant be notified hereof.
Signature Date: May 9th, 2019
Signed by: ENRIQUE LAVIE PICO, ACTING JUDGE
FREE TRANSLATION
National Judicial Branch
FEDERAL CIVIL AND COMMERCIAL COURT 3
7998/2018
CABLEVISIÓN HOLDING SA V. ARGENTINE SECURITIES COMMISSION ON INJUNCTIONS
Buenos Aires, May 2019. RE
[Procedural formalities intentionally omitted]
Having considered the request of the file received for a decision (see p. 508), the decision of the Court of Appeals on p. 509, second paragraph and considering the specific circumstances of this case, given that there is no evidence in the case that the factual and legal situation that justified at the time the decision rendered in pp. 316/320, and considering also the diligent conduct performed by the claimant, we deem it appropriate to extend the duration of the injunction with the scope provided, for a term of three additional months as from its expiration date.
Let this decision be communicated, allowing such notice to occur on non-business days and hours.
Let this file be returned to the Court of Appeals, and let this decision serve as notice.
Signature Date: May 6th, 2019
Signed by: JOSE LUIS CASSINERIO, ACTING JUDGE