UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
SCHEDULE
TO
(Amendment
No. 2)
TENDER
OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF
THE SECURITIES EXCHANGE ACT OF 1934
Invitel
Holdings A/S
(Name of
Subject Company (Issuer))
HUNGARIAN
TELECOM (NETHERLANDS) COOPERATIEF U.A.
HUNGARIAN
TELECOM LP
MID
EUROPA FUND III LP
MID
EUROPA III GP LP
MID
EUROPA III MANAGEMENT LIMITED
MID
EUROPA PARTNERS LLP
CRAIG
BUTCHER
NIKOLAUS
BETHLEN
THIERRY
BAUDON
(Names of
Filing Persons (Offerors))
ORDINARY
SHARES, PAR VALUE €0.01 PER SHARE
(Title of
Class of Securities)
K49769
100
(CUSIP
Number of Class of Securities)
AMERICAN
DEPOSITARY SHARES, EACH REPRESENTING ONE ORDINARY SHARE
(Title of
Class of Securities)
46186X106
(CUSIP
Number of Class of Securities)
Jacques
Du Preez
Mid
Europa Partners LLP
161
Brompton Road
London
SW3 1EX
United
Kingdom
Telephone:
+44 (0) 20 7886 3600
(Name,
Address and Telephone Number of Person Authorized to Receive
Notices
and
Communications on Behalf of filing persons)
Copies
to:
George
Karafotias
Shearman
& Sterling LLP
Broadgate
West, 9 Appold Street
London
EC2A 2AP, United Kingdom
Telephone:
+44 (0) 20 7655 5000
CALCULATION
OF FILING FEE
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*
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Estimated
for purposes of calculating the amount of the filing fee only. The
calculation assumes the purchase of all outstanding ordinary shares, par
value €0.01 per share (the “Invitel Shares”), and all outstanding American
Depositary Shares, each of which represents one Invitel Share (the
“Invitel ADSs”), of Invitel Holdings A/S, a public limited company
organized under the laws of Denmark (“Invitel”), that are not already
owned by the Offeror (as defined below), at a purchase price of $4.50 per
Invitel Share or Invitel ADS, net to the seller in cash without any
interest thereon and less any applicable withholding taxes. As of December
4, 2009, there were 16,725,733 Invitel Shares, including Invitel Shares
represented by Invitel ADSs, issued and outstanding, of which 12,450,393
Invitel Shares are owned by the Offeror. As a result, this calculation
assumes the purchase of 4,275,340 Invitel Shares and/or Invitel
ADSs.
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**
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The
amount of the filing fee is calculated in accordance with Rule 0-11
of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory
No. 5 for fiscal year 2009 issued by the Securities and Exchange
Commission on March 11, 2009. Such fee equals 0.00558% of the
transaction value.
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x
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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.
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Amount
Previously Paid: $1,073.54
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Filing
Party: Mid Europa III Management Limited, Mid Europa III GP LP,
Mid Europa Fund III LP, Hungarian Telecom LP and Hungarian Telecom
(Netherlands) Cooperatief U.A.
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Form
or Registration No.: Schedule TO-T
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Date
Filed: December 7, 2009
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o
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Check
the box if the filing relates solely to preliminary communications made
before the commencement of a tender offer.
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Check
the appropriate boxes to designate any transactions to which the statement
relates:
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x
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third-party
tender offer subject to Rule 14d-1.
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o
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issuer
tender offer subject to Rule 13e-4.
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x
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going-private
transaction subject to Rule 13e-3.
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o
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amendment
to Schedule 13D under Rule 13d-2.
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Check
the following box if the filing is a final amendment reporting the results
of the tender offer:
o
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This
Amendment No. 2 amends and supplements the Tender Offer Statement and
Rule 13e-3 Transaction Statement filed under cover of Schedule TO (the
“
Schedule TO
”) filed on
December 7, 2009, by (i) Mid Europa III Management Limited, a limited company
organized under the laws of Guernsey, Channel Islands (“
Management Limited
”), (ii) Mid
Europa III GP LP, a limited partnership organized under the laws of Guernsey,
Channel Islands (“
GP
LP
”), (iii) Mid Europa Fund III LP, a limited partnership organized under
the laws of Guernsey, Channel Islands (the “
Fund
”), (iv) Hungarian Telecom
LP, a limited partnership organized under the laws of Guernsey, Channel Islands
(“
Hungarian Telecom
”)
and (v) Hungarian Telecom (Netherlands) Cooperatief U.A., a cooperative
association organized under the laws of The Netherlands (the “
Offeror
”), as amended on
December 22, 2009, by (i) Mid Europa Partners LLP, a limited liability
partnership organized under the laws of England (the “
Sponsor
”), (ii) Mr. Craig
Butcher, a natural person and the Senior Partner of the Sponsor, (iii) Mr.
Nikolaus Bethlen, a natural person and an Associate Director of the Sponsor,
(iv) Mr. Thierry Baudon, a natural person and the Managing Partner of the
Sponsor, (v) Management Limited, (vi) GP LP, (vii) the Fund and (viii) Hungarian
Telecom (collectively, the “
Mid
Europa Entities
”) and (ix) the Offeror.
This
Amendment No. 2 is filed by the Mid Europa Entities and the
Offeror. The Offeror and the Mid Europa Entities are directly or
indirectly advised by the Sponsor. Management Limited is the sole
general partner of GP LP and Hungarian Telecom. GP LP is the sole
general partner of the Fund. Hungarian Telecom is a wholly owned subsidiary of
the Fund. The Offeror is a wholly owned subsidiary of Hungarian
Telecom.
The
Schedule TO relates to the Offeror’s offer to purchase (the “
Offer
”) any and all of the
outstanding ordinary shares, par value €0.01 per share (the “
Invitel Shares
”), and any and
all of the American Depositary Shares, each of which represents one Invitel
Share (the “
Invitel
ADSs
”), of Invitel Holdings A/S, a public limited company organized under
the laws of Denmark (“
Invitel
”), that are not
already owned by the Offeror, at a purchase price of $4.50 per Invitel Share or
Invitel ADS, net to the seller in cash, without interest and less any applicable
withholding of taxes, upon the terms and subject to the conditions set forth in
the Offer to Purchase, dated December 7, 2009 (the “
Offer to Purchase
”), a copy of
which is attached to the Schedule TO as Exhibit (a)(1)(i), and the related
Letter of Transmittal (the “
Letter of Transmittal
”), a
copy of which is attached to the Schedule TO as Exhibit (a)(1)(ii).
The
following amendment to the Items of the Schedule TO is hereby made.
Items 1
through 9, 11 and 13.
1. Following
the first full paragraph on page 19 of the Offer to Purchase, the remainder of
the section captioned “Special Factors—Section 1. Background”,
which begins on page 14 of the Offer to Purchase, is amended and restated in its
entirety as follows:
“Shareholders
attending the October 28 EGM included Straumur-Burdaras Investment Bank hf., a
company organized under the laws of the Republic of Iceland (“Straumur”), which
at the time held 1,650,611 Invitel Shares (the “Straumur Shares”), or
approximately 9.9% of all outstanding Invitel Shares. As Straumur
representatives were in Budapest for the EGM, they took the opportunity to meet
with the Sponsor, as the soon-to-be controlling shareholder of
Invitel. At the meeting, Straumur indicated a willingness to explore
a possible sale of its stake in Invitel to the Sponsor and the Sponsor indicated
a willingness to explore a possible purchase of such stake. The
Sponsor saw this as an opportunity to further increase its controlling stake in
Invitel, and in particular to increase its holding above two-thirds (66.67%) of
the nominal value of the Invitel voting shares, which is the relevant threshold
under Danish corporate law for shareholder approval of certain corporate
actions, including the approval of an increase in Invitel’s share capital, the
issuance of new Invitel Shares, the waiver of preemptive rights in respect of
specific share capital increases and the amendment of Invitel’s articles of
association.
During
the second week of November, 2009, Straumur and the Sponsor discussed in greater
detail a potential sale of the Straumur Shares to the Sponsor. Straumur
indicated that it would be willing to sell its stake at a price equal to the
market price of the Invitel Shares prior to the announcement of the September 30
transaction—approximately $5.50 per Invitel Share. The Sponsor indicated that it
would be willing to purchase Straumur’s stake at a price of $4.00 per Invitel
Share.
On or
around November 13, 2009, Straumur contacted the Sponsor by telephone to advise
the Sponsor that it would not be willing to sell its stake at a price of $4.00
per Invitel Share, but would instead be willing to sell at $5.00 per Invitel
Share. The Sponsor indicated that it would not be willing to pay
$5.00 per Invitel Share but would be willing to pay $4.50 per Invitel
Share.
Straumur
subsequently called the Sponsor to advise the Sponsor that it would be willing
to sell its stake at a price of $4.50 per Invitel Share provided that the
Sponsor would agree to an “anti-embarrassment” agreement, whereby – in the event
the Sponsor were to make a tender offer to minority shareholders at any time
within the first year after the transaction with Straumur was conducted – the
Sponsor would be required to pay Straumur the difference between $4.50 per
Invitel Share and any higher price paid in such offer.
On
November 16, 2009, a meeting involving the Sponsor and its investment advisory
committee was held at which the Sponsor sought and obtained approval from the
investment advisory committee for the purchase of the Straumur stake at a
price of $4.50 per Invitel Share and entry into an
“anti-embarrassment” agreement to be agreed between the
parties.
The Sponsor received the first draft of the “anti-embarrassment”
agreement (the “Straumur Agreement”) from Straumur on Friday, November 20,
2009. At the beginning of the following week, the Sponsor reviewed
the draft with its lawyers, including Danish counsel, who provided comments on
the draft. The Straumur Agreement was finalized during the
course of Wednesday, November 25 and an execution version of the agreement
was circulated among the parties later that day.
Thursday,
November 26, 2009 marked Thanksgiving, a federal holiday.
On
Friday, November 27, 2009, the Offeror purchased the Straumur Shares at a
purchase price of $4.50 per Invitel Share, or $7,427,749.50 in the aggregate
(such purchase, the “Straumur Purchase”). The Straumur Purchase
brought the Offeror’s total stake in Invitel to 12,450,393 Invitel Shares,
representing 74.4% of the outstanding Invitel Shares.
In
connection with the Straumur Purchase, on November 27, 2009, the Offeror and
Straumur executed the Straumur Agreement. Pursuant to the Straumur
Agreement, should the Offeror or one of its affiliates, prior to the first
anniversary of the date of the Straumur Agreement, make a tender offer with
respect to any Invitel Shares, the Offeror will be required to pay Straumur on
the date payment under any such tender offer is due, for each of the Straumur
Shares, an amount representing the difference between (i) the price offered per
Invitel Share in any such tender offer and (ii) $4.50.
While the
purpose of the investment advisory committee meeting on November 16,
2009 was to approve the purchase of the Straumur stake,
the
possibility of a tender offer to purchase the remaining minority shares was also
discussed. Such discussions were very preliminary in nature and were
not included in the formal agenda for the investment advisory committee
meeting. The investment advisory committee recommended that the
Sponsor investigate the merits of a possible tender offer and authorized the
Sponsor to take preliminary steps in this regard. No formal decision
was taken to pursue such a tender offer.
As the Straumur Purchase was finalized, the Sponsor’s deal team
further discussed internally (though not with the investment advisory committee)
the possibility of a tender offer to Invitel’s minority shareholders, and
decided that it would raise this possibility with the independent directors of
Invitel. On November 27, 2009, Mr. Butcher advised the directors on
the Board of Directors not affiliated with the Sponsor (the “Independent
Directors”) of the Sponsor’s agreement to purchase the Straumur Shares at a
purchase price of $4.50 per Invitel Share and discussed with the Independent
Directors the possibility of the Sponsor extending an offer to purchase the
Invitel Shares and Invitel ADSs not already owned by the Offeror at that same
price.
After
being informed on November 27, 2009 by Mr. Butcher about the possibility of the
Sponsor extending an offer to purchase the Invitel Shares and Invitel ADSs, the
Independent Directors engaged Davis Polk & Wardwell LLP (“Davis Polk”), as
legal advisor as to U.S. law, and Gorrissen Federspiel, as legal advisor as to
Danish law, to advise the Independent Directors in connection with their
evaluation of the Sponsor’s proposal and appointed Houlihan Lokey Howard &
Zukin (Europe) Limited (“Houlihan Lokey”) to render a written opinion as to
whether the Offer Price to be received by the Invitel Shareholders and Invitel
ADS Holders unaffiliated with the Mid Europa Group pursuant to the Offer was
fair to them from a financial point of view.
On
December 5, 2009, Mr. Butcher was contacted by telephone by Jens Due Olsen and
Ole Steen Andersen, two of the Independent Directors, who advised Mr. Butcher
that the Independent Directors were continuing to consider the proposal together
with Houlihan Lokey, Davis Polk and Gorrissen Federspiel.
Following
this telephone call, Mr. Butcher informed the internal investment advisory
committee and it was determined that the Sponsor would proceed with an offer to
the remaining Invitel Shareholders at a purchase price of $4.50 per Invitel
Share or Invitel ADS, net to the seller in cash, in the absence of a
recommendation of the Independent Directors. Mr. Butcher then
contacted Ole Steen Andersen by telephone on December 7, 2009 to advise him of
this decision to proceed.
On
December 7, 2009, the Sponsor announced the Offer and Invitel issued an
announcement recommending that shareholders defer making a determination whether
to accept or reject the Offer until the Independent Directors had stated their
position with respect to the Offer, which would occur on or before December 18,
2009.
On
December 10, 2009, Mr. Olsen contacted Mr. Butcher to inform him that the
Independent Directors could not foresee recommending the Offer at the Offer
Price and that an appropriate premium to the current trading price of $5.25 may
be acceptable.
On December 11, 2009, Mr. Olsen received a call from Mr. Butcher
exploring the possibility of whether the Independent Directors would be willing
to recommend in favor of the Offer if, subject to obtaining internal approval,
the Sponsor increased its offer to $4.75.
On
December 13, 2009, Mr. Olsen called Mr. Butcher to inform him that the
Independent Directors could foresee recommending the Offer at a price of $5.25
or higher which would be in the mid-range of the discounted cash flow analysis
that was considered by the Independent Directors based on the financial
projections for the fiscal years ending December 31, 2009 through 2015 prepared
jointly by Invitel and the Sponsor and would be in line with the current trading
price but could not foresee recommending the Offer at a price below
this. The Independent Directors recognized that the trading price of
Invitel ADSs increased with relatively high trading volume on the date of the
announcement of the Offer and had remained at the increased price level with
very low trading volumes.
On
December 14, 2009, Davis Polk and Shearman & Sterling had a conversation in
which Davis Polk reiterated the message that was delivered by Mr. Olsen to Mr.
Butcher that the Independent Directors could foresee recommending the Offer at a
price of $5.25 or higher which would be in the mid-range of the discounted cash
flow analysis that was considered by the Independent Directors based on the
financial projections for the fiscal years ending December 31, 2009 through 2015
prepared jointly by Invitel and the Sponsor and would be in line with the
current trading price but could not foresee recommending the Offer at a price
below this.
Later in
the day on December 14, 2009, Mr. Olsen received a call from Mr. Butcher
pursuant to which Mr. Butcher stated the Sponsor’s position that it believes the
Offer Price is fair and that it would not increase the Offer Price.
On
December 15, 2009, Mr. Olsen contacted Mr. Butcher to convey the conclusion of
the Independent Directors that they would not make a recommendation or express
an opinion, but would remain neutral with respect to the Offer.
On
December 18, 2009, Invitel filed a Schedule 14D-9 with the SEC, which filing
contained the Independent Directors’ statement of neutrality with respect to the
Offer and outlined the Independent Directors’ reasons for adopting a neutral
position.”
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Item 12.
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Exhibits.
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(a)(1)(i)*
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Offer
to Purchase, dated December 7, 2009.
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(a)(1)(ii)*
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Letter
of Transmittal.
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(a)(1)(iii)*
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Notice
of Guaranteed Delivery.
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(a)(1)(iv)*
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Letter
to Brokers, Dealers, Banks, Trust Companies and Other
Nominees.
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(a)(1)(v)*
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Letter
to Clients for use by Brokers, Dealers, Banks, Trust Companies and Other
Nominees.
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(a)(1)(vi)*
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Form
of Acceptance for Invitel Shares.
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(a)(1)(vii)
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Press
release issued by Mid Europa Partners Limited on December 7, 2009
(incorporated by reference to Exhibit H to the Schedule 13D amendment
filed by the Offeror and the Mid Europa Entities on December 7,
2009).
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(b)
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Not
applicable.
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(d)(1)
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Letter
Agreement, dated October 30, 2009, among Hungarian Telecom (Netherlands)
Cooperatief U.A., Martin Lea and Vision 10 Limited (incorporated by
reference to Exhibit E to the Schedule 13D filed by the Offeror and the
Mid Europa Entities on November 12,
2009).
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(d)(2)
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Letter
Agreement, dated October 30, 2009, among Hungarian Telecom (Netherlands)
Cooperatief U.A., Robert Bowker and Rob Investments Limited (incorporated
by reference to Exhibit F to the Schedule 13D filed by the Offeror and the
Mid Europa Entities on November 12, 2009).
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(d)(3)
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Letter
Agreement, dated November 27, 2009, between Straumur-Burdaras Investment
Bank hf. and Hungarian Telecom (Netherlands) Cooperatief U.A.
(incorporated by reference to Exhibit G to the Schedule 13D amendment
filed by the Offeror and the Mid Europa Entities on November 27,
2009).
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(g)
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Not
applicable.
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(h)
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Not
applicable.
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*
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Previously
filed with the Schedule TO
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SIGNATURES
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: December
31, 2009
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/s/
Craig Butcher
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Craig
Butcher
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/s/
Nikolaus Bethlen
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Nikolaus
Bethlen
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/s/
Thierry Baudon
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Thierry
Baudon
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MID
EUROPA PARTNERS LLP
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/s/
Craig Butcher
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Signature
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Craig
Butcher, Senior Partner
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Name/Title
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MID
EUROPA III MANAGEMENT LIMITED
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/s/
Marcus Leese
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Signature
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Marcus Leese,
Director
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Name/Title
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MID EUROPA III GP LP
acting by
its general partner
MID
EUROPA III MANAGEMENT LIMITED
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/s/
Marcus Leese
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Signature
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Marcus Leese,
Director
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Name/Title
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MID EUROPA FUND III LP
acting
by its general partner
MID
EUROPA III GP LP itself acting by its general partner
MID
EUROPA III MANAGEMENT LIMITED
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/s/
Marcus Leese
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Signature
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Marcus Leese,
Director
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Name/Title
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HUNGARIAN TELECOM LP
acting by
its general partner
MID
EUROPA III MANAGEMENT LIMITED
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/s/
Marcus Leese
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Signature
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Marcus Leese,
Director
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Name/Title
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HUNGARIAN
TELECOM (NETHERLANDS) COOPERATIEF U.A.
acting by
its Managing Director, TRUST INTERNATIONAL MANAGEMENT (T.I.M.) B.V.
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/s/ Huug
Braamskamp
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/s/ Carolyn
Seeger
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Signature
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Signature
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Huug Braamskamp,
Attorney in Fact
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Carolyn Seeger,
Attorney in Fact
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Name/Title
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Name/Title
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and by
its Managing Director, EUROPE MANAGEMENT COMPANY B.V.
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/s/ Huug
Braamskamp
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/s/ Carolyn
Seeger
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Signature
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Signature
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Huug Braamskamp,
Attorney in Fact
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Carolyn Seeger,
Attorney in Fact
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Name/Title
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Name/Title
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EXHIBIT
INDEX
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(a)(1)(i)*
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Offer
to Purchase, dated December 7, 2009.
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(a)(1)(ii)*
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Letter
of Transmittal.
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(a)(1)(iii)*
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Notice
of Guaranteed Delivery.
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(a)(1)(iv)*
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Letter
to Brokers, Dealers, Banks, Trust Companies and Other
Nominees.
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(a)(1)(v)*
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Letter
to Clients for use by Brokers, Dealers, Banks, Trust Companies and Other
Nominees.
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(a)(1)(vi)*
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Form
of Acceptance for Invitel Shares.
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(a)(1)(vii)
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Press
release issued by Mid Europa Partners Limited on December 7, 2009
(incorporated by reference to Exhibit H to the Schedule 13D amendment
filed by the Offeror and the Mid Europa Entities on December 7,
2009).
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(b)
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Not
applicable.
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(c)
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Not
applicable.
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(d)(1)
|
|
Letter
Agreement, dated October 30, 2009, among Hungarian Telecom (Netherlands)
Cooperatief U.A., Martin Lea and Vision 10 Limited (incorporated by
reference to Exhibit E to the Schedule 13D filed by the Offeror and the
Mid Europa Entities on November 12, 2009).
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(d)(2)
|
|
Letter
Agreement, dated October 30, 2009, among Hungarian Telecom (Netherlands)
Cooperatief U.A., Robert Bowker and Rob Investments Limited (incorporated
by reference to Exhibit F to the Schedule 13D filed by the Offeror and the
Mid Europa Entities on November 12, 2009).
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(d)(3)
|
|
Letter
Agreement, dated November 27, 2009, between Straumur-Burdaras Investment
Bank hf. and Hungarian Telecom (Netherlands) Cooperatief U.A.
(incorporated by reference to Exhibit G to the Schedule 13D amendment
filed by the Offeror and the Mid Europa Entities on November 27,
2009).
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(f)*
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Relevant
Provisions of the Danish Public Companies Act (included as Schedule C to
the Offer to Purchase filed as Exhibit (a)(1)(i)).
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(g)
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Not
applicable.
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(h)
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Not
applicable.
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*
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Previously
filed with the Schedule TO
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