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Share Name | Share Symbol | Market | Type |
---|---|---|---|
Net Servicos de Comunicacao S.A. ADS Each Representing One Preferred Share (MM) | NASDAQ:NETC | NASDAQ | Common Stock |
Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|---|---|
0.00 | 0.00% | 8.30 | 0 | 01:00:00 |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule TO
(Amendment No. 4)
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
NET SERVIÇOS DE COMUNICAÇÃO S.A.
(Name of Subject Company)
EMPRESA BRASILEIRA DE TELECOMUNICAÇÕES S.A. EMBRATEL
EMBRATEL PARTICIPAÇÕES S.A.
(Offerors)
(Name of Filing Persons)
Preferred Shares, no par value, and
American Depositary Shares, each representing one Preferred Share
(Title of Class of Securities)
N/A (Preferred Shares)
64109T201 (American Depositary Shares)
(CUSIP Number of Class of Securities)
Isaac Berensztejn
Chief Financial Officer
Empresa Brasileira de Telecomunicações S.A. Embratel
Av. Presidente Vargas, n° 1012
20071-002 Rio de Janeiro, RJ, Brazil
Telephone: (55) 21 2121-3636
with copies to
Nicolas Grabar, Esq.
Neil Whoriskey, Esq.
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
Telephone: (212) 225-2000
(Name, Addresses and Telephone Numbers of Persons Authorized to Receive Notices and Communications on Behalf of Filing Persons)
CALCULATION OF FILING FEE
|
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Transaction Valuation (1) | Amount of Filing Fee (2 ) | |
$72,329,522.68 |
$8,302.90 | |
|
||
|
(1) | Estimated for purposes of calculating the filing fee pursuant to Rule 0-11(d) only. The Transaction Valuation was calculated assuming the purchase of all outstanding Preferred Shares, no par value (including Preferred Shares represented by American Depositary Shares), other than shares owned directly or indirectly by the Filing Persons at a purchase price of R$29.02 in cash per Preferred Share. As of August 19, 2013, there were 228,503,916 Preferred Shares outstanding (including Preferred Shares represented by American Depositary Shares), of which 223,080,448 are owned directly or indirectly by the Filing Persons. As a result, this calculation assumes the purchase of 5,423,468 outstanding Preferred Shares. The Transaction Valuation was calculated in Brazilian reais (R$) and converted into U.S. dollars at the exchange rate in effect on October 11, 2013 of U.S.$1 = R$2.176, as reported by Bloomberg L.P. |
(2) | The total filing fee of $8,302.90 was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and is the sum of (i) $8,176.57 (paid on August 13, 2012), which is the product of $71,348,734.58 (the transaction value calculated at the exchange rate in effect on August 8, 2012 of U.S.$1 = R$2.025, as reported by Bloomberg L.P.) and 0.0001146 (the Fee Rate then in effect based on Fee Rate Advisory #3 for fiscal year 2012, issued September 29, 2011), and (ii) $126.33 (paid on October 17, 2013), which is the product of $980,788.10 (the difference between the previous transaction value of $71,348,734.58 and the current Transaction Value of $72,329,522.68) and 0.0001288 (the Fee Rate currently in effect based on Fee Rate Advisory #1 for fiscal year 2014, issued on August 30, 2013). |
x | Check 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: $8,302.90 |
Filing Parties: Empresa Brasileira de Telecomunicações S.A. Embratel
and
Embratel Participações S.A. |
|||
Form or Registration No: Schedule TO | Dates Filed: August 13, 2012 and October 17, 2013 |
¨ |
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. |
x | going-private transaction subject to Rule 13e-3. |
¨ | 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: ¨
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
¨ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
x | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
This Amendment No. 4 (this Amendment) amends and supplements the Tender Offer Statement on the combined Schedule TO and Schedule 13E-3 under cover of Schedule TO filed with the Securities and Exchange Commission on August 14, 2013, as previously amended and supplemented (the Schedule TO), by Empresa Brasileira de Telecomunicações S.A.Embratel (Embratel) and Embratel Participações S.A. (Embrapar and, together with Embratel, the Offerors). The Schedule TO relates to the offer (the Offer) by the Offerors to purchase any and all of the outstanding common shares, no par value (Common Shares), and preferred shares, no par value (Preferred Shares), including Preferred Shares represented by American Depositary Shares (ADSs) of Net Serviços de Comunicação S.A. (Net), other than those held by the Offerors or their affiliates. The Offer is being made upon the terms and subject to the conditions set forth in the offer to purchase dated October 17, 2013 (the Offer to Purchase) and the related ADS letter of transmittal attached and filed with the Schedule TO as Exhibits (a)(1)(i) and (a)(1)(ii), respectively.
Items 1 through 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, are hereby amended and supplemented as described below. All page references in this Amendment refer to the Offer to Purchase. Capitalized terms used in this Amendment without definition shall have the meanings specified in the Schedule TO.
COVER PAGE
The following new sentences are inserted after the third sentence of the first paragraph on the cover page of the Offer to Purchase:
The amount of accrued interest on the base offer price will continue to increase each Brazilian business day through the Auction Date. More recent information about the CDI Rate and the base offer price plus accrued interest on the base offer price will be provided and updated each Brazilian business day for illustrative purposes on Embratels website at http://www.embratel.com.br/Embratel02/cda/portal/0,2997,RI_P_8832,00.html . The Offerors will announce the base offer price plus accrued interest on the base offer price through the date ten business days prior to the Expiration Date on that date in a statement of material fact and on Embratels website.
SUMMARY TERM SHEET
The following new sentences are inserted after the third sentence of the first bullet entitled The Tender Offer on page 1 of the Offer to Purchase:
The amount of accrued interest on the base offer price will continue to increase each Brazilian business day through the Auction Date. More recent information about the CDI Rate and the base offer price plus accrued interest on the base offer price will be provided and updated each Brazilian business day for illustrative purposes on Embratels website at http://www.embratel.com.br/Embratel02/cda/portal/0,2997,RI_P_8832,00.html. The Offerors will announce the base offer price plus accrued interest on the base offer price through the date ten business days prior to the Expiration Date on that date in a statement of material fact and on Embratels website.
The following new sentences are inserted after the third sentence of the response to the question entitled How much are you offering to pay? What is the form of payment? on page 6 of the Offer to Purchase:
The amount of accrued interest on the base offer price will continue to increase each Brazilian business day through the Auction Date. More recent information about the CDI Rate and the base offer price plus accrued interest on the base offer price will be provided and updated each Brazilian business day for illustrative purposes on Embratels website at http://www.embratel.com.br/Embratel02/cda/portal/0,2997,RI_P_8832,00.html. The Offerors will announce the base offer price plus accrued interest on the base offer price through the date ten business days prior to the Expiration Date on that date in a statement of material fact and on Embratels website.
INTRODUCTION
The following new sentences are inserted after the third sentence of the first paragraph on page 16 of the Offer to Purchase:
The amount of accrued interest on the base offer price will continue to increase each Brazilian business day through the Auction Date. More recent information about the CDI Rate and the base offer price plus accrued
2
interest on the base offer price will be provided and updated each Brazilian business day for illustrative purposes on Embratels website at http://www.embratel.com.br/Embratel02/cda/portal/0,2997,RI_P_8832,00.html. The Offerors will announce the base offer price plus accrued interest on the base offer price through the date ten business days prior to the Expiration Date on that date in a statement of material fact and on Embratels website.
SPECIAL FACTORS Valuation Report of BTG Pactual
The first paragraph on page 38 of the Offer to Purchase is hereby amended and restated in its entirety to read as follows:
The estimated cost of equity was based on (i) a relevered beta of 0.882, which is derived from the average of betas for the two years ended May 25, 2012 of comparable companies operating in the telecommunications sector in Brazil, in each case unlevered by such companys capital structure and levered by Nets capital structure, (ii) a risk-free rate of 3.06%, which is based on the average price of 10-year U.S. treasury notes for the period of 1,080 trading days ended May 25, 2012, (iii) a country risk premium of 2.45%, which is based on the average price of the JPMorgan Chase Bank Emerging Markets Bond Index Plus ( EMBI +) Brazil spread for the same period utilized to calculate the risk-free rate, and (iv) a market risk premium of 6.62%, which represents the estimated long-term expected equity risk premium (historical) as calculated in the 2012 Ibbotson Report.
The first sentence of the fourth paragraph on page 38 of the Offer to Purchase is hereby amended and restated in its entirety to read as follows:
The enterprise value of Net (the Enterprise Value), according to the DCF methodology and based on the assumptions set forth above, was calculated as the sum of (i) the present value of free cash flows to the firm on March 31, 2012 of US$537 million, projected for a time horizon of ten years in nominal terms in Brazilian reais , converted to U.S. dollars at the average exchange rate estimated for each year, discounted at WACC in nominal U.S. dollars of 9.71%; and (ii) the present value of perpetuity (the sum of cash flows generated in all years after the 2012-2021 annual projections) of US$5,383 million on March 31, 2012, discounted at the same rate used for the free cash flows to the firm during the ten-year period.
SPECIAL FACTORS Interests of Certain Persons in the Tender Offer; Security Ownership; Transactions and Arrangements Concerning the Common Shares, Preferred Shares and ADSs
The second paragraph under the section entitled Ownership of Shares of Net and Intent to Tender on page 40 of the Offer to Purchase is hereby amended and restated in its entirety to read as follows:
In accordance with Nets bylaws, each member of the companys board of directors must also be a shareholder of the company. Accordingly, upon becoming a member of the board of directors of Net in April 2012, Oscar Von Hauske Solis, Antonio Oscar de Carvalho Petersen Filho, Carlos Hernán Zenteno de Los Santos, Antonio João Filho, José Antônio Guaraldi Felix and Fernando Carlos Ceylão Filho were each given one Common Share by Net. As described in Schedule 1 and in Annex B to Nets Solicitation/Recommendation Statement on Schedule 14D-9, Mr. Von Hauske Solis, Mr. Moreira, Mr. Formoso Martínez, Mr. Berensztejn, Mr. Petersen Filho, Mr. Filho and Mr. Zenteno de Los Santos serve both as directors of Net and as officers and/or directors of the Offerors or their affiliates. Other than those individuals, to the best of our knowledge, none of the directors or executive officers of Embratel or Embrapar, or any of the persons who may be deemed to control us, Telmex Internacional S.A.B de C.V. (Telmex Internacional), América Móvil, S.A.B. de C.V. (América Móvil), or the members of the Slim Family (as defined below) listed on Schedule 1, beneficially own any Common Shares or Preferred Shares (other than Common Shares and Preferred Shares held by us) or have engaged in transactions in Common Shares or Preferred Shares since January 6, 2012 (60 days prior to the announcement of the tender offer).
3
THE TENDER OFFER 1. Terms of the Tender Offer and Expiration Date General
The following new sentences are inserted after the third sentence of the first paragraph on page 44 of the Offer to Purchase:
The amount of accrued interest on the base offer price will continue to increase each Brazilian business day through the Auction Date. More recent information about the CDI Rate and the base offer price plus accrued interest on the base offer price will be provided and updated each Brazilian business day for illustrative purposes on Embratels website at http://www.embratel.com.br/Embratel02/cda/portal/0,2997,RI_P_8832,00.html. The Offerors will announce the base offer price plus accrued interest on the base offer price through the date ten business days prior to the Expiration Date on that date in a statement of material fact and on Embratels website.
Item 12. Exhibits
Item 12 is hereby amended and supplemented by adding the following exhibit:
Exhibit No. |
Description |
|
(a)(1)(viii) | Text of Press Release issued by the Offerors on November 8, 2013 relating to the filing of Amendment No. 4 to Schedule TO. |
4
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: November 8, 2013
EMPRESA BRASILEIRA DE
TELECOMUNICAÇÕES S.A. EMBRATEL |
||
By: |
/s/ Isaac Berensztejn |
|
Name: |
Isaac Berensztejn | |
Title: |
Officer | |
EMBRATEL PARTICIPAÇÕES S.A. | ||
By: |
/s/ Isaac Berensztejn |
|
Name: |
Isaac Berensztejn | |
Title: |
Chief Financial Officer |
5
EXHIBIT INDEX
6
* | Previously filed. |
7
1 Year Net Servicos de Comunicacao S.A. ADS Each Representing One Preferred Share (MM) Chart |
1 Month Net Servicos de Comunicacao S.A. ADS Each Representing One Preferred Share (MM) Chart |
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