UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
AMENDMENT NO. 3
(RULE 14D-100)
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))
FINTECH
TELECOM, LLC
fintech
advisory inc.
david
martínez
(Name of Filing Persons (Offerors))
Class
B Shares, par value 1 Peso per share and
American Depositary Shares, each representing
five Class B Shares
(Title of Class of Securities)
Class
B Shares (ISIN ARP9028N1016)
American Depositary Shares (879273209)
(CUSIP Number of Class of Securities)
|
Julio R. Rodriguez, Jr.
c/o Fintech Advisory Inc.
375 Park Avenue
New York, NY 10152
(212)
593-4500 |
|
(Name, Address and Telephone Number of
Person
Authorized to Receive Notices and Communications
on behalf of the Filing Persons) |
|
With copies to:
Richard J. Cooper, Esq.
Adam J. Brenneman, Esq.
Cleary, Gottlieb, Steen & Hamilton
LLP
One Liberty Plaza
New York, New York 10006
(212) 225-2000 |
CALCULATION
OF FILING FEE
Transaction Valuation(1)
US$1,616,962,460.15 |
|
Amount of Filing Fee(2)
US$162,828.12 |
| ☒ | 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. |
| (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 Class B Shares (including Class B shares underlying the American Depositary Shares), other
than Class B Shares and ADSs owned directly or indirectly by the Filing Person at a purchase price of US$3.925 in cash per Class
B Share. As of December 31, 2015, there were 466,883,425 outstanding Class B Shares (including Class B Shares underlying the American
Depositary Shares), of which 54,918,467 Class B Shares (including Class B Shares underlying the American Depositary Shares) are
owned directly or indirectly by the Filing Person. As a result, this calculation assumes the purchase of 448,797,366 outstanding
Class B Shares (including Class B Shares underlying American Depositary Shares). |
| (2) | The amount of the filing fee, calculated in accordance with Rule 0-11(d) of the Securities Exchange Act of 1934, equals 0.0001007
of the transaction valuation. |
| Amount Previously Paid:US$162,828.12 |
Filing Party: Fintech Telecom, LLC |
| Form or Registration No.:005-49901 |
Date Filed: July 22, 2016 |
| |
|
| ☐ | 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:
| ☒ | third party tender offer subject to Rule 14d-1. |
| ☐ | issuer tender offer subject to 13e-4. |
| ☒ | 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) |
| ☒ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
This Amendment No.
3 (this “Amendment”) amends and supplements the Tender Offer Statement on a combined Schedule TO and Schedule
13E-3 under cover of Schedule TO originally filed on July 22, 2016 (together with any subsequent amendments and supplements thereto,
the “Schedule TO”) by FTL, FAI and David Martínez (the “Bidders”) and relates to the
offer by the Bidders to purchase any and all outstanding Class B shares, par value Ps. 1.00 per share (the “Class B Shares”),
including Class B Shares represented by American Depositary Shares (“ADSs”), of Telecom Argentina S.A., a corporation
organized under the laws of the Republic of Argentina (“TEO”).
The offer is being
made on the terms and conditions set forth in the offer to purchase dated September 15, 2016 (the “U.S. Offer to Purchase”)
attached hereto as Exhibit (a)(1)(i) and incorporated herein by reference and in the related documents (which, together with any
amendments or supplements thereto, collectively constitute the “U.S. Offer”). The U.S. Offer is being made in
conjunction with an offer by the FTL in Argentina for all outstanding Class B Shares (but not ADSs) (the “Argentine Offer,”
and together with the U.S. Offer, the “Offers”). The price offered in the Argentine Offer is the same as the
Offer Price in the U.S. Offer, payable in Argentine pesos or, at the election of the holders with U.S. dollar financial accounts,
payable in U.S. dollars in the case of the Argentine Offer. The Bidders do not intend to change the Offer Price and, while the
Offers are open, will not purchase or make any arrangements to purchase Securities, other than pursuant to the Offers. This Schedule
TO is intended solely for holders of Class B Shares that are U.S. residents (under the meaning of Rule 14d-1(d) under the U.S.
Securities Exchange Act of 1934, as amended) and holders of ADSs representing Class B Shares wherever located. The information
set forth in the U.S. Offer to Purchase is incorporated herein by reference with respect to Items 1 through 11 of this Schedule
TO. This Schedule TO is being filed on behalf of the Bidders. As permitted by General Instruction G to Schedule TO, this Schedule
TO also amends the Schedule 13D filed by the FTL, David Martínez, FAI, Sofora Telecomunicaciones S.A. and Nortel Inversora,
S.A. on August 24, 2016, with respect to the Class B Shares.
This Amendment is
being filed to amend and supplement Items 1, 4, 11 and 12 as reflected below. Except as otherwise set forth in this Amendment,
the information set forth in the Schedule TO remains unchanged.
Items 1, 4 and 11. Summary Term Sheet;
Terms of the Transaction; Additional Information.
Items 1, 4 and 11 of the Schedule TO
are hereby amended and supplemented as follows:
On October 5, 2016, the Bidders announced
an extension of the expiration of the U.S. Offer until 5:00 p.m., New York City time on October 28, 2016, unless further extended
(the “New Expiration Time”). The deadline for holders
to submit tax cost certificates in respect of Argentine capital gains tax withholding to the U.S. Receiving Agent is 11:59
p.m., New York City time, on October 21, 2016, which is the date that is five business days prior to the New Expiration Time.
The press release announcing the extension
of the U.S. Offer is attached hereto as Exhibit (a)(1)(xiii) and incorporated by reference herein.
Item 12. Exhibits.
| (a)(1)(i) | Offer to Purchase, dated September 15, 2016. |
| (a)(1)(ii) | U.S. Form of Acceptance for Shares. |
| (a)(1)(iii) | U.S. Form of Withdrawal for Shares. |
| (a)(1)(iv) | Form of Letter of Transmittal with respect to the ADSs. |
| (a)(1)(v) | Form of Letter to Broker for ADSs. |
| (a)(1)(vi) | Form of Letter to Clients for use by Broker for ADSs. |
| (a)(1)(vii) | Form of Letter to Broker for Shares. |
| (a)(1)(viii) | Form of Letter to Clients for use by Broker for Shares. |
| (a)(1)(ix) | Notice of Offer to Purchase Shares of Class B Shares Issued by FTL, as made public on February 24, 2016. (English translation)
(incorporated herein by reference to Exhibit 1 of the FTL’s pre-commencement communication filing on Schedule TO on February
24, 2016). |
| (a)(1)(x) | Form of summary advertisement published on September 15, 2016. |
| (a)(1)(xi) | Text of Press Release issued by the Bidders on September 15, 2016. |
| (a)(1)(xii) | Notice in Argentina of Mandatory Tender Offer in respect of Class B Shares listed in “Mercado de Valores de Buenos
Aires S.A.” issued by Telecom Argentina S.A., as made public on September 14, 2016 (English translation)
(incorporated herein by reference to Exhibit 99.1 of FTL's pre-commencement communication filing on Schedule TO-C on
September 14, 2016). |
| (a)(1)(xiii) | Text of Press Release issued by the Bidders on October 5, 2016. |
| (a)(1)(xiv) | Notice in Argentina of Mandatory Tender Offer in respect of Class B Shares listed in “Mercado de Valores de Buenos
Aires S.A.” issued by Telecom Argentina S.A., as made public on October 5, 2016 (English translation). |
| (b)(i) | Amended and Restated Master Financing Agreement, dated as of March 16, 2016, between FIL and FAI (incorporated herein by reference
to Exhibit 14 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (c)(i) | Valuation Report issued by Quantum Finanzas, S.A., an independent firm, dated March 17, 2016 (English translation) (incorporated
herein by reference to Item 4 of TEO’s report on Form 6-K furnished to the SEC on April 5, 2016). |
| (c)(ii) | Valuation Report issued by Buenos Aires Advisors, S.C., an independent firm, dated February 23, 2016 (English translation)
(incorporated herein by reference to Item 5 of TEO’s report on Form 6-K furnished to the SEC on April 5, 2016). |
| (c)(iii) | Valuation Report issued by Columbus MB, S.A., an independent firm, dated March 9, 2016 (English translation) (incorporated
herein by reference to Item 6 of TEO’s report on Form 6-K furnished to the SEC on April 5, 2016). |
| (d)(i) | Amended and Restated Deed of Adherence, dated as of October 24, 2014, among the TI Entities, the FTL and the Werthein Group
(incorporated herein by reference to Exhibit 1 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(ii) | Amended and Restated Drag Waiver Memorandum of Understanding, dated as of October 24, 2014, among W de Argentina – Inversiones
S.A., Los W S.A., Messrs. Daniel Werthein, Adrian Werthein, Gerardo Werthein and Dario Werthein, and the TI Entities (incorporated
herein by reference to Exhibit 2 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(iii) | Amended and Restated Guaranty, dated as of October 24, 2014, among the FTL and the TI Entities (incorporated herein by reference
to Exhibit 3 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(iv) | Amended and Restated Mutual Shareholder Release, dated as of October 24, 2014, among the TI Entities and the Werthein Group
(incorporated herein by reference to Exhibit 4 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(v) | Amended and Restated Stock Purchase Agreement, dated as of October 24, 2014, among the FTL, the TI Entities and TAR (incorporated
herein by reference to Exhibit 5 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(vi) | Amended and Restated Third Amendment to the Shareholders’ Agreement, dated as of October 24, 2014, among the TI Entities
and the Werthein Group (incorporated herein by reference to Exhibit 6 of the FTL’s report on Schedule 13D furnished to the
SEC on March 18, 2016). |
| (d)(vii) | Amended and Restated Transition Services Memorandum of Understanding, dated as of October 24, 2014, among the FTL and the TI
Entities (incorporated herein by reference to Exhibit 7 of the FTL’s report on Schedule 13D furnished to the SEC on March
18, 2016). |
| (d)(viii) | Amended and Restated Waiver, dated as of October 24, 2014, among the TI Entities and the Werthein Group, acknowledged by the
FTL (incorporated herein by reference to Exhibit 8 of the FTL’s report on Schedule 13D furnished to the SEC on March 18,
2016). |
| (d)(ix) | Drag Rights Letter Agreement, dated as of October 24, 2014, among the FTL, the TI Entities and the Werthein Group (incorporated
herein by reference to Exhibit 9 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(x) | Note Purchase Agreement, dated as of October 24, 2014, between TII and the FTL (incorporated herein by reference to Exhibit
10 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(xi) | Purchase Release, dated as of October 24, 2014, among the TI Entities and the FTL (incorporated herein by reference to Exhibit
11 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(xii) | Note Pledge Agreement, dated as of October 29, 2014, among the FTL and the TI Entities (incorporated herein by reference to
Exhibit 12 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(xiii) | Replacement Note, dated as of March 8, 2016, issued by TII (incorporated herein by reference to Exhibit 13 of the FTL’s
report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(xiv) | Amendment No. 1 to the Amended and Restated Transition Services Memorandum of Understanding, dated as of June 8, 2016, among
the TI Entities and the Bidders (incorporated herein by reference to Exhibit (d)(xiv) to FTL's report on Schedule TO
furnished to the SEC on July 22, 2016). |
| (d)(xv) | Tender Offer Commitment Letter, dated as of August 19, 2016, from Fintech Investments Ltd. to FAI (incorporated herein by reference
to Exhibit (d)(xiv) to FTL's report on Schedule TO furnished to the SEC on August 19, 2016). |
Item 13. Information Required by Schedule 13E–3.
The information set forth in the
U.S. Offer to Purchase is incorporated by reference herein in answer to Items 1 through 16 of Schedule 13E–3, except to those
items as to which information is specifically provided below.
Item 2 to Schedule 13E–3.
Subject Company Information
| (e) | Prior Public Offerings: None. |
Item
13 to Schedule 13E-3. Financial Information
| (a)(1) | TEO’s audited consolidated financial statements included in pp. F-1 to F-98 of its annual report on Form 20-F for the
fiscal year ended December 31, 2015 are incorporated herein by reference. |
| (a)(2) | Financial Information: Not Applicable. |
| (b) | Pro forma financial information: Not Applicable. |
The financial information incorporated herein by reference may be obtained in the manner described under “Where You
Can Find More Information About TEO” in “THE TENDER OFFER - Section
8. Certain Information About TEO” of the U.S. Offer to Purchase.
Item 14 to Schedule 13E–3. Persons/Assets,
Retained, Employed, Compensated or Used.
| (b) | Employees and Corporate Assets: None. |
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 5, 2016
| DAVID MARTÍNEZ |
| By: |
/s/ |
David
Martínez |
| FINTECH ADVISORY, INC. |
| By: |
/s/ |
David
Martínez |
| Name: |
|
David Martínez |
| Title: |
|
Chairman |
| FINTECH TELECOM LLC |
| By: |
/s/ |
Julio
Rafael Rodriguez, Jr. |
| Name: |
|
Julio Rafael Rodriguez, Jr. |
| Title: |
|
Authorized Signatory |
EXHIBIT INDEX
| (a)(1)(i) | Offer to Purchase, dated September 15, 2016. |
| (a)(1)(ii) | U.S. Form of Acceptance for Shares. |
| (a)(1)(iii) | U.S. Form of Withdrawal for Shares. |
| (a)(1)(iv) | Form of Letter of Transmittal with respect to the ADSs. |
| (a)(1)(v) | Form of Letter to Broker for ADSs. |
| (a)(1)(vi) | Form of Letter to Clients for use by Broker for ADSs. |
| (a)(1)(vii) | Form of Letter to Broker for Shares. |
| (a)(1)(viii) | Form of Letter to Clients for use by Broker for Shares. |
| (a)(1)(ix) | Notice of Offer to Purchase Shares of Class B Shares Issued by FTL, as made public on February 24, 2016. (English translation)
(incorporated herein by reference to Exhibit 1 of the FTL’s pre-commencement communication filing on Schedule TO on February
24, 2016). |
| (a)(1)(x) | Form of summary advertisement published on September 15, 2016. |
| (a)(1)(xi) | Text of Press Release issued by the Bidders on September 15, 2016. |
| (a)(1)(xii) | Notice in Argentina of Mandatory Tender Offer in respect of Class B Shares listed in “Mercado de Valores de Buenos
Aires S.A.” issued by Telecom Argentina S.A., as made public on September 14, 2016 (English translation)
(incorporated herein by reference to Exhibit 99.1 of FTL's pre-commencement communication filing on Schedule TO-C on
September 14, 2016). |
| (a)(1)(xiii) | Text of Press Release issued by the Bidders on October 5, 2016. |
| (a)(1)(xiv) | Notice in Argentina of Mandatory Tender Offer in respect of Class B Shares listed in “Mercado de Valores de Buenos
Aires S.A.” issued by Telecom Argentina S.A., as made public on October 5, 2016 (English translation). |
| (b)(i) | Amended and Restated Master Financing Agreement, dated as of March 16, 2016, between FIL and FAI (incorporated herein by reference
to Exhibit 14 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016).
|
| (c)(i) | Valuation Report issued by Quantum Finanzas, S.A., an independent firm, dated March 17, 2016 (English translation) (incorporated
herein by reference to Item 4 of TEO’s report on Form 6-K furnished to the SEC on April 5, 2016).
|
| (c)(ii) | Valuation Report issued by Buenos Aires Advisors, S.C., an independent firm, dated February 23, 2016 (English translation)
(incorporated herein by reference to Item 5 of TEO’s report on Form 6-K furnished to the SEC on April 5, 2016).
|
| (c)(iii) | Valuation Report issued by Columbus MB, S.A., an independent firm, dated March 9, 2016 (English translation) (incorporated
herein by reference to Item 6 of TEO’s report on Form 6-K furnished to the SEC on April 5, 2016). |
| (d)(i) | Amended and Restated Deed of Adherence, dated as of October 24, 2014, among the TI Entities, the FTL and the Werthein Group
(incorporated herein by reference to Exhibit 1 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(ii) | Amended and Restated Drag Waiver Memorandum of Understanding, dated as of October 24, 2014, among W de Argentina – Inversiones
S.A., Los W S.A., Messrs. Daniel Werthein, Adrian Werthein, Gerardo Werthein and Dario Werthein, and the TI Entities (incorporated
herein by reference to Exhibit 2 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(iii) | Amended and Restated Guaranty, dated as of October 24, 2014, among the FTL and the TI Entities (incorporated herein by reference
to Exhibit 3 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(iv) | Amended and Restated Mutual Shareholder Release, dated as of October 24, 2014, among the TI Entities and the Werthein Group
(incorporated herein by reference to Exhibit 4 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(v) | Amended and Restated Stock Purchase Agreement, dated as of October 24, 2014, among the FTL, the TI Entities and TAR (incorporated
herein by reference to Exhibit 5 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(vi) | Amended and Restated Third Amendment to the Shareholders’ Agreement, dated as of October 24, 2014, among the TI Entities
and the Werthein Group (incorporated herein by reference to Exhibit 6 of the FTL’s report on Schedule 13D furnished to the
SEC on March 18, 2016). |
| (d)(vii) | Amended and Restated Transition Services Memorandum of Understanding, dated as of October 24, 2014, among the FTL and the TI
Entities (incorporated herein by reference to Exhibit 7 of the FTL’s report on Schedule 13D furnished to the SEC on March
18, 2016). |
| (d)(viii) | Amended and Restated Waiver, dated as of October 24, 2014, among the TI Entities and the Werthein Group, acknowledged by the
FTL (incorporated herein by reference to Exhibit 8 of the FTL’s report on Schedule 13D furnished to the SEC on March 18,
2016). |
| (d)(ix) | Drag Rights Letter Agreement, dated as of October 24, 2014, among the FTL, the TI Entities and the Werthein Group (incorporated
herein by reference to Exhibit 9 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(x) | Note Purchase Agreement, dated as of October 24, 2014, between TII and the FTL (incorporated herein by reference to Exhibit
10 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(xi) | Purchase Release, dated as of October 24, 2014, among the TI Entities and the FTL (incorporated herein by reference to Exhibit
11 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(xii) | Note Pledge Agreement, dated as of October 29, 2014, among the FTL and the TI Entities (incorporated herein by reference to
Exhibit 12 of the FTL’s report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(xiii) | Replacement Note, dated as of March 8, 2016, issued by TII (incorporated herein by reference to Exhibit 13 of the FTL’s
report on Schedule 13D furnished to the SEC on March 18, 2016). |
| (d)(xiv) | Amendment No. 1 to the Amended and Restated Transition Services Memorandum of Understanding, dated as of June 8, 2016, among
the TI Entities and the Bidders (incorporated herein by reference to Exhibit (d)(xiv) to FTL's report on Schedule TO
furnished to the SEC on July 22, 2016). |
| (d)(xv) | Tender Offer Commitment Letter, dated as of August 19, 2016, from Fintech Investments Ltd. to FAI (incorporated herein by reference
to Exhibit (d)(xiv) to FTL's report on Schedule TO furnished to the SEC on August 19, 2016). |