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
EMPRESA DISTRIBUIDORA Y COMERCIALIZADORA NORTE S.A. (EDENOR)
(Name of Subject Company (Issuer))
EMPRESA DE ENERGÍA DEL CONO SUR S.A.
(Names of Filing Persons (Offerors))
CLASS B COMMON SHARES, par value 1 Peso per share
(Title of Class of Securities)
29244A102
(CUSIP Number)
Nicolas Mallo Huergo
c/o Maipú 1252, 12th floor,
City of Buenos Aires, (CP1006),
Argentina
With a copy to:
Christopher C. Paci, Esq.
J.A. Glaccum, Esq.
Nicolas Teijeiro, Esq.
DLA Piper LLP (US)
1251 6th Ave
New York, NY 10020
(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: N.A | Filing Party: N/A |
Form or Registration No.: N/A | Date Filed: N/A |
☒ | 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. |
o | issuer tender offer subject to 13e-4. |
o | 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: □
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) |
☒ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
Explanatory Note
This notification relates to a possible tender offer (the “OPA”) by Empresa de Energía del Cono Sur S.A., a sociedad anónima organized under the laws of Argentina (“Edelcos”), for all of the Class B Common shares, P$1.00 par value per share, of Empresa Distribuidora y Comercializadora de Energía Norte S.A. (“Edenor”), an Argentine corporation (the “Shares”). On the date hereof, Edelcos issued a notice (the “Notification”) in Argentina relating to the possible tender offer. An English-language free translation of the Notification is attached as Exhibit 99.1.
This Notification is neither an offer to purchase nor a solicitation of an offer to sell any securities. Edelcos has not commenced a tender offer for the shares. In connection with the proposed transaction, Edelcos intends to file with the U.S. Securities and Exchange Commission a Tender Offer Statement and related materials on Schedule TO, and Edenor would file a Solicitation Recommendation on Schedule 14D-9. Investors and security holders 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, Edelcos will provide copies of such documents free of charge to investors and security holders.
ANNOUNCEMENT
Only to be used within the Republic of Argentina
EMPRESA DE ENERGÍA DEL CONO SUR S.A.
ANNOUNCES MANDATORY TENDER OFFER
in respect of
CLASS B COMMON SHARES
listed on the BYMA and CLASS C COMMON SHARES
issued by
Empresa Distribuidora y Comercializadora Norte S.A.
This announcement is made public pursuant to the provisions of Argentine Law No. 26,831, as amended (including, but not limited to, Law No. 27,440), (the “Capital Markets Law”), applicable to tender offers of marketable securities and contains the main features of the offer, which is subject to the prior formal approval of the Argentine Securities Commission (Comisión Nacional de Valores, or the “CNV”).
Pursuant to the provisions of Section 87 and the subsequent sections of the Capital Markets Lawand Chapter II, Title III of the CNV Rules (T.O. 2013) (the “CNV Rules”, and together with the Capital Markets Law, the “OPA Rules”) in connection with mandatory tender offers in case of a change of control, having effectively acquired a controlling interest in Empresa Distribuidora y Comercializadora Norte S.A. (“Edenor”), Empresa de Energía del Cono Sur S.A. (“Edelcos” or the “Offeror”) announces the promotion of a mandatory tender offer (the “Offer” or the “Mandatory Tender Offer”) addressed to all the shareholders of Edenor, holding Class B shares (the “Class B Shares”) and Class C shares (the “Class C Shares” and together with the Class B Shares, the “Shares”, and individually each of them, a “Share”) with a par value of Ps.1 each and the right to one vote per issued and outstanding share, free and clear of any lien, pledge or precautionary measure and not owned directly or indirectly by the Offeror at the time of the Offer. The Class B Shares are listed on the Buenos Aires Securities Market (Bolsas y Mercados Argentinos, or the “BYMA”). The terms and conditions of the Offer will be included in detail in the prospectus that will eventually be published after obtaining such approval (the “Prospectus”).
Additionally, pursuant to the Transaction (as defined below), Pampa Energía S.A. (“Pampa”) has undertaken to acquire, subject to the satisfaction of certain conditions precedent, including, without limitation, (A) the absence of an event of default with respect to certain affirmative and negative covenants made by Edelcos in connection with the financing of a portion of the price for the acquisition of a controlling interest in Edenor, and (B) the absence of an event of default under the Edenor Class 9 Notes, the lesser of (i) 90% of the Class B Shares tendered and accepted in the Offer and (ii) the number of Class B Shares representing 35% of the capital stock and voting rights of Edenor. Notwithstanding the Transaction, pursuant to the CNV Rules, Pampa is not obliged to promote, formulate or launch the Offer, nor has it taken any part in the determination or formulation of any of the terms and conditions of the Offer.
1) | The Offeror. |
Edelcos, CUIT No. 30-71702715-5, is a corporation (sociedad anónima) organized under the laws of the Republic of Argentina with its registered office at Maipú 1252, 12th floor, in the City of Buenos Aires, Argentina. Edelcos currently has no securities admitted to trading.
Edelcos is 95% owned by South American Energy LLP, a limited liability partnership organized under the laws of the United Kingdom of Great Britain and Northern Ireland and registered with the Companies House of such jurisdiction under number OC434488. It is registered pursuant to the terms of Section 123 of Law 19,550 as of July 5, 2021, and its registered office is located at Espejo 65, 2nd Floor, Department “F”, City of Mendoza, Province of Mendoza.
2) | Background of the Offer. |
As announced through the filing of relevant matters filed by Pampa and Edenor, on December 28, 2020, Edelcos agreed with Pampa to acquire a controlling interest in Edenor through the acquisition of all of Edenor’s Class A shares, representing 51% of the capital stock and voting rights of Edenor, subject to the satisfaction of certain conditions precedent, including, the approval of Pampa’s shareholders’ meeting and the authorization of the Ente Nacional Regulador de la Electricidad (the “Transaction”). The purchase price of the Class A shares consists of (i) 21,876,856 Class B shares of Edenor, representing 2.41% of the capital stock and votes of Edenor; (ii) US$95,000,000; and (iii) a contingent payment in the event of a change of control of the Offeror or Edenor during the first year after the closing of the Transaction or as long as the balance of the price remains due. For further information on the purchase price, please refer to Pampa's relevant matter published on December 28, 2020, on the website of the CNV www.argentina.gob.ar/cnv. The closing of the Transaction occurred on June 30, 2021, and Edelcos became obligated to launch the Offer pursuant to the OPA Rules, within 30 days of the effective change of control.
The board of directors of Edelcos, at its meeting held on June 28, 2021, has approved (i) the Offer, representing that it has available economic resources as are necessary to pay the price of the Offer and (ii) the price per Share for the Offer.
3) | The Mandatory Tender Offer. |
The Offer consists of a mandatory tender offer for Shares at a price per Share to be paid in cash in Pesos.
The Offer will be irrevocable and may be modified only in compliance with the provisions of the OPA Rules or the Prospectus. The Offer shall be voluntarily accepted by the shareholders of Edenor and, therefore, the holders of Shares may elect to participate in the Mandatory Tender Offer or keep their holdings of shares.
This Offer is promoted and formulated to comply with the provisions of the OPA Rules in connection with the change of control of Edenor.
4) | Mandatory Tender Offer Price. |
As sole consideration and in accordance with the guidelines set forth in the OPA Rules, the Offeror is offering Ps. 29.34 per Share (the “Offered Price”) (less any cash dividends per Share paid by Edenor from the date of this announcement until the settlement date and other expenses such as transfer expenses, duties, fees, commissions, taxes, levies or contributions). The Offered Price will be paid in Argentine pesos within 5 business days following expiration of the Offer Period (as defined below).
The Offered Price is equitable and was determined in accordance with the standards set forth in the OPA Rules. In this regard, Edelcos received the report of an independent auditor, PKF Audisur S.R.L., as set forth in Section 10(c), Section IV, Chapter II, Title III of the CNV Rules. This report will be filed with the CNV together with the tender offer application and disseminated to investors through the CNV's financial information highway. Notwithstanding the foregoing, the Offered Price may be objected by the CNV or challenged by minority shareholders.
5) | Term and Conditions to the Offer. |
The Offer shall be open for a period of 20 (twenty) business days (the “General Term”) and, at the Offeror's option, may be extended for an additional period of not less than 5 (five) business days (the “Additional Term”) for those shareholders who have not accepted it within the General Term, to do so within the Additional Term, by the same means and on the same terms and conditions as those granted to those who have expressed their opinion within the General Term. The start date of the General Term will be announced through a notice by this means once the authorization of the CNV has been obtained and the other conditions precedent to which the Offer is subject have been satisfied. Edelcos may extend the General Term and/or, if applicable, the Additional Term pursuant to applicable rules. The “Offer Period” will be the period from the beginning of the General Term through 3:00 p.m. on the last day of the General Term or the Additional Term, as applicable.
6) | Guarantee. |
Pursuant to Article 21, Section V, Chapter II, of Title III of the CNV Rules, the Offeror agreed with Compañía de Seguros Insur S.A. the issuance of a surety insurance policy to guarantee its obligations under the Offer (the “Guarantee”). The Offeror contemplates the possibility of providing additional guarantees, which may be syndicated.
7) | Conditions to the Offer. |
The Offer shall be an irrevocable offer, and shall not be amended, revoked or otherwise cease to be in force and effect other than in accordance with the terms hereof and with the provisions of the Prospectus and any applicable rules and regulations.
However, the execution of the Offer is subject to, among other conditions set forth in the Prospectus, the occurrence of the following, prior to the commencement of the Offer Period: the authorization of the CNV of the Offer, under the terms formulated by Edelcos, shall have been obtained and be in full force and effect, in accordance with applicable regulations.
The Offer implicates an economic concentration in the Argentina in accordance with the Antitrust Law No. 27,442. Edelcos notified the Transaction before the National Antitrust Commission (the "CNDC”) on July 7, 2021. The Offer is not conditioned to the prior authorization of the CNDC.
8) | Participation |
As of the date of this announcement, Edelcos does not have any interest in the capital stock of Edenor other than that acquired through the Transaction.
9) | Tax Withholding. |
The Offered Price will be paid net of any applicable income tax. Foreign beneficiaries residing in non-cooperative jurisdictions and funds invested originating in non-cooperative jurisdictions will be subject to income tax on capital gains from the disposal of the Shares, at a rate of 35% on the net gain (see Decree No. 279/2018 (B.O. 09.04.2018)). In addition, General Resolution (AFIP) No. 4227/2018 (B.O. 12.04.2018), regulated -among others- the mechanism for withholding and payment of capital gains tax obtained by foreign beneficiaries.
10) | Tender Offer Agent |
Global Valores S.A. (Integral Clearing and Settlement Agent (Agente de Liquidación y Compensación Integral), CNV Assigned Registration Number 37 of the CNV, BYMA Member No. 59, MAE Agent No. 659, ROFEX Agent No. 425), domiciled in Ortiz de Ocampo 3302, Module 1, 5th Floor, UF 623, City of Buenos Aires, Argentine, is the Tender Offer Agent, copies of this announcement and the Prospectus will be available at its offices.
11) | Miscellaneous. |
Payment of the Offered Price will occur within 5 Business Days after the expiration of the General Term or the Additional Term of the Offer, as applicable. The Offeror will announce the definitive payment date of the Offered Price in the press release announcing the results of the Offer, once the Offer Period has expired.
Edelcos hereby declares that it does not intend to deregister the Shares from public offering.
This announcement and the information contained herein are for informational purposes only and do not constitute and shall not be construed as an offer to acquire shares or an invitation to transfer shares (including, without limitation, the Shares). The definitive terms and conditions of the Offer shall be described in the Prospectus and in any other document relating to the Offer, which will be published in accordance with CNV Rules once the CNV grants its authorization for the Offer to commence in accordance with the Capital Markets Law.
City of Buenos Aires, July 29, 2021.
Pedro Mazer
Authorized Representative