- Amended Statement of Ownership: Private Transaction (SC 13E3/A)
January 26 2010 - 2:39PM
Edgar (US Regulatory)
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
____________________
Schedule
13E-3
(Amendment
No. 2)
RULE
13e-3 TRANSACTION STATEMENT UNDER SECTION 13(e)
OF
THE SECURITIES EXCHANGE ACT OF 1934
Telefónica
de Argentina S.A.
(NAME OF
ISSUER)
Telefónica,
S.A.
Telefónica
de Argentina S.A.
(Name of
Person(s) Filing Statement)
Class
B Ordinary Shares, nominal value Ps.0.10 per share
American
Depositary Shares, each representing 40 Class B Ordinary Shares
(Title of
Class of Securities)
879378404/879378206
(CUSIP
Number of Class of Securities)
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Lucila
Rodríguez Jorge
Distrito
C, Ronda de la Comunicación, s/n
Las
Tablas, 28050
Madrid,
Spain
Tel.
+34 91 482 3734
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Santiago
Barca
Avenida
Ingeniero Huergo 723
(C1107AOH)
Buenos Aires
Argentina
Tel.
+54 11 4332 2066
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(Name,
Address and Telephone Number of Person Authorized to Receive
Notices
and
Communications on Behalf of Person(s) Filing Statement)
with
copies to:
Andres V.
Gil
Diane G.
Kerr
Davis
Polk & Wardwell
450
Lexington Avenue
New York,
New York 10017
+1 (212)
450-4000
Telecopy:
+1 (212) 450-3800
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS
APPROVED OR DISAPPROVED OF THIS TRANSACTION, PASSED UPON THE MERITS OR THE
FAIRNESS OF THE TRANSACTION OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE
INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This
statement is filed in connection with (check the appropriate box):
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a.
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o
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The
filing of solicitation materials or an information statement subject to
Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities
Exchange Act of 1934.
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b.
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o
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The
filing of a registration statement under the Securities Act of
1933.
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c.
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o
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A
tender offer.
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d.
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x
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None
of the above.
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Check the
following box if the soliciting materials or information statement referred to
in checking box (a) are preliminary copies:
o
Check the
following box if this is a final amendment reporting the results of the
transaction.
x
CALCULATION
OF FILING FEE
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*
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Assumes
the purchase of 126,001,784 Class B ordinary shares (including Class B
ordinary shares represented by ADSs), par value Argentine Ps.0.10 per
share, of Telefónica de Argentina S.A. at Argentine Ps.1.00 per share
converted to U.S. dollars at the rate of Argentine Ps.3.8107 per U.S.
dollar as published by the Argentine Central Bank for December 3, 2009,
the day prior to the filing of amendment no. 1 to the Schedule 13E-3
initially filed on October 16,
2009.
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**
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Calculated
by taking the aggregate U.S. dollar transaction value, calculated as
described above, and applying the fee rate of $55.80 per million U.S.
dollars, which was the fee rate in effect as of December 4, 2009, the date
of filing of amendment no. 1 to the Schedule 13E-3 initially filed on
October 16, 2009.
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x
Check the
box if any part of the fee is offset as provided by Exchange Act 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: $1,845.00
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Filing
Party:
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Telefónica,
S.A.
Telefónica
de Argentina S.A.
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Form
or Registration No.: Schedule 13E-3 (005-52425)
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Date
Filed:
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October
16, 2009 as amended December 4,
2009
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THE
FINAL TRANSFER
This
amended Transaction Statement on Schedule 13E-3 is being filed by Telefónica,
S.A., a
sociedad
anónima
organized and existing under the laws of the Kingdom of Spain
(“Telefónica”) and Telefónica de Argentina S.A., a
sociedad anónima
organized
and existing under the laws of the Republic of Argentina (“TASA” and, together
with Telefónica, the “Filing Persons”), pursuant to Section 13(e) of the
Securities Exchange Act of 1934 (the “Exchange Act”), and Rule 13e-3
thereunder. We are filing this amended Schedule 13E-3 to announce
that on January 25, 2010, Telefónica and TASA have completed the administrative
steps required to be taken under Argentine law in order for Telefónica to
complete its acquisition of TASA’s minority owned class B ordinary shares (the
“Class B Shares”) (including Class B Shares represented by American Depositary
Shares (“ADSs”)). As a result, your Class B Shares and all of the
Class B Shares represented by your ADSs, including any of those as to which you
may have exercised the appraisal rights described in amendment no. 1 to the
Schedule 13E-3 filed by the Filing Persons on December 4, 2009 (the “Schedule
13E-3), have been cancelled and new TASA shares have been issued to Telefónica
in their place by operation of Argentine law, resulting in Telefónica
beneficially owning 100% of TASA. We refer to this cancellation of
Class B Shares and issuance of new TASA shares to Telefónica as the “Final
Transfer”.
Unless
you have already received payment for your securities, effective upon the Final
Transfer all of the rights represented by the Class B Shares, including those
represented by ADSs, now represent, by operation of Argentine law, the right to
receive the cash purchase price approved by the
Comisión Nacional de Valores
(the “CNV”) (the Argentine securities regulator) or the right to exercise
appraisal rights, all as described in the Schedule 13E-3.
APPRAISAL
RIGHTS
Unless
you have already received payment for your securities, you have the right under
the Decree to dispute the Ps.1.00 per Class B Share purchase price approved by
the CNV by initiating an arbitration or judicial proceeding in Argentina
provided that you do so no later than March 15, 2010, comply with certain other
procedures described in the Schedule 13E-3, do not withdraw or cause to be
withdrawn the purchase price corresponding to your securities from the relevant
escrow account, and, if you hold ADSs, cause Citibank, N.A. as depositary for
TASA’s ADS program (the “Depositary”) to withdraw money from the U.S. Escrow
Account on your behalf. In any appraisal proceeding, an Argentine
judge or arbitrator will determine whether the price approved by the CNVis
“fair” as contemplated by the provisions of Argentine Presidential Executive
Decree No. 677/01, Chapter VII (the “Decree”) and notify the participants in the
proceeding of the decision. This decision will not affect the
purchase price paid to any non-objecting holders of Class B Shares or
ADSs. Additionally, successful appraisal proceedings will not prevent
or otherwise affect the automatic cancellation of your Class B Shares (including
those represented by ADSs) and the issuance of new TASA shares to Telefónica by
operation of law upon the Final Transfer. For more information on
your appraisal rights and how you may exercise these rights, see “Terms of the
Transaction— Appraisal Rights” in the Schedule 13E-3.
PAYMENT
OF PURCHASE PRICE TO NON-OBJECTING HOLDERS
For
instructions on how to obtain payment for your directly held Class B Shares, see
“Terms of the Transaction—Payment of Purchase Price to Non-Objecting
Holders—Payment to Holders of Class B Shares” in the Schedule
13E-3.
For
instructions on how to obtain payment for your ADSs, see “Terms of the
Transaction—Payment of Purchase Price to Non-Objecting Holders—Payment to
Holders of ADSs” in the Schedule 13E-3.
INDICATIVE
TIMETABLE
The
indicative timetable set forth below provides an overview of relevant
deadlines. Capitalized terms set forth in the table below have the
meanings ascribed to them in the Schedule 13E-3.
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January
25, 2010
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Notarization
of the Public Deed and Final Transfer
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Your
Class B Shares (including Class B Shares represented by ADSs) have been
automatically cancelled and are now represented only by the right to
receive the cash purchase price or the right to dispute the purchase
price. The Class B Shares and ADSs will be delisted as of this
day and will no longer be negotiable or transferable.
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March
10, 2010 (5:00 p.m. New York City time)
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ADS
Objection Deadline
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If
you hold ADSs, this is the deadline by which the Depositary must be
notified of your intention to dispute the purchase price in accordance
with the procedures set forth herein so that the Depositary can deliver to
you prior to the end of the Objection Period certain documentation that
you will need to validly dispute the purchase price in Argentina.
If your notification of
intention to dispute the purchase price is not received by the Depositary
by this deadline you will not be eligible to exercise your Appraisal
Rights. To ensure timely delivery, you are urged to contact your bank,
broker or other intermediary at least five business days prior to this
deadline.
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March
15, 2010
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End
of Objection Period
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Holders
of Class B Shares and ADSs wishing to exercise their Appraisal Rights and
dispute the purchase price must file an action with the competent
Argentine arbitral tribunal or court in Buenos Aires on or prior to this
date.
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On
or after March 16, 2010 (subject to special payment procedures for holders
of ADSs in registered form evidenced by ADRs)
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Automatic
payment to remaining non-objecting former direct holders of Class B Shares
and holders of ADSs in book-entry form; eligibility of holders of ADS in
registered form evidenced by ADRs to receive automatic
payment
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Caja
de Valores sends payment to all direct holders of Class B Shares who are
not disputing the purchase price and who have not previously withdrawn
funds from the Argentine Escrow Account. In addition, the Escrow Agent
sends payment to the Depositary for all ADS holders who are not disputing
the purchase price and who have not previously directed the Depositary to
withdraw funds from the U.S. Escrow Account. Remaining ADS holders who
hold their ADSs in book-entry form automatically receive payment from the
Depositary and holders of ADSs in registered form evidenced by ADRs
receive payment from the Depositary upon surrender of their ADRs
evidencing the ADSs in compliance with procedures set forth in this
Schedule 13E-3.
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Upon
completion of appraisal proceeding
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Payment
to objecting holders
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Direct
holders of Class B Shares who validly disputed the purchase price receive
payment of the original purchase price from the Argentine Escrow Account
and holders of ADSs who validly objected to the purchase price receive
payment of the original purchase price from the U.S. Escrow Account. If
the Objecting Shareholders are successful in establishing a higher
purchase price, the Objecting Shareholders will receive any Top Up Amount
as agreed between Telefónica and the Objecting Shareholders or, failing
such agreement, in the manner and currency ordered by the Argentine
tribunal or court.
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SIGNATURES
After due
inquiry and to the best of its knowledge and belief, each of the undersigned
certifies that the information set forth in this Schedule is true, complete and
correct.
Dated:
January 26, 2009
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TELEFÓNICA,
S.A.
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By:
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/s/
M
a
Luz Medrano Aranguren
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Name:
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M
a
Luz Medrano Aranguren
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Title:
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Vice
Secretary of the Board of Directors
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TELEFÓNICA
DE ARGENTINA S.A.
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By:
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/s/
Pablo Luis Llauró
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Name:
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Pablo
Luis Llauró
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Title:
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Attorney-in-fact
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