UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(Amendment No. 2)
(Rule 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
CENTRAL
EUROPEAN DISTRIBUTION CORP.
(Name of Subject Company (Issuer) and Filing Person (Offeror))
3% Convertible Senior Notes due 2013
(Title of Class of Securities)
153435AA0
(CUSIP Number of Class of Securities)
Brian Morrissey
Secretary
Central European Distribution Corp.
3000 Atrium Way, Suite 265
Mt. Laurel, New Jersey 08054
(856) 273-6980
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
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Scott Simpson
Skadden, Arps, Slate, Meagher & Flom (UK) LLP
40 Bank
Street
London E14 5DS
United Kingdom
Phone: +44 207 519 7040
Fax: +44 207 072 7040
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James A. McDonald
Skadden, Arps, Slate, Meagher & Flom (UK) LLP
40 Bank
Street
London E14 5DS
United Kingdom
Phone: +44 207 519 7183
Fax: +44 207 072 7183
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CALCULATION OF FILING FEE
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Transaction Valuation(1)
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Amount Of Filing Fee(2)
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$67,043,080
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$9,144.68
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(1)
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Estimated solely for purpose of calculating the Filing Fee pursuant to Rule 0-11 under the Securities Exchange Act of 1934. Calculated by multiplying (i) $26.00, the
average of the bid and asked price per $100 principal amount of the 3% Convertible Senior Notes due 2013 in secondary market transactions on February 22, 2013, and (ii) the quotient of (x) $257,858,000, the aggregate principal amount at maturity of
the 3% Convertible Senior Notes due 2013 which are sought for exchange, and (y) $100.
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(2)
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The amount of the filing fee was calculated by multiplying the transaction value by .00013640.
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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: $9,144.68
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Filing Party: Central European Distribution Corporation
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Form or Registration No.: SC TO-I
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Date Filed: 2/25/2013
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¨
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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 below to designate any transactions to which the statement relates:
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¨
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Third-party tender offer subject to Rule 14d-1.
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x
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Issuer tender offer subject to Rule 13e-4.
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¨
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Going-private transaction subject to Rule 13e-3.
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¨
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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.
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If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
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¨
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
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¨
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Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
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EXPLANATORY NOTE
This Amendment No. 2 amends and restates the Tender Offer Statement on Schedule TO originally filed by Central European Distribution
Corporation, a Delaware corporation (
CEDC
) with the Securities and Exchange Commission (the Commission) on February 25, 2013, and amended by Amendment No. 1 filed on March 4, 2013 (as amended, the
Schedule
TO
). The Schedule TO relates to the exchange offer by CEDC (the
CEDC Exchange Offer
) to exchange 8.86 shares of new common stock of CEDC (
New Common Stock
) for each $1,000 principal amount of 3%
Convertible Senior Notes due 2013 (
Existing 2013 Notes
) validly tendered, and not validly withdrawn, at or prior to 11:59 p.m., New York time on March 22, 2013 (the
Expiration Time
) by holders of Existing 2013
Notes in exchange. The CEDC Exchange Offer is being made upon the terms and subject to the conditions set forth in the original Offering Memorandum, Consent Solicitation Statement and Disclosure Statement Soliciting Acceptances of a Prepackaged Plan
of Reorganization, dated February 25, 2013, as amended and restated by the Amended and Restated Offering Memorandum, Consent Solicitation Statement and Disclosure Statement Soliciting Acceptances of a Prepackaged Plan of Reorganization, dated March
8, 2013 (as amended and restated, the
Amended and Restated
Offering Memorandum and Disclosure Statement
) and in the related Letter of Transmittal and Consent, copies of which are attached to this Schedule TO as Exhibits
(a)(1)(i) and (a)(1)(ii), respectively. The information contained in the Amended and Restated Offering Memorandum and Disclosure Statement is incorporated herein by reference in response to all of the items of the Schedule TO as more particularly
described below.
The purpose of this Amendment No. 2 is to amend and supplement the Schedule TO to reflect the amendment and
restatement of the CEDC Exchange Offer as reflected in the Amended and Restated Offering Memorandum and Disclosure Statement. The Amended and Restated Offering Memorandum and Disclosure Statement, among other things, amended the CEDC Exchange Offer
to modify the conditions to which the CEDC Exchange Offer is subject, specifically by (i) increasing the minimum condition to 100% of the aggregate principal amount of Existing 2013 Notes outstanding and (ii) amending the terms and conditions to the
CEDC FinCo Exchange Offer (as defined below), the consummation of which is a condition to the Exchange Offer. The Amended and Restated Offering Memorandum and Disclosure Statement amended the terms and conditions of the related transaction, in which
CEDCs subsidiary, CEDC Finance Corporation International, Inc. is offering to exchange (the
CEDC FinCo Exchange Offer
) its outstanding 9.125% Senior Secured Notes and 8.875% Senior Secured Notes due 2016 (together, the
Existing 2016 Notes
) for, at the election of the holders of the Existing 2016 Notes, (i) cash consideration and/or (ii) new Senior Secured Notes due 2018 and new Convertible Secured PIK Toggle Notes.
This Amendment No. 2 is also being filed to incorporate the press release dated March 8, 2013, the Employment Agreement, dated January
10, 2013, by and between CEDC and Grant Winterton (the
Grant Winterton Employment Agreement
) and the Securities Purchase Agreement, effective March 8, 2013, by and between CEDC, Roust Trading Ltd. and JSC Russian Alcohol
Group, which are attached to this Schedule TO as Exhibits (a)(1)(v), (d)(11) and (d)(12), respectively.
All information
in the Exchange Offer, including all schedules and annexes thereto, which were previously filed with the Schedule TO, is hereby expressly incorporated by reference into this Amendment No. 2, except that such information is hereby amended and
restated to the extent specifically provided for herein and to the extent amended, supplemented or superseded by the exhibits filed herewith.
Item 1. Summary Term Sheet.
The information set forth in the sections of the Amended and Restated Offering Memorandum and Disclosure Statement entitled Summary and Summary of the Exchange Offers and the Consent
Solicitation is incorporated herein by reference.
Item 4. Terms of the Transaction
(a) The information set forth in the sections of the Amended and Restated Offering Memorandum and Disclosure Statement entitled:
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Summary of the Exchange Offers and the Consent Solicitation;
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The Exchange Offers and the Consent Solicitation;
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Description of Common Stock;
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Certain United States Federal Income Tax Consequences;
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Information Agent and Voting Agent;
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Certain Federal and Other Securities Laws Matters; and
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Applicability of Certain Polish Securities Laws and Regulations.
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is incorporated herein by reference in response to this Item 4.
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
(e) The information set forth in the sections of the Amended and Restated Offering Memorandum and Disclosure Statement entitled
Managements Discussion and Analysis of Financial Condition and Results of OperationAgreements with Roust Trading Ltd., Certain Relationships and Related TransactionsTransactions with RTL, Security
Ownership of Certain Beneficial Owners and Management, Description of Other IndebtednessRTL Notes and Description of Other IndebtednessRTL Credit Facility, and Description of Other
IndebtednessRUR 465 million facility to Sibirsky is incorporated herein by reference.
The description of the
Grant Winterton Employment Agreement is set forth under the caption Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers in the
Companys Current Report on Form 8-K filed with the Commission on February 27, 2013 and is incorporated herein by reference.
Item 6. Purposes of the Transaction and Plans or Proposals.
(a) The information set forth in the sections of the Amended and Restated Offering Memorandum and Disclosure Statement entitled Summary, Summary of the Exchange Offers and the Consent
Solicitation, Capitalization Table and The Exchange Offers and the Consent Solicitation is incorporated herein by reference.
(c) The information set forth in the sections of the Amended and Restated Offering Memorandum and Disclosure Statement entitled Summary, Summary of the Exchange Offers and the Consent
Solicitation, Capitalization Table, Unaudited Pro Forma Condensed Combined Financial Statements, The Exchange Offers and the Consent Solicitation, Description of Common Stock, Description
of Other Indebtedness and The Plan of Reorganization is incorporated herein by reference.
Item 7. Source and
Amount of Funds or Other Consideration.
(a) The information set forth in the sections of the Amended and Restated Offering
Memorandum and Disclosure Statement entitled Summary, Summary of the Exchange Offers and the Consent Solicitation, Certain Relationships and Related TransactionsTransactions with RTL; The Exchange
Offers and the Consent Solicitation and Description of Common Stock is incorporated herein by reference.
(b) The information set forth in the sections of the Amended and Restated Offering
Memorandum and Disclosure Statement entitled Summary, Summary of the Exchange Offers and the Consent Solicitation, Certain Relationships and Related Transactions and The Exchange Offers and the Consent
Solicitation is incorporated herein by reference.
Item 8. Interest in Securities of the Subject Company.
(a) The information set forth in the sections of the Amended and Restated Offering Memorandum and Disclosure Statement entitled
Certain Relationships and Related Transactions Security Ownership of Certain Beneficial Owners and Management and Management is incorporated herein by reference.
(b) The information set forth in the sections of the Amended and Restated Offering Memorandum and Disclosure Statement entitled
Managements Discussion and Analysis of the Financial Condition and Results of OperationAgreements with Roust Trading Ltd. and Security Ownership of Certain Beneficial Owners and Management is incorporated herein
by reference.
Item 10. Financial Statements.
(a) (3) The information set forth in the sections of the Amended and Restated Offering Memorandum and Disclosure Statement entitled Pro Forma Ratio of Earnings to Fixed Charges and Book Value per
Share is incorporated herein by reference.
(a) (4) The information set forth in the sections of the Amended and
Restated Offering Memorandum and Disclosure Statement entitled Pro Forma Ratio of Earnings to Fixed Charges and Book Value per Share is incorporated herein by reference.
(b) (1) The information set forth in the sections of the Amended and Restated Offering Memorandum and Disclosure Statement entitled
Unaudited Pro Forma Condensed Combined Financial Statements is incorporated herein by reference.
(b) (2) The
information set forth in the sections of the Amended and Restated Offering Memorandum and Disclosure Statement entitled Pro Forma Ratio of Earnings to Fixed Charges and Book Value per Share and Unaudited Pro Forma Condensed
Combined Financial Statements is incorporated herein by reference.
(b) (3) The information set forth in the sections of
the Amended and Restated Offering Memorandum and Disclosure Statement entitled Pro Forma Ratio of Earnings to Fixed Charges and Book Value per Share is incorporated herein by reference.
Item 11. Additional Information.
(a) (1) The information set forth in the sections of the Amended and Restated Offering Memorandum and Disclosure Statement entitled Summary; Summary of the Exchange Offers and the
Consent Solicitation; The Exchange Offers and the Consent Solicitation; Certain Relationships and Related Party Transactions and Description of Other Indebtedness is incorporated herein by reference.
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended by replacing exhibits (a)(1)(i) and (a)(1)(ii) with the following:
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(a)(1)(i)
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Amended and Restated Offering Memorandum, Consent Solicitation and Disclosure Statement Soliciting Acceptances of a Prepackaged Plan of Reorganization, dated March 8,
2013.
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(a)(1)(ii)
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Form of Letter of Transmittal and Consent (including Form W-9) (incorporated by reference to Appendix C to the Amended and Restated Offering Memorandum, Consent Solicitation and
Disclosure Statement Soliciting Acceptances of a Prepackaged Plan of Reorganization, dated March 8, 2012).
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Item 12 of the Schedule TO is hereby further amended and supplemented by adding the following exhibits:
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(a)(1)(v)
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Press Release, dated March 8, 2013
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(d)(11)
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Employment Agreement, dated January 10, 2013, by and between Central European Distribution Corporation and Grant Winterton (filed as Exhibit 10.1 to the Current Report on Form 8-K
on February 27, 2013 and incorporated by reference).
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(d)(12)
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Securities Purchase Agreement, effective March 8, 2013 by and between Central European Distribution Corporation, Roust Trading Ltd. and JSC Russian Alcohol
Group.
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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.
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CENTRAL EUROPEAN DISTRIBUTION CORP.
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By:
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/s/ Grant Winterton
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Name:
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Grant Winterton
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Title:
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Chief Executive Office
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Dated: March 8, 2013
Exhibits.
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Exhibit
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Exhibit Name
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(a)(1)(i)*
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Amended and Restated Offering Memorandum, Consent Solicitation and Disclosure Statement Soliciting Acceptances of a Prepackaged Plan of Reorganization, dated March 8,
2013.
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(a)(1)(ii)
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Form of Letter of Transmittal and Consent (including Form W-9) (incorporated by reference to Appendix C to the Amended and Restated Offering Memorandum, Consent Solicitation and
Disclosure Statement Soliciting Acceptances of a Prepackaged Plan of Reorganization, dated March 8, 2013).
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(a)(1)(iii)**
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Press Release, dated February 25, 2013
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(a)(1)(iv)***
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Press Release, dated March 4, 2013.
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(a)(1)(v)*
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Press Release, dated March 8, 2013.
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(a)(5)
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None.
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(b)
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None.
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(d)(1)
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Securities Purchase Agreement, dated April 23, 2012 by and among Central European Distribution Corporation and Roust Trading Ltd. (filed as Exhibit 10.1 to the Current Report on
Form 8-K on April 24, 2012 and incorporated by reference herein).
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(d)(2)
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(d)(2) Governance Agreement, dated April 23, 2012 by and among Central European Distribution Corporation and Roust Trading Ltd.(filed as Exhibit 10.2 to the Current Report on Form
8-K on April 24, 2012 and incorporated by reference herein).
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(d)(3)
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(d)(3) Registration Rights Agreement, dated April 23, 2012, by and among Central European Distribution Corporation and Roust Trading Ltd. (filed as Exhibit 10.3 to the Current
Report on Form 8-K on April 24, 2012 and incorporated by reference herein).
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(d)(4)
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(d)(4) Voting Agreement, dated April 23, 2012, by and among Central European Distribution Corporation and Roust Trading Ltd. (filed as Exhibit 10.4 to the Current Report on Form 8-K
on April 24, 2012 and incorporated by reference herein).
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(d)(5)
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(d)(5) Voting Agreement, dated April 23, 2012, by and among Central European Distribution Corporation and Russian Standard Corporation (filed as Exhibit 10.5 to the Current Report
on Form 8-K on April 24, 2012 and incorporated by reference herein).
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(d)(6)
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(d)(6) Voting Agreement, dated April 23, 2012, by and among Central European Distribution Corporation and Russian Standard-Invest LLC (Exhibit 10.6 to the Current Report on Form 8-K
on April 24, 2012 and incorporated by reference herein).
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(d)(7)
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(d)(7) Voting Agreement, dated April 23, 2012, by and among Central European Distribution Corporation, Mr. David Bailey and Roust Trading Ltd (filed as Exhibit 99.1 to the Current
Report on Form 8-K on April 24, 2012 and incorporated by reference herein).
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(d)(8)
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(d)(8) Voting Agreement, dated April 23, 2012, by and among Central European Distribution Corporation, Mr. N. Scott Fine and Roust Trading Ltd. (filed as Exhibit 99.2 to the Current
Report on Form 8-K on April 24, 2012 and incorporated by reference herein).
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(d)(9)
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(d)(9) Voting Agreement, dated April 23, 2012, by and among Central European Distribution Corporation, Mr. William Shanahan and Roust Trading Ltd. (filed as Exhibit 99.3 to the
Current Report on Form 8-K on April 24, 2012 and incorporated by reference herein).
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(d)(10)
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(d)(10) Voting Agreement, dated April 23, 2012, by and among Central European Distribution Corporation, Mr. Robert Koch and Roust Trading Ltd. (filed as Exhibit 99.4 to the Current
Report on Form 8-K on April 24, 2012 and incorporated by reference).
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(d)(11)
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Employment Agreement, dated January 10, 2013, by and between Central European Distribution Corporation and Grant Winterton (filed as Exhibit 10.1 to the Current Report on Form 8-K
on February 27, 2013 and incorporated by reference).
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(d)(12)*
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Securities Purchase Agreement, dated March 8, 2013 by and between Central European Distribution Corporation, Roust Trading Ltd. and JSC Russian Alcohol
Group.
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(g)
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None.
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(h)
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None.
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**
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Previously filed with the Schedule TO on February 25, 2013
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***
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Previously filed with Amendment No. 1 to the Schedule TO on March 4, 2013
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