- Tender offer statement by Third Party (SC TO-T)
September 16 2010 - 5:24PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(Rule 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1)
OR SECTION 13(e)(1)OF THE SECURITIES EXCHANGE ACT OF
1934
BURGER KING HOLDINGS, INC.
(Name of Subject Company
(Issuer))
BLUE ACQUISITION HOLDING CORPORATION
BLUE ACQUISITION SUB, INC.
(Name of Filing Persons
(Offeror))
3G SPECIAL SITUATIONS FUND II, L.P.
(Name of Filing
Persons (Other Person(s))
Common Stock, Par Value $0.01 Per Share
(Title of Class of
Securities)
121208201
(CUSIP Number of Class of
Securities)
Eric Hirschhorn, Esq.
Blue Acquisition Holding Corporation
c/o 3G
Capital, Inc.
600 Third Avenue 37th Floor
New York, New York 10016
(212) 893-6727
(Name, Address and Telephone
Number of Person Authorized to Receive Notices and
Communications on Behalf of Filing Persons)
With a copy to:
Stephen Fraidin, Esq.
William B. Sorabella, Esq.
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
(212) 446-4800
CALCULATION
OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$3,308,631,968.45
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$
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235,905.46
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*
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Calculated solely for purposes of determining the filing fee.
The calculation assumes the purchase of 136,465,856 shares
of common stock, par value $0.01 per share, at $24.00 per share.
The transaction value also includes the aggregate offer price
for 3,234,722 shares issuable pursuant to outstanding
options with an exercise price less than $24.00 per share, which
is calculated by multiplying the number of shares underlying
such outstanding options at each exercise price therefor by an
amount equal to $24.00 minus such exercise price.
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**
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Calculated in accordance with Exchange Act
Rule 0-11
by multiplying the transaction value by 0.0000713.
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o
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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:
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N/A
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Filing Party:
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N/A
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Form or Registration No.:
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N/A
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Date Filed:
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N/A
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o
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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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þ
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third-party tender offer subject to
Rule 14d-1.
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o
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issuer tender offer subject to
Rule 13e-4.
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o
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going-private transaction subject to
Rule 13e-3.
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o
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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:
o
If applicable, check the appropriate box(es) below to designate
the appropriate rule provision(s) relied upon:
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o
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Rule 13e-4(i)
(Cross-Border Issuer Tender Offer).
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o
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Rule 14d-1(d)
(Cross-Border Third-Party Tender Offer).
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This Tender Offer Statement on Schedule TO (this
Schedule TO) relates to the tender offer by
Blue Acquisition Sub, Inc., a Delaware corporation
(Purchaser) and a direct wholly-owned subsidiary of
Blue Acquisition Holding Corporation, a Delaware corporation
(Parent), for all of the outstanding common stock,
par value $0.01 per share (Shares), of Burger King
Holdings, Inc., a Delaware corporation (Burger
King), at a price of $24.00 per share net to the seller in
cash without interest and less any required withholding taxes,
if any, upon the terms and conditions set forth in the offer to
purchase dated September 16, 2010 (the Offer to
Purchase), a copy of which is attached as Exhibit
(a)(1)(A), and in the related letter of transmittal (the
Letter of Transmittal), a copy of which is attached
as Exhibit (a)(1)(B), which, together with any amendments or
supplements, collectively constitute the Offer.
All the information set forth in the Offer to Purchase is
incorporated by reference herein in response to Items 1
through 9 and Item 11 of this Schedule TO, and is
supplemented by the information specifically provided in this
Schedule TO.
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Item 1.
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Summary
Term Sheet.
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Regulation M-A
Item 1001
The information set forth in the Offer to Purchase under the
caption SUMMARY TERM SHEET is incorporated herein by reference.
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Item 2.
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Subject
Company Information.
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Regulation M-A
Item 1002
(a)
Name and Address.
The name, address,
and telephone number of the subject companys principal
executive offices are as follows:
Burger King Holdings, Inc.
5505 Blue Lagoon Drive
Miami, Florida 33126
(305) 378-3000
(b)
Securities.
This Schedule TO
relates to the Offer by Purchaser to purchase all issued and
outstanding Shares. As of September 13, 2010, based on
information provided by Burger King, there were
136,465,856 Shares issued and outstanding,
3,234,722 Shares were issuable pursuant to outstanding
stock options grants with an exercise price of less than $24.00
per Share. The information set forth on the cover page and in
the INTRODUCTION of the Offer to Purchase is incorporated herein
by reference.
(c)
Trading Market and Price.
The
information set forth under the caption THE TENDER
OFFER Section 6 (Price Range of Shares;
Dividends) of the Offer to Purchase is incorporated herein
by reference.
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Item 3.
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Identity
and Background of Filing Person.
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Regulation M-A
Item 1003
(a)-(c)
Name and Address; Business and Background of
Entities; and Business and Background of Natural
Persons.
The information set forth in the Offer
to Purchase under the following captions is incorporated herein
by reference:
SUMMARY TERM SHEET
THE TENDER OFFER Section 8 (Certain
Information Concerning Parent and Purchaser) and
Schedule I attached thereto.
1
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Item 4.
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Terms
of the Transaction.
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Regulation M-A
Item 1004
(a)
Material Terms.
The information set
forth in the Offer to Purchase is incorporated herein by
reference.
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Item 5.
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Past
Contacts, Transactions, Negotiations and
Agreements.
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Regulation M-A
Item 1005
(a)
Transactions.
The information set
forth in the Offer to Purchase under the following captions is
incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER Section 10 (Background
of the Offer; Past Contacts or Negotiations with
Burger King)
(b)
Significant Corporate Events.
The
information set forth in the Offer to Purchase under the
following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER Section 10 (Background
of the Offer; Past Contacts or Negotiations with
Burger King)
THE TENDER OFFER Section 11 (The Merger
Agreement; Other Agreements)
THE TENDER OFFER Section 12 (Purpose of
the Offer; Plans for Burger King)
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Item 6.
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Purposes
of the Transaction and Plans or Proposals.
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Regulation M-A
Item 1006
(a)
Purposes.
The information set forth
in the Offer to Purchase under the following captions is
incorporated herein by reference:
THE TENDER OFFER Section 12 (Purpose of
the Offer; Plans for Burger King)
(c) (1)-(7)
Plans.
The information set
forth in the Offer to Purchase under the following captions is
incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER Section 9 (Source and
Amount of Funds)
THE TENDER OFFER Section 10 (Background
of the Offer; Past Contacts or Negotiations with
Burger King)
THE TENDER OFFER Section 11 (The Merger
Agreement; Other Agreements)
THE TENDER OFFER Section 12 (Purpose of
the Offer; Plans for Burger King)
THE TENDER OFFER Section 13 (Certain
Effects of the Offer)
THE TENDER OFFER Section 14 (Dividends
and Distributions)
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Item 7.
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Source
and Amount of Funds or Other Consideration.
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Regulation M-A
Item 1007
(a)
Source of Funds.
The information set
forth in the Offer to Purchase under the following captions is
incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER Section 9 (Source and
Amount of Funds)
THE TENDER OFFER Section 10 (Background
of the Offer; Past Contacts or Negotiations with
Burger King)
2
(b)
Conditions.
The information set forth
in the Offer to Purchase under the following captions is
incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER Section 9 (Source and
Amount of Funds)
THE TENDER OFFER Section 10 (Background
of the Offer; Past Contacts or Negotiations with
Burger King)
THE TENDER OFFER Section 11 (The Merger
Agreement; Other Agreements)
THE TENDER OFFER Section 12 (Purpose of
the Offer; Plans for Burger King)
THE TENDER OFFER Section 15 (Conditions
to the Offer)
(d)
Borrowed Funds.
The information set
forth in the Offer to Purchase under the following captions is
incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER Section 9 (Source and
Amount of Funds)
THE TENDER OFFER Section 10 (Background
of the Offer; Past Contacts or Negotiations with
Burger King)
THE TENDER OFFER Section 11 (The Merger
Agreement; Other Agreements)
THE TENDER OFFER Section 15 (Conditions
to the Offer)
The Merger Agreement is incorporated herein by reference to
Exhibit 2.1 filed with the
Form 8-K,
dated September 3, 2010, by Burger King Holdings, Inc.
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Item 8.
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Interest
in Securities of the Subject Company.
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Regulation M-A
Item 1008
(a)
Securities Ownership.
The information
set forth in the Offer to Purchase under the following captions
is incorporated herein by reference:
THE TENDER OFFER Section 8 (Certain
Information Concerning Parent and Purchaser) and
Schedule I attached thereto.
THE TENDER OFFER Section 12 (Purpose of
the Offer; Plans for Burger King)
(b)
Securities Transactions.
None.
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Item 9.
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Persons/Assets,
Retained, Employed, Compensated or Used.
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Regulation M-A
Item 1009
(a)
Solicitations or Recommendations.
The
information set forth in the Offer to Purchase under the
following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER Section 3 (Procedures
for Accepting the Offer and Tendering Shares)
THE TENDER OFFER Section 10 (Background
of the Offer; Past Contacts or Negotiations with
Burger King)
THE TENDER OFFER Section 17 (Fees and
Expenses)
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Item 10.
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Financial
Statements.
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Regulation M-A
Item 1010
(a)
Financial Information.
Not Applicable.
(b)
Pro Forma Information.
Not Applicable.
3
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Item 11.
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Additional
Information.
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Regulation M-A
Item 1011
(a)
Agreements, Regulatory Requirements and Legal
Proceedings.
The information set forth in the
Offer to Purchase under the following captions is incorporated
herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER Section 10 (Background
of the Offer; Past Contacts or Negotiations with
Burger King)
THE TENDER OFFER Section 11 (The Merger
Agreement; Other Agreements)
THE TENDER OFFER Section 12 (Purpose of
the Offer; Plans for Burger King)
THE TENDER OFFER Section 13 (Certain
Effects of the Offer)
THE TENDER OFFER Section 16 (Certain
Legal Matters; Regulatory Approvals)
(b)
Other Material Information.
The
information set forth in the Offer to Purchase and the Letter of
Transmittal is incorporated herein by reference.
4
Regulation M-A
Item 1016
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Exhibit No.
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Description
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(a)(1)(A)
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Offer to Purchase, dated September 16, 2010.
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(a)(1)(B)
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Letter of Transmittal.
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(a)(1)(C)
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Notice of Guaranteed Delivery.
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(a)(1)(D)
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Letter from the Information Agent to Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees.
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(a)(1)(E)
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Letter to Clients for Use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.
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(a)(1)(F)
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Joint Press Release issued by Blue Acquisition Holding
Corporation, Blue Acquisition Sub, Inc. and Burger King
Holdings, Inc. on September 2, 2010 (incorporated by
reference to Exhibit 99.1 to the
Form 8-K
filed by Burger King Holdings, Inc. with the Securities and
Exchange Commission on September 2, 2010).
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(a)(1)(G)
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Press Release issued by 3G Capital on September 9, 2010
(incorporated by reference to Exhibit 99.1 to the
Schedule TO filed by Blue Acquisition Holding Corporation
and Blue Acquisition Sub, Inc. with the Securities and Exchange
Commission on September 9, 2010).
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(a)(1)(H)
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Summary Advertisement as published in the New York Times on
September 16, 2010.
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(a)(1)(I)
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Joint Press Release issued by Blue Acquisition Holding
Corporation, Blue Acquisition Sub, Inc. and Burger King
Holdings, Inc. on September 16, 2010.
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(b)
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None.
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(d)(1)
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Agreement and Plan of Merger, dated as of September 2,
2010, by and among Blue Acquisition Holding Corporation, Blue
Acquisition Sub, Inc. and Burger King Holdings, Inc.
(incorporated by reference to Exhibit 2.1 to the
Form 8-K
filed by Burger King Holdings, Inc. with the Securities and
Exchange Commission on September 3, 2010).
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(d)(2)
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Non-Disclosure and Standstill Agreement, dated as of
April 26, 2010, between 3G Capital Partners Ltd. and Burger
King Holdings, Inc. (incorporated by reference to
Exhibit (e)(4) of the Solicitation/Recommendation Statement
on
Schedule 14D-9
filed by Burger King Holdings, Inc. with the Securities and
Exchange Commission on September 16, 2010).
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(d)(3)
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Limited Guaranty, dated as of September 2, 2010, delivered
by 3G Special Situations Fund II, L.P. in favor of Burger
King Holdings, Inc.
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(d)(4)
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Equity Commitment Letter, dated as of September 2, 2010,
from 3G Special Situations Fund II, L.P. to Blue
Acquisition Holding Corporation.
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(d)(5)
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Debt Commitment Letter, dated as of September 2, 2010, from
JPMorgan Chase Bank, N.A., JPMorgan Securities LLC and Barclays
Bank PLC to Blue Acquisition Sub, Inc.
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(d)(6)
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Stockholder Tender Agreement, dated as of September 2,
2010, by and between Burger King Holdings, Inc. and certain
private equity funds controlled by Bain Capital Partners
(incorporated by reference to Exhibit 99.1 to the
Form 8-K
filed by Burger King Holdings, Inc. with the Securities and
Exchange Commission on September 3, 2010).
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(d)(7)
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Stockholder Tender Agreement, dated as of September 2,
2010, by and between Burger King Holdings, Inc. and certain
private equity funds controlled by the Goldman Sachs Funds
(incorporated by reference to Exhibit 99.2 to the
Form 8-K
filed by Burger King Holdings, Inc. with the Securities and
Exchange Commission on September 3, 2010).
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(d)(8)
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Stockholder Tender Agreement, dated as of September 2,
2010, by and between Burger King Holdings, Inc. and certain
private equity funds controlled by TPG Capital (incorporated by
reference to Exhibit 99.3 to the
Form 8-K
filed by Burger King Holdings, Inc. with the Securities and
Exchange Commission on September 3, 2010).
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(g)
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None.
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(h)
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None.
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Item 13.
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Information
Required by
Schedule 13E-3.
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Not applicable.
5
SIGNATURES
After due inquiry and to the best of their knowledge and belief,
each of the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Dated: September 16, 2010
BLUE ACQUISITION SUB, INC.
Name: Daniel Schwartz
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Title:
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Vice President and Secretary
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BLUE ACQUISITION HOLDING CORPORATION
Name: Daniel Schwartz
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Title:
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Vice President and Secretary
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3G SPECIAL SITUATIONS FUND II, L.P.
Name: Daniel Schwartz
6
EXHIBIT INDEX
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Exhibit No.
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Description
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(a)(1)(A)
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Offer to Purchase, dated September 16, 2010.
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(a)(1)(B)
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Letter of Transmittal.
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(a)(1)(C)
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Notice of Guaranteed Delivery.
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(a)(1)(D)
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Letter from the Information Agent to Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees.
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(a)(1)(E)
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Letter to Clients for Use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.
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(a)(1)(F)
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Joint Press Release issued by Blue Acquisition Holding
Corporation, Blue Acquisition Sub, Inc. and Burger King
Holdings, Inc. on September 2, 2010 (incorporated by
reference to Exhibit 99.1 to the
Form 8-K
filed by Burger King Holdings, Inc. with the Securities and
Exchange Commission on September 2, 2010).
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(a)(1)(G)
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Press Release issued by 3G Capital on September 9, 2010
(incorporated by reference to Exhibit 99.1 to the
Schedule TO filed by Blue Acquisition Holding Corporation
and Blue Acquisition Sub, Inc. with the Securities and Exchange
Commission on September 9, 2010).
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(a)(1)(H)
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Summary Advertisement as published in the New York Times on
September 16, 2010.
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(a)(1)(I)
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Joint Press Release issued by Blue Acquisition Holding
Corporation, Blue Acquisition Sub, Inc. and Burger King
Holdings, Inc. on September 16, 2010.
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(b)
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None.
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(d)(1)
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Agreement and Plan of Merger, dated as of September 2,
2010, by and among Blue Acquisition Holding Corporation, Blue
Acquisition Sub, Inc. and Burger King Holdings, Inc.
(incorporated by reference to Exhibit 2.1 to the
Form 8-K
filed by Burger King Holdings, Inc. with the Securities and
Exchange Commission on September 3, 2010).
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(d)(2)
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Non-Disclosure and Standstill Agreement, dated as of
April 26, 2010, between 3G Capital Partners Ltd. and Burger
King Holdings, Inc. (incorporated by reference to
Exhibit (e)(4) of the Solicitation/Recommendation Statement
on
Schedule 14D-9
filed by Burger King Holdings, Inc. with the Securities and
Exchange Commission on September 16, 2010).
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(d)(3)
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Limited Guaranty, dated as of September 2, 2010, delivered
by 3G Special Situations Fund II, L.P. in favor of Burger
King Holdings, Inc.
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(d)(4)
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Equity Commitment Letter, dated as of September 2, 2010,
from 3G Special Situations Fund II, L.P. to Blue
Acquisition Holding Corporation.
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(d)(5)
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Debt Commitment Letter, dated as of September 2, 2010, from
JPMorgan Chase Bank, N.A., JPMorgan Securities LLC and Barclays
Bank PLC to Blue Acquisition Sub, Inc.
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(d)(6)
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Stockholder Tender Agreement, dated as of September 2,
2010, by and between Burger King Holdings, Inc. and certain
private equity funds controlled by Bain Capital Partners
(incorporated by reference to Exhibit 99.1 to the
Form 8-K
filed by Burger King Holdings, Inc. with the Securities and
Exchange Commission on September 3, 2010).
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(d)(7)
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Stockholder Tender Agreement, dated as of September 2,
2010, by and between Burger King Holdings, Inc. and certain
private equity funds controlled by the Goldman Sachs Funds
(incorporated by reference to Exhibit 99.2 to the
Form 8-K
filed by Burger King Holdings, Inc. with the Securities and
Exchange Commission on September 3, 2010).
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(d)(8)
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Stockholder Tender Agreement, dated as of September 2,
2010, by and between Burger King Holdings, Inc. and certain
private equity funds controlled by TPG Capital (incorporated by
reference to Exhibit 99.3 to the
Form 8-K
filed by Burger King Holdings, Inc. with the Securities and
Exchange Commission on September 3, 2010).
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(g)
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None.
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(h)
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None.
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7
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