- Amended tender offer statement by Third Party (SC TO-T/A)
September 29 2010 - 5:27PM
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
(Amendment No. 1)
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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þ
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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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$235,905.46
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Filing Party:
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Blue Acquisition Holding Corporation
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Form or Registration No.:
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Schedule TO
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Date Filed:
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September 16, 2010
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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 Amendment No. 1 amends and supplements the Tender
Offer Statement on Schedule TO (as amended,
Schedule TO) relating 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 11.
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Additional
Information.
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Item 11 of the Schedule TO, and the Offer to Purchase,
to the extent incorporated by reference therein, are hereby
amended and supplemented as set forth below.
(1) The first paragraph in the subsection titled
Antitrust Compliance in Section 16
Certain Legal Matters; Regulatory Approvals of the
Offer to Purchase is amended and supplemented to include the
following new sentence at the end of such paragraph:
Early termination of the waiting period for the Offer and the
Merger was granted effective September 24, 2010.
1
Item 12 of the Schedule TO is hereby amended and
supplemented by adding the following exhibit:
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(a)(1)(J)
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Joint Press Release issued by Blue Acquisition Holding
Corporation, Blue Acquisition Sub, Inc. and Burger King
Holdings, Inc. on September 29, 2010.
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2
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 29, 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
3
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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(a)(1)(J)
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Joint Press Release issued by Blue Acquisition Holding
Corporation, Blue Acquisition Sub, Inc. and Burger King
Holdings, Inc. on September 29, 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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* Previously filed.
4
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