SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 11)*
MILLICOM INTERNATIONAL CELLULAR S.A.
(Name of Issuer)
Common Shares
(Title of Class of Securities)
L6388F110
(CUSIP Number)
Denis Klimentchenko
Skadden, Arps, Slate, Meagher & Flom (UK)
LLP
22 Bishopsgate
London, EC2N 4BQ
Tel: +44(0)20 7519 7289
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
May 23, 2024
(Date of Event which Requires Filing of this Statement)
If
the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D,
and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: x
Note: Schedules filed in paper format shall include
a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
* |
The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No.: L6388F110
1 |
NAMES OF REPORTING PERSONS
Atlas Luxco S.à r.l. |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) x |
3 |
SEC USE ONLY |
4 |
SOURCE OF FUNDS
OO, BK |
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Luxembourg |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
49,966,734(1) |
9 |
SOLE DISPOSITIVE POWER
0 |
10 |
SHARED DISPOSITIVE POWER
49,966,734(1) |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
49,966,734(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE
INSTRUCTIONS)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
29.19% |
14 |
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO |
(1) Reflects 49,966,734 Swedish Depositary
Receipts (“SDRs”) beneficially owned by Atlas Luxco S.à r.l. (“Atlas”), which may
be exchanged for Issuer common shares, par value $1.50 per share (“Common Shares”), on a one-for-one basis. Atlas
Investissement, as the controlling shareholder of Atlas, may be deemed to have shared beneficial ownership over the Common Shares
beneficially owned by Atlas. NJJ Holding, as the controlling shareholder of Atlas Investissement, may be deemed to have shared
beneficial ownership over the Common Shares beneficially owned by Atlas and Atlas Investissement. Xavier Niel, as the sole owner of
NJJ Holding, may be deemed to have shared beneficial ownership over the Common Shares beneficially owned by Atlas, Atlas
Investissement and NJJ Holding.
CUSIP No.: L6388F110
1 |
NAMES OF REPORTING PERSONS
Atlas Investissement |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) x |
3 |
SEC USE ONLY |
4 |
SOURCE OF FUNDS
OO |
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
France |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
49,966,734(1) |
9 |
SOLE DISPOSITIVE POWER
0 |
10 |
SHARED DISPOSITIVE POWER
49,966,734(1) |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
49,966,734(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE
INSTRUCTIONS)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
29.19% |
14 |
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO |
(1) Reflects 49,966,734 SDRs beneficially
owned by Atlas, which may be exchanged for Common Shares on a one-for-one basis. Atlas Investissement, as the controlling shareholder of
Atlas, may be deemed to have shared beneficial ownership over the Common Shares beneficially owned by Atlas. NJJ Holding, as the
controlling shareholder of Atlas Investissement, may be deemed to have shared beneficial ownership over the Common Shares
beneficially owned by Atlas and Atlas Investissement. Xavier Niel, as the sole owner of NJJ Holding, may be deemed to have shared
beneficial ownership over the Common Shares beneficially owned by Atlas, Atlas Investissement and NJJ Holding.
CUSIP No.: L6388F110
1 |
NAMES OF REPORTING PERSONS
NJJ Holding |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) x |
3 |
SEC USE ONLY |
4 |
SOURCE OF FUNDS
OO |
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
France |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
49,966,734(1) |
9 |
SOLE DISPOSITIVE POWER
0 |
10 |
SHARED DISPOSITIVE POWER
49,966,734(1) |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
49,966,734(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE
INSTRUCTIONS)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
29.19% |
14 |
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO |
(1) Reflects 49,966,734 SDRs beneficially
owned by Atlas, which may be exchanged for Common Shares on a one-for-one basis. Atlas Investissement, as the controlling shareholder of
Atlas, may be deemed to have shared beneficial ownership over the Common Shares beneficially owned by Atlas. NJJ Holding, as the
controlling shareholder of Atlas Investissement, may be deemed to have shared beneficial ownership over the Common Shares
beneficially owned by Atlas and Atlas Investissement. Xavier Niel, as the sole owner of NJJ Holding, may be deemed to have shared
beneficial ownership over the Common Shares beneficially owned by Atlas, Atlas Investissement and NJJ Holding.
CUSIP No.: L6388F110
1 |
NAMES OF REPORTING PERSONS
Xavier Niel |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) x |
3 |
SEC USE ONLY |
4 |
SOURCE OF FUNDS
OO |
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
France |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
49,966,734(1) |
9 |
SOLE DISPOSITIVE POWER
0 |
10 |
SHARED DISPOSITIVE POWER
49,966,734(1) |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
49,966,734(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE
INSTRUCTIONS)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
29.19% |
14 |
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
IN |
(1) Reflects 49,966,734 SDRs beneficially owned
by Atlas, which may be exchanged for Common Shares on a one-for-one basis. Atlas Investissement, as the controlling shareholder of Atlas, may be deemed
to have shared beneficial ownership over the Common Shares beneficially owned by Atlas. NJJ Holding, as the controlling shareholder of
Atlas Investissement, may be deemed to have shared beneficial ownership over the Common Shares beneficially owned by Atlas and Atlas Investissement.
Xavier Niel, as the sole owner of NJJ Holding, may be deemed to have shared beneficial ownership over the Common Shares beneficially owned
by Atlas, Atlas Investissement and NJJ Holding.
Explanatory Note
This
Amendment No. 11 (“Amendment No. 11”) to Schedule 13D relates to the Common Shares, par value $1.50 per share (the
“Common Shares”), of Millicom International Cellular S.A., a Luxembourg company (the “Issuer”),
and amends and supplements the initial statement on Schedule 13D filed on February 24, 2023, as amended by Amendment No. 1 to the Schedule
13D filed on March 28, 2023, as amended by Amendment No. 2 to the Schedule 13D filed on April 26, 2023, as amended by Amendment No. 3
to the Schedule 13D filed on May 12, 2023, as amended by Amendment No. 4 to the Schedule 13D filed on May 25, 2023, as amended by Amendment
No. 5 to the Schedule 13D filed on June 2, 2023 (“Amendment No. 5”), as amended by Amendment No. 6 to the Schedule
13D filed on July 24, 2023 (“Amendment No. 6”), as amended by Amendment No. 7 to the Schedule 13D filed on August 24,
2023 (“Amendment No. 7”), as amended by Amendment No. 8 to the Schedule 13D filed on October 2, 2023 (“Amendment
No. 8”), as amended by Amendment No. 9 to the Schedule 13D filed on November 8, 2023, as amended by Amendment No. 10 to the
Schedule 13D filed on January 17, 2024 (“Amendment No. 10”, and as so amended, the “Schedule 13D”).
Capitalized terms used but not defined in this Amendment No. 11 shall have the same meanings ascribed to them in the Schedule 13D.
Item 4. Purpose of Transaction.
Item 4 of the Schedule 13D is hereby amended and supplemented as follows:
On May 23, 2024, Atlas Investissement announced that it is exploring
a potential all cash tender offer for the Issuer’s securities. In connection with such preliminary efforts, Atlas is exploring financing
options to support an offer price of $24.0 per Common Share, and its SEK equivalent per SDR. Atlas Investissement also furnished Millicom’s
Board of Directors with a letter of intent (the “Letter of Intent”) noting that the potential offer price would represent
a 19% premium to Millicom’s volume-weighted average price for the previous 3 months; a 27% premium over its volume-weighted average
price for the previous 6 months and a 38% premium to Millicom’s volume-weighted average price for the previous 12 months. The Letter
of Intent also notes that the potential offer price would be higher than the median of brokers’ time-adjusted target prices and
would provide immediate liquidity for Millicom’s shareholders. No assurances can be given that any such offer will be made by Atlas
Investissement, or if one is made, as to its terms or timing.
Additionally, Atlas Investissement
has amended from time to time the Loan Agreement initially entered into with a syndicate of lenders on February 20, 2023 (as amended
from time to time including for the last time on 13 March 2024, the “Loan Agreement”) pursuant to amendment agreements
(the "Loan Agreement Amendments").
The foregoing description of the amendments
to the Letter of Intent and Loan Agreement Amendments described above are qualified in their entirety by reference to such
documents, which are filed as an exhibits hereto and incorporated herein by reference.
Item 5. Interest in Securities of the Issuer.
Items 5(a)-(c) of the Schedule 13D are hereby amended and restated
as follows:
(a) and (b) The percentage
of beneficial ownership in this Schedule 13D is based on 171,188,466 Common Shares outstanding as of May 3, 2024 (based on 172,096,305
Common Shares outstanding, less 907,839 Common Shares held in treasury, as set forth in the last relevant update available on the date
hereof in the “Financial News” section of the Issuer's website).
The aggregate number and percentage
of Common Shares beneficially owned by each Reporting Person and, for each Reporting Person, the number of shares as to which there is
sole power to vote or to direct the vote, shared power to vote or to direct the vote, sole power to dispose or to direct the disposition,
or shared power to dispose or to direct the disposition are set forth on rows 7 through 11 and row 13 of the cover pages of this Schedule
13D and are incorporated herein by reference.
As of May 23, 2024, Atlas beneficially owned
49,966,734 SDRs, which may be exchanged for Common Shares on a one-for-one basis.
Neither the filing of this
Schedule 13D nor any of its contents shall be deemed to constitute an admission that any Reporting Person (other than Atlas to the extent
it directly holds the securities reported herein) is the beneficial owner of the Common Shares referred to herein for purposes of Section
13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose and each of the Reporting Persons expressly disclaims
beneficial ownership of such shares.
(c) The Reporting Persons
have not effected any transactions in Common Shares during the past sixty days.
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to Securities of the Issuer.
Item 6 of the Schedule 13D is
hereby amended and supplemented as follows:
The information set forth in
Item 4 of this Amendment No. 11 is incorporated herein by reference.
Item 7. Material to be filed as Exhibits.
Item 7 of the Schedule 13D is hereby amended by adding the following
exhibits:
5 Letter
of Intent, dated May 23, 2024
6 Loan Agreement Amendment, dated March 7, 2024
7 Loan Agreement Amendment, dated March 13, 2024
SIGNATURES
After reasonable inquiry and
to the best of each of the undersigned’s knowledge and belief, each of the undersigned, severally and not jointly, certifies that
the information set forth in this statement is true, complete and correct.
Dated: May 23, 2024
ATLAS LUXCO S.À R.L. |
|
|
|
By: |
/s/ Anthony Maarek |
|
Name: |
Anthony Maarek |
|
Title: |
Manager |
|
|
|
By: |
/s/ Tigran Khachatryan |
|
Name: |
Tigran Khachatryan |
|
Title: |
Manager |
|
|
|
ATLAS INVESTISSEMENT |
|
|
|
By: |
/s/ Xavier Niel |
|
Name: |
Xavier Niel |
|
Title: |
Président of NJJ Holding itself Président of Atlas Investissement |
|
|
|
NJJ HOLDING |
|
|
|
By: |
/s/ Xavier Niel |
|
Name: |
Xavier Niel |
|
Title: |
Président |
|
|
|
XAVIER NIEL |
|
|
|
By: |
/s/ Xavier Niel |
|
[Millicom International Cellular S.A. - Schedule
13D/A]
Exhibit 5
To the Board of Directors of Millicom International
Cellular S.A.
Attention:
Mauricio Ramos
Chairman of the Board of Directors
May 23rd, 2024
STRICTLY PRIVATE & CONFIDENTIAL INSIDE INFORMATION
Dear Mauricio, Dear Directors,
Atlas Investissement or an affiliate
thereof (“Atlas” or “we”) has been working on a potential all-cash acquisition of all the shares
that we do not currently own in Millicom International Cellular S.A. (“Millicom” or the “Company”).
As part of our preparatory work, we have held discussions with financing banks.
In that context, we wanted to clarify
our position vis-à-vis the Company, and we are pleased to submit this letter as a non-binding indication of interest in exploring
such all-cash offer.
We believe that an offer from Atlas
would offer (i) compelling value, (ii) high transaction certainty and (iii) a unique liquidity opportunity to Millicom investors, and
would therefore be in the best interest of the Company and all its investors.
We have begun exploratory discussions
with potential lenders to support a price of 24.0 USD per common share, and the SEK equivalent per SDR (the “Offer Price”).
We are confident that we can progress these conversations to a successful outcome in the coming weeks.
We believe the potential Offer Price
would be highly attractive to the shareholders of the Company, including by reference to the Company’s historical and target share
prices.
| · | Attractive relative
to historical trading prices: The potential Offer Price would represent a 19% premium to Millicom’s volume-weighted average
price for the previous 3 months; a 27% premium over its volume-weighted average price for the previous 6 months, and 38% premium to Millicom’s
volume-weighted average price for the previous 12 months. |
| | |
| · | Higher than median
of brokers’ target prices: Time-adjusted target prices from brokers are between $15.6 and $25.9, with a median at $23.9 (11
brokers published since Millicom’s Q1 results) |
Our contemplated offer would provide
all Millicom shareholders with a full cash exit option, in an environment where liquidity has been relatively weak for holders of SDRs
and Common Shares:
| · | Since our entry as
main shareholder, the liquidity has reduced significantly from c.0.5% of the shares outstanding (1-month average daily trading volume)
to c.0.2% today. This potential offer would represent a unique liquidity event for investors |
| | |
| · | Many investors have been
shareholders for many years without having had opportunities to monetize their investment at an attractive price |
We anticipate that the Company’s board of
directors would form an independent committee in connection with a potential offer and we look forward to presenting our proposal to the
committee in short order, including the reasons for our conviction that the proposed price would be attractive to all shareholders based
on the performance of the stock price during the relevant periods.
We would also like to share
with you the additional information that we will require from the Company in order to proceed with a potential offer, which remains subject
to a number of conditions at this stage.
For legal reasons, we need
to stress that this letter is not intended to be, nor in any way constitutes, an offer to purchase securities of the Company or any of
its affiliates, nor should it be construed as a binding offer or agreement in any respect. We reserve the right to amend the foregoing
in all respects and terminate any discussions with respect to a potential transaction at any time and for any (or no) reason, in our
sole discretion. Atlas, its affiliates, and their respective directors, officers, employees and advisors shall have no liability whatsoever
to Millicom or anyone else in relation to this letter.
Please also note that we
intend for this letter (including its existence and content) to remain confidential, subject to applicable laws and regulations.
We look forward to hearing
from you in the coming days and to have the opportunity to present our plan and proposal further in person.
Yours sincerely,
/s/
Xavier Niel
Exhibit 6
CONFIDENTIAL
From: |
Atlas Luxco S.à r.l. |
|
53, boulevard Royal |
|
L-2449 Luxembourg |
|
Grand Duchy of Luxembourg |
|
RCS Luxembourg: B274990 |
|
|
|
(the "Company") |
To: | [*****] in its capacity as Facility Agent under the Facility Agreement (as defined below) |
Dated: 7 March 2024
Dear Sirs,
Facility Agreement - Amendment request letter
We refer to the facility agreement originally dated 20 February 2023
between (amongst others) (i) the Company as the Borrower, (ii) Atlas Investissement as Holdco, (iii) [*****] and [*****] as mandated lead
arrangers, (iv) [*****] as Facility Agent, (v) [*****] as Calculation Agent, (vi) [*****] as Security Agent and (vii) [*****], [*****],
[*****] And [*****] and [*****] as Initial Lenders (as amended from time to time and in particular on 26 May 2023, on 19 July 2023, on
26 September 2023 and on 27 October 2023, the “Facility Agreement”).
Terms defined in the Facility Agreement have the
same meaning in this waiver request unless otherwise defined herein.
It is currently contemplated that:
| - | Holdco will issue (subject to appropriate vesting period) free shares to
the benefit of some of its employees and/or officers from time to time (the “Holdco Share Capital Increases”) and accordingly
will amend upon the expiration of the applicable vesting period, its by-laws to reflect the changes required in connection with the Holdco
Share Capital Increases; |
| - | the Company will issue new ordinary shares to the benefit of one or several
individuals who are currently contemplated to subscribe to such shares with a valuation of such shares by an independent expert and for
consideration on arm’s length terms further to which Holdco would own a minimum of 95% of the voting share capital and issued share
capital of the Company (the “Company Share Capital Increases” together with the implementation of the Holdco Share
Capital Increases, the “Transaction”) and amend its by-laws to reflect the changes required in connection with the
Company Share Capital Increase. |
Where this letter is expressed to amend the Facility
Agreement or Fee and Ratio Letter, such Finance Document shall be amended by (x) the insertion of new text where shown as underlined blue
text (as illustrated here: insertion),
or (y) deleting text that is shown in double-strikethrough and red (as illustrated here: deletion),
but otherwise no amendments should be made to such Finance Document.
2. | Amendment and consent requests |
In this context, the Company would like to request
the consent of the Lenders to the amendment and consent requests described below (the “Amendment Requests”).
| 2.1. | Amendments to
the Fee and Ratio Letter |
In accordance with Clause 34.2(b)(ix) of the Facility
Agreement, the Company requests the consent of all the Lenders to amend the Fee and Ratio Letter, as set out in Schedule 2.
| 2.2. | Definition of “Control” |
In accordance with Clause 34.2 (Exceptions)
of the Facility Agreement, the Company requests the consent of all the Lenders to:
| - | amend the Facility Agreement by including the following definitions in clause
1.1 (Definitions) of the Facility Agreement in the correct alphabetical position in such clause: |
““Borrower Minority
Shareholding” means the individuals holding shares in the Company following the Company Share Capital Increase other than Xavier
Niel;”
““Company Share Capital
Increases” means any share capital increase of shares to the benefit of certain individuals following which Holdco would continue
to hold not less than 95 (ninety-five) per cent. of both the voting share capital and issued share capital of the Borrower;”
““Holdco Minority
Shareholding” means the employees holding shares in Holdco following any Holdco Share Capital Increase other than Xavier Niel;”
““Holdco Share Capital
Increases” means any share capital increase of shares to the benefit of certain employees and/or officers of Holdco following
which the Guarantor continues to hold not less than 90 (ninety) per cent. of both the voting share capital and issued share capital of
Holdco;”
““MIP”
means the management incentive plan in respect of the employees and/or officers of Holdco from time to time, as implemented through, notably,
the Company Share Capital Increases from time to time and the Holdco Share Capital Increases;”
| - | amend the existing definitions of “Control” set out in the Facility
Agreement as follows: |
“Control” means,
unless otherwise expressly specified, the possession, indirectly or directly, of the power to direct or cause alone the direction of the
management or policies of a person, whether through (a) the ability to exercise voting power, by contract or otherwise, or (b) by virtue
of any powers conferred by the articles of association, exempted limited partnership agreement or other documents regulating any other
person. “Controlling” and “Controlled” have meaning correlative thereto. For
the avoidance of doubt, the Borrower Minority Shareholding and the Holdco Minority Shareholding shall accordingly not be deemed for the
purposes of this Agreement as providing Control to the corresponding shareholders over the shares of Holdco and the Borrower respectively
solely by virtue of such individuals or employees owning shares issued as part of the Company Share Capital Increase and/or the Holdco
Minority Share Capital Increase.
| 2.3. | Definition of “Permitted Equity Contribution” |
In accordance with Clause 34.2 (Exceptions)
of the Facility Agreement, the Company requests the consent of all the Lenders to amend the existing definition of “Permitted Equity
Contribution” set out in the Facility Agreement as follows:
“Permitted Equity Contribution”
means any Company Share Capital Increase or
an Equity Contribution in respect of the Borrower provided that:
(a) in
the case of a subscription by Holdco for shares issued by the Borrower, such shares are not redeemable at the option of the shareholder
whilst any amount remains outstanding under any Finance Documents; and
(b) if
by way of loan, such Equity Contribution is:
(i) made
by an Affiliate of the Borrower who has acceded to the terms of the Subordination Deed as a Subordinated Creditor (as such term is defined
in the Subordination Deed);
(ii) subordinated
to the claims of the Finance Parties under the Finance Documents in accordance with the terms of the Subordination Deed; and
(iii) except
for the payment of the net proceeds of the first utilisation which are to be paid by the Borrower to Holdco on the first Utilisation Date
in partial satisfaction of the Borrower’s payment obligation under the terms of the Share Sale Agreement, subject to repayment on
or following the date on which all Secured Obligations in respect of the Facility are fully and unconditionally discharged.
and shall include, for the avoidance
of any doubt, any further claims by Holdco against the Borrower pursuant to the Share Sale Agreement remaining after the first Utilisation
Date, provided such claims satisfy the conditions in paragraphs (i) to (iii) above;
| 2.4. | Borrower Share Pledge Agreement |
In accordance with Clause 34.2(b)(xiii)(A) and
(C) of the Facility Agreement, the Company requests the consent of all the Lenders to amend and restate the Borrower Share Pledge Agreement
by entering into the amendment and restatement agreement prepared by Lenders’ legal counsel in Luxembourg in connection with this
letter and to be entered into on or about the date of this letter between Holdco as pledgor, the Security Agent as pledgee and the Company
as such (the “Borrower Share Pledge Amendment and Restatement Agreement”):
| - | amend the definition of the "Borrower Share Pledge Agreement"
contained in the Facility Agreement as follows: |
“Borrower Share Pledge
Agreement” means the Luxembourg law governed share pledge agreement over the entire
from time to time some or all of the issued
share capital of the Borrower, entered into between Holdco as
pledgor, the Security Agent as pledgee and
the Company as such on or about the Signing Date and
as amended pursuant to an amendment and restatement agreement entered into in March 2024 between Holdco and the Security Agent and the
Company as such (and as further amended and/or amended and restated from time to time).
| 2.5. | Constitutional Documents |
In accordance with Clause 34.2(b)(viii) of the
Facility Agreement, the Company requests the consent of all the Lenders to waive any Default and/or Event of Default arising (i) under
Clause 20.2 (Breach of Covenant and other obligations) of the Facility Agreement in respect of the provisions of Clause 19.14(b) (Constitutional
Documents) of the Facility Agreement and Clause 8.7 of the Borrower Share Pledge Agreement respectively as a result of the amendments
to the by-laws of Holdco solely to reflect the changes required in connection with any Holdco Share Capital Increases and (ii) Clause 20.2
(Breach of Covenant and other obligations) of the Facility Agreement in respect of the provisions of under Clause 19.14(a) (Constitutional
Documents) of the Facility Agreement as a result of the amendments to the by-laws of the Company solely to reflect the changes required
in connection with any Company Share Capital Increase (such constitutional documents shall be in substantially in the form approved by
the Facility Agent, including in accordance with Clause 4).
In accordance with Clause 34.2(b)(viii) of the
Facility Agreement, the Company requests the consent of all the Lenders to waive any Default and/or Event of Default arising under Clause
19.21 (Change of Business) of the Facility Agreement as a result of the employment contracts entered into by Holdco.
In consideration of such consent, Holdco and the
Company also undertake to provide to the Agent such further information about the MIP as the Facility Agent may reasonably require from
time to time.
In accordance with Clause 34.1 (Required Consents)
and Clause 34.2(b) (Exceptions) of the Facility Agreement, the Company requests the consent of the Majority Lenders to:
| - | amend Clause 17.26 (d) (U.S. Securities laws; status of the Collateral
SDRs) of the Facility Agreement as follows: |
“(d) As of the
first Utilisation Date and each Utilisation Date:
| (i) | the Borrower: (i) “beneficially owns” (as defined in Rule 13d-3 under the Exchange Act,
and the rules and regulations thereunder) SDRs in an amount at least equal to the Collateral SDRs and (ii) is not a legal or direct beneficial
owner of any Shares; and |
| (ii) | none of the Obligors, their Affiliates or Connected Persons, or any persons acting in concert with
any of the forgoing, have any economic exposure (including economic exposure held by any of its Connected Persons) to any additional Shares
or SDRs other than the Collateral SDRs (including
through swaps, options, convertible or exchangeable securities, other derivatives or synthetic positions, whether cash or physically-settled
or otherwise), excluding for the avoidance of doubt any Designated Officer Permitted Shares or Designated Officer Permitted SDRs. For
the avoidance of doubt, an Affiliate or Connected Person (or any of its Connected Persons) shall not be deemed to have an economic exposure
to Shares or SDRs in breach of the provisions of this Clause 17.26(d) solely by virtue of being a direct or indirect shareholder of an
Obligor or of the Guarantor.” |
| - | amend Clause 19.18(b) (Compliance with U.S. securities laws; compliance
with the Deposit Agreement) of the Facility Agreement as follows: |
| “(b) | Without prejudice to Clause 19.4(c) (Negative Pledge
and other restrictions), during the term of this Agreement, none of the Obligors, their Affiliates or Connected Persons, or any person(s)
acting in concert with any of the foregoing, shall be the beneficial owner (as defined in Rule 13d-3 under the Exchange Act, but
treating any securities beneficially owned by Borrower that are convertible, exchangeable or exercisable into or for equity securities
of the Issuer as if they had been converted, exchanged or exercised) of an amount of SDRs equal to or exceeding the Aggregated Maximum
Percentage of the outstanding Shares of the Issuer. None of the Obligors, their Affiliates or Connected Persons, or any person(s) acting
in concert with any of the forgoing, shall otherwise have economic exposure (including economic exposure held by any of their respective
Relevant Persons) to Shares (including through swaps, options, convertible or exchangeable securities, other derivative or synthetic
positions, whether cash or physically-settled or otherwise), excluding for the avoidance of doubt any Designated Officer Permitted SDRs
or Designated Officer Permitted Shares. For the avoidance of doubt, (i)
an Affiliate or Connected Person (or any of their respective Relevant Persons) shall not be deemed to have an economic
exposure to Shares in breach of the provisions of this Clause 19.18(b) solely by virtue of being a direct or indirect shareholder of
an Obligor or of the Guarantor and (ii) any person participating
in the MIP shall not be deemed to have an economic exposure to Shares or SDRs in breach of the provisions of this Clause 17.26(d) solely
by virtue of being a direct or indirect shareholder of an Obligor by virtue of owning shares issued as part of the Company Share Capital
Increase and/or the Holdco Minority Share Capital Increase.” |
In accordance with Clause 34.1 (Required Consents)
of the Facility Agreement, the Company requests the consent of the Majority Lenders to amend Clause 19.22 (Arm’s Length Basis)
of the Facility Agreement as follows:
“19.22 (Arm’s Length
Basis)
The Obligors shall not enter into
any transaction with any person except on arm’s length terms and for full market value except
as regards the implementation of the MIP.”
In accordance with Clause 34.1 (Required Consents)
of the Facility Agreement, the Company requests the consent of the Majority Lenders to amend Clause 19.1(b)(ii) (Authorisations)
of the Facility Agreement as follows:
| “(ii) | ensure the legality, validity, enforceability or
admissibility in evidence of any Finance Document or the Finance Documents to which it is a party.” |
| 2.10. | Security and title to assets |
In accordance with Clause 34.1 (Required Consents)
of the Facility Agreement, the Company requests the consent of the Majority Lenders to amend the final paragraph of Clause 17.14 (b)(ii)
(Security and title assets) of the Facility Agreement as follows:
“as a result of (A) the Collateral
SDRs being subject to the Security created under the Transaction Security Documents, (B) the enforcement of a Transaction Security
Document, or (C) any appropriation or transfer of all or any part of the Collateral SDRs by or to the Lenders or any other person, provided
in the case of paragraphs (f)(e)(i)
and (f)(e)(ii)
above, the relevant Lender or such other person does not hold any other SDRs or Shares. ”
3. | Security Confirmation and Representations |
| 3.1. | Security Confirmation |
Each Obligor confirms that, with effect
from (and including) the Effective Date (as such term is defined in paragraph 4 below), the security created by the Transaction Security
Documents to which that Obligor is a party shall:
| (a) | save as amended and restated by the Borrower Share Pledge Amendment and
Restatement Agreement, remain in full force and effect notwithstanding the granting of the consent of the Lenders to the Amendment Requests
contemplated in this letter; and |
| (b) | continue to secure its Secured Obligations (as defined in the Transaction
Security Documents to which it is a party) under the Finance Documents as amended by this letter (including, but not limited to, the Facility
Agreement and the Fee and Ratio Letter, each as amended pursuant to this letter, and the Borrower Share Pledge Agreement, as amended pursuant
to the Borrower Share Pledge Amendment and Restatement Agreement). |
Each of the signatories to this letter
confirms that the waiver and amendment of contemplated by this letter shall not constitute a novation of the Facility Agreement.
Each Obligor makes the representations
and warranties set out in Clause 17 (Representations) of the Facility Agreement, by reference to the facts and circumstances existing
on the date of this letter and on the Effective Date, but (i) as if references to the “Signing Date” and “Utilisation
Date” meant the date of this letter and the Effective Date, and (ii) as though, from the date of this letter, references to a “Finance
Document” included this letter and the Borrower Share Pledge Amendment and Restatement Agreement.
For the avoidance of doubt, the Borrower and the
Facility Agent (acting on instructions of all the Lenders) agrees that this letter constitutes a Finance Document and the Borrower Share
Pledge Amendment and Restatement Agreement constitutes a Transaction Security Document.
The amendments and the consents contemplated by
this letter shall take effect when the Facility Agent receives the documents and evidence set out in Schedule 1 (Conditions Precedent
to the Effective Date) to this letter each satisfactory in form and substance to the Facility Agent (as instructed by all the Lenders)
(the “Effective Date”). If the Effective Date has not occurred within six (6) months of the date of this letter (or
such other date agreed by the Facility Agent on instructions by all the Lenders), then paragraph 2 (Amendment and consent requests)
above will lapse and none of the amendments recorded above will take effect.
The Amendment Requests are sent to the Lenders
on the basis that:
| (i) | the consents of the Lenders requested pursuant to this letter are given strictly on the basis of the terms
of this letter and without prejudice to the rights of the Finance Parties. No failure to exercise, nor any delay in exercising, on the
part of any Finance Party, any right or remedy under this letter shall operate as a waiver, nor shall any single or partial exercise of
any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided
in this letter are cumulative and not exclusive of any rights or remedies provided by law; |
| (ii) | save for the Amendment Requests and the Borrower Share Pledge Amendment and Restatement Agreement, nothing
in this letter shall be deemed to constitute an amendment, a waiver of or a consent under any provision or condition of any Finance Document
whatsoever. Except as varied by the terms of this letter and the Borrower Share Pledge Amendment and Restatement Agreement, the terms
of the Finance Documents shall remain in full force and effect; |
| (iii) | for the avoidance of doubt, each Lender who consents to the above requests by confirming its consent to
the Facility Agent and the Security Agent acknowledges and agrees that unless the above amendment requests (or any of them) are fully
and finally withdrawn by the Company, a consent received by the Facility Agent and the Security Agent in accordance with this letter from
a Lender will be irrevocable and will bind any other person to whom it assigns, transfers or sub-participates any of its commitments under
the Facility Agreement and the other Finance Documents (and such response shall remain valid and binding on such assignee(s), transferee(s),
sub-participant(s) and any future holder of the relevant commitment from time to time); and |
| (iv) | each Obligor shall, at the request of the Facility Agent and at its own
expense, do all such acts and things necessary or desirable to give effect to the amendments effected or to be effected pursuant to this
letter. |
If any provision of this letter is or becomes
invalid, illegal or unenforceable in any respect under any law the validity, legality or enforceability of the remaining provisions shall
not be affected or impaired in any way.
Failure by one or more parties (“Non
Signatories”) to execute this letter on the date hereof will not invalidate the provisions of this letter as between the other
Parties who do execute this letter. Such Non Signatories may execute this letter on a subsequent date and will thereupon become bound
by its provisions.
Notwithstanding any other term of the Finance
Documents or of this letter, we reserve the right, at any time to revoke any or all of the Amendment Requests prior to signing this letter
by all parties to it.
This amendment request letter and any non-contractual
obligations arising out of or in connection with it are governed by English law. Clause 40 (Enforcement) of the Facility Agreement
applies mutatis mutandis to this waiver letter.
*
* *
[Intentionally left blank]
Schedule
1
Conditions
precedent to the effective date
[*****]
Schedule
2
[*****]
Yours faithfully,
ATLAS LUXCO S.À R.L.
/s/ Anthony Maarek |
|
By: Anthony Maarek |
|
Title: Class A Manager |
|
|
|
|
|
/s/ Tigran Khachatryan |
|
By: Tigran Khachatryan |
|
Title: Class B Manager |
|
HOLDCO
ATLAS INVESTISSEMENT
By: |
/s/ Anthony Maarek |
|
Name: Anthony Maarek |
|
Title Directeur Général |
|
Acknowledged and agreed by |
|
|
|
|
|
|
|
[*****] as Facility Agent (acting on behalf of all the Lenders) |
|
|
|
By: |
[*****] |
|
Title: |
[*****] |
|
Date: |
8 March 2024 |
|
|
|
|
[*****] as Security Agent (acting on behalf of all the Lenders) |
|
|
|
|
By: |
[*****] |
|
Title: |
[*****] |
|
Date: |
8 March 2024 |
|
Exhibit 7
CONFIDENTIAL
From: Atlas Luxco S.à r.l.
53, boulevard Royal
L-2449 Luxembourg
Grand Duchy of Luxembourg
RCS Luxembourg: B274990
(the "Company")
To: [*****] in its capacity as Facility Agent under the Facility Agreement (as defined below)
Dated: 13 March 2024
Dear Sirs,
Facility Agreement - Amendment letter
We refer to the facility agreement originally
dated 20 February 2023 between (amongst others) (i) the Company as the Borrower, (ii) Atlas Investissement as Holdco, (iii) [*****]
and [*****] as mandated lead arrangers, (iv) [*****] as Facility Agent, (v) [*****] as Calculation Agent, (vi) [*****]
as Security Agent and (vii) [*****], [*****], [*****] And [*****] and [*****] as Initial Lenders (as amended from time to time and
in particular on 26 May 2023, on 19 July 2023, on 26 September 2023, on 27 October 2023 and on 8 March 2024,
the “Facility Agreement”).
Terms defined in the Facility Agreement have the
same meaning in this amendment letter unless otherwise defined herein.
It is currently contemplated that Holdco and the
Issuer will enter into an advisory agreement pursuant to which certain employees of Holdco, among those who have been disclosed to the
Lenders in the context of the amendment request letter dated 8 March 2024, will provide to the Issuer advisory and consultancy services
as requested by the Issuer (on a recommendation basis only to remain solely within the authority of the management of the Issuer) for
a maximum amount of EUR 5.000.000 per annum (the "Advisory Activity").
Where this letter is expressed to amend the Facility
Agreement, the Facility Agreement shall be amended by (x) the insertion of new text where shown as underlined blue text (as illustrated
here: insertion), or (y) deleting
text that is shown in double-strikethrough and red (as illustrated here: deletion),
but otherwise no amendments should be made to such Facility Agreement.
| 2. | Amendment and consent request |
In this context, the Company would like to request
the consent of the Lenders to the amendment and consent request described below (the “Amendment Request”).
In accordance with Clause 34.1 (Required Consents)
of the Facility Agreement, the Company requests the consent of the Majority Lenders to:
| - | amend the Facility Agreement by including the following definitions in clause 1.1 (Definitions)
of the Facility Agreement
in the correct alphabetical position in such clause: |
““Permitted Advisory
Activity” means the advisory and consultancy services provided by employees of Holdco to the Issuer on an arm's length basis,
for a maximum turnover amount of EUR 5.000.000 per annum or its equivalent in any currency;”
| - | amend Clause 19.21 (Change of Business) of the Facility Agreement as follows: |
“19.21 Change
of Business
Each Obligor shall procure that no
substantial change is made to the general nature of the business of any of the Obligors from that carried on at the Signing Date (other
than the provision of Permitted Advisory Activity by Holdco).”
For the avoidance of doubt, the Borrower and the
Facility Agent (acting on instructions of the Majority Lenders) agrees that this letter constitutes a Finance Document.
The Amendment Request is sent to the Lenders on
the basis that:
| (i) | the consents of the Lenders requested pursuant to this letter are given strictly on the basis of the terms
of this letter and without prejudice to the rights of the Finance Parties. No failure to exercise, nor any delay in exercising, on the
part of any Finance Party, any right or remedy under this letter shall operate as a waiver, nor shall any single or partial exercise of
any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided
in this letter are cumulative and not exclusive of any rights or remedies provided by law; |
| (ii) | save for the Amendment Request, nothing in this letter shall be deemed to constitute an amendment, a waiver
of or a consent under any provision or condition of any Finance Document whatsoever. Except as varied by the terms of this letter, the
terms of the Finance Documents shall remain in full force and effect; |
| (iii) | for the avoidance of doubt, each Lender who consents to the above request by confirming its consent to
the Facility Agent and the Security Agent acknowledges and agrees that unless the above amendment request is fully and finally withdrawn
by the Company, a consent received by the Facility Agent and the Security Agent in accordance with this letter from a Lender will be irrevocable
and will bind any other person to whom it assigns, transfers or sub-participates any of its commitments under the Facility Agreement and
the other Finance Documents (and such response shall remain valid and binding on such assignee(s), transferee(s), sub-participant(s) and
any future holder of the relevant commitment from time to time); and |
| (iv) | each Obligor shall, at the request of the Facility Agent and at its own expense, do all such acts and
things necessary or desirable to give effect to the amendments effected or to be effected pursuant to this letter. |
If any provision of this letter is or becomes
invalid, illegal or unenforceable in any respect under any law the validity, legality or enforceability of the remaining provisions shall
not be affected or impaired in any way.
Failure by one or more parties (“Non
Signatories”) to execute this letter on the date hereof will not invalidate the provisions of this letter as between the other
Parties who do execute this letter. Such Non Signatories may execute this letter on a subsequent date and will thereupon become bound
by its provisions.
Notwithstanding any other term of the Finance
Documents or of this letter, we reserve the right, at any time to revoke the Amendment Request prior to signing this letter by all parties
to it.
This amendment letter and any non-contractual
obligations arising out of or in connection with it are governed by English law. Clause 40 (Enforcement) of the Facility Agreement
applies mutatis mutandis to this amendment letter.
*
* *
[Intentionally left blank]
Yours faithfully,
ATLAS LUXCO S.À R.L.
/s/ Anthony Maarek |
|
By: Anthony Maarek |
|
Title: Class A Manager |
|
|
|
|
|
/s/ Tigran Khachatryan |
|
By: Tigran Khachatryan |
|
Title: Class B Manager |
|
HOLDCO
ATLAS INVESTISSEMENT
/s/ Anthony Maarek |
|
By: Anthony Maarek |
|
Title: Directeur Général |
|
Acknowledged and agreed by |
|
|
|
|
|
|
|
[*****] as Facility Agent (acting on behalf of the Majority Lenders) |
|
|
|
By: |
[*****] |
|
Title: |
[*****] |
|
Date: |
21 March 2024 |
|
|
|
|
[*****] as Security Agent (acting on behalf of the Majority Lenders) |
|
|
|
|
By: |
[*****] |
|
Title: |
[*****] |
|
Date: |
21 March 2024 |
|
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