UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Rule 14d-101)
SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(d)(4) OF THE SECURITIES EXCHANGE
ACT OF 1934
ATENTO S.A.
(Name of Subject Company)
ATENTO S.A.
(Name of Person(s) Filing Statement)
Ordinary Shares, no par value
(Title of Class of Securities)
L0427L204
(CUSIP Number of Class of Securities)
Dimitrius Oliveira
Atento, S.A.
1, rue Hildegard Von Bingen, 1282, Luxembourg
Grand Duchy of Luxembourg
Email: investor_relations@atento.com
+1 (979)633-9539
(Name, Address and Telephone Number(s) of Person Authorized to Receive Notices and
Communications on Behalf of the Person(s) Filing Statement)
With a copy to:
John H. Butler
Sidley Austin LLP
787 7th Ave, NY 10019
New York, United States
(212) 839-5300
|
|
Alan G. Grinceri
Sidley Austin LLP
70 Saint Mary Axe
London, United Kingdom
+44 (20) 7360-3770 |
☐
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
INTRODUCTION
Atento, S.A. (“Atento” or the
“Company”) is filing this Solicitation/Recommendation Statement on Schedule 14D-9 (together with any exhibits and annexes
attached hereto, this “Statement”) in connection with the tender offer by MCI Capital, LC, an Iowa limited liability company
(the “Offeror”) and a wholly owned subsidiary of MCI, LC, an Iowa limited liability company (the “Parent”), and
beneficially owned by Mark Anthony Marlowe a/k/a Anthony Marlowe (“Mr. Marlowe”) to purchase up to 1,525,000 ordinary
shares of Atento in cash at a price of $5.00 per share, without interest and less any applicable tax withholding (the “Offer Price”)
upon the terms and subject to the conditions set forth in the Offer to Purchase, dated November
18, 2022 (as may be amended or supplemented from time to time, the “Offer to Purchase”), and in the related Letter of Transmittal
(as may be amended or supplemented from time to time, the “Letter of Transmittal,” and together with the Offer to Purchase,
the “Offer”). The Offer is subject to the terms and conditions set forth in the Tender Offer Statement on Schedule TO (together
with the exhibits thereto, as amended on November 18, 2022, and as may be further amended from time to time, the “Schedule TO”),
filed by the Offeror with the Securities and Exchange Commission (the “SEC”) on November 18, 2022. According to the Offer
to Purchase, the Offer will expire at 12:00 midnight at the end of the day on December 16, 2022 (the “Expiration Date”), unless
the Offer is extended or terminated early.
If more than 1,525,000
Shares are validly tendered and not properly withdrawn prior to the expiration of the Offer, the Shares will be subject to proration as
described in the Offer to Purchase. According to the Schedule TO, the Offer is subject to numerous conditions, which include the following,
among others:
(1) the “Minimum
Condition”, there being validly tendered and not withdrawn in accordance with the terms of the Offer, 775,000 Shares, or approximately
5.0%, of the outstanding Shares;
(2) there is no law,
regulation, injunction, judgment or order by a governmental entity or court in effect that would make the Offer illegal or otherwise prohibit
the consummation of the Offer; or
(3) no change, event,
effect, occurrence or development, individually or in the aggregate, has occurred since the commencement of the Offer that has had or
would reasonably be expected to have a material adverse effect on the Company.
In addition, the
Offeror reserves the right, subject to applicable law, at any time or from time to time prior to the expiration of the Offer, in their
sole discretion, to waive or otherwise modify the terms and conditions of the Offer in any respect. The Offeror will terminate the Offer
only pursuant to the specified conditions described in the Offer to Purchase.
The Offeror’s address, as set forth
in the Offer to Purchase, is 2937 Sierra Ct. SW, Iowa City, IA 52240.
The Company does not take any
responsibility for the accuracy or completeness of any information described in this Statement contained in the Offer or the Schedule
TO.
Item 1. Subject Company Information.
Name and Address.
The
name of the subject company is Atento, S.A., a company incorporated under the laws of Luxembourg, and the address of the principal executive
office of the Company is 1, rue Hildegard Von Bingen, 1282, Luxembourg Grand Duchy of Luxembourg. The telephone number for the Company’s
principal executive office is +1 (979)633-9539.
Securities.
The title of the class of equity securities
to which this Statement relates is the Company’s ordinary shares without nominal value. As of 30 November 2022, there were outstanding
15,451,667 Shares.
Item 2. Identity and Background of Filing Person.
The name, business address and business
telephone number of Atento, which is the subject company and the person filing this Schedule 14D-9, are set forth in “Item 1. Subject
Company Information — Name and Address” above.
This Schedule 14D-9 relates to the Offer
by MCI Capital, LC to purchase up to a total of 1,525,000 of the outstanding ordinary shares, no par value per share, of Atento, which
represents approximately 9.9% of the issued and outstanding Shares of the Company as of June 30, 2022, from all holders of Shares, at
the Offer Price, as described above. The Offer is being made on the terms and subject to the conditions set forth in the Schedule TO.
Item 3. Past Contacts, Transactions, Negotiations and Agreements.
Except
as described in this Statement, on the date of the filing of this Statement, there is no material agreement, arrangement or understanding
or any actual or potential conflict of interest between the Company and its affiliates and: (i) the Company’s executive officers,
directors or affiliates; or (ii) the Offeror, its executive officers, directors or affiliates. The information set forth in the sections
in the Company’s Annual Report on Form 20-F for the year ended December 31, 2021 filed with the SEC on May 2, 2022 (the “Form
20-F”) that are titled “Item 6.A. Directors and Senior Management,” “Item 6.B. Compensation,” “Item
6.C. Board Practices,” “Item 6.E. Share Ownership,” “Item 7.A Major Shareholders” and “Item 7.B. Related
Party Transactions” and the Company’s reports on Form 6-K furnished to the SEC on May 5, 2022, June 7, 2022 (including exhibit
10.1 thereto), June 13, 2022, July 5, 2022, September 7, 2022 under the heading “Extension to lock-up agreement with main institutional
shareholders” (including exhibits 10.1, 10.2, 10.3 and 10.4 thereto), and November 30, 2022 are incorporated herein by reference.
Item 4. The Solicitation/Recommendation.
Solicitation Recommendation of the Board of Directors.
Rule 14e-2 under the Exchange Act
requires that Atento, as the subject company of the Offer, make a statement as to its position with respect to the Offer. At a meeting
held on November 25, 2022, the Board of Atento met to discuss the Offer and unanimously adopted resolutions to express no opinion and
to remain neutral toward the Offer.
The Company and the Board urge each Shareholder
to make his, her or its own decision as to whether to tender its Shares and, if so, how many Shares to tender. Each shareholder should
carefully read the Offer to Purchase, the Letter of Transmittal and other materials related to the Offer, and this Statement before making
any decision regarding tendering its Shares and make such decision based on all of the available information, including the adequacy of
the Offer Price in light of the recent market prices of the Ordinary Shares, the shareholder’s own investment objectives, investment
time horizon, diversification needs, risk tolerance, liquidity needs and individual tax circumstances, and the shareholder’s views
as to the Company’s prospects and outlook as well as the current economic, business and political climate. In making its determination
to express no opinion and to remain neutral with respect to the Offer, the Board considered that the Offer provides holders of Shares
with certain potential benefits, as well as certain potential disadvantages, as described in further detail under “Reasons for the
Recommendation” below.
Reasons for the Recommendation.
In order to analyze the Offer and make
an informed decision with respect to the Offer, the Board consulted with Atento’s senior management and external advisors in evaluating
the Offer.
As part of its evaluation and decision
process, the Board considered a number of factors, including the following:
| · | Financial and Business Information. The Board took into
account the historical and current financial condition, results of operations, business and prospects of the Company; the current geopolitical
situation; national and international economic conditions; and conditions in the markets and industries in which the Company operates
or owns interests. |
| · | Potential Future Increase in Share Value. The Board believes
that stockholders who tender their shares will forego the potential opportunity to benefit from long-term appreciation in the value of
their investment in Atento.
|
| · | Historical stock prices. The Shares are listed for trading
on NYSE under the symbol “ATTO”. On December 2, the last reported sale price of the Company’s Shares on NYSE was $5.60
per Share. The Offer price of $5.00 is below the most recent closing price of $5.60 as of the date of this Schedule 14D-9 and is -59.97%
of the last 200 days Simple Moving Average for the Company’s Shares, although there can be no assurance that at the expiration of
the Offer or the time of payment for the Shares in the Offer that the market price will still be above the Offer price or that after the
Offer expires or is terminated that the market price will remain above the Offer price. |
| · | Liquidity and Trading Volume. The Board believes that the
historically limited trading volume for the Shares on the NYSE and the corresponding liquidity challenges that a stockholder could face
in attempting to sell a significant number of Shares on the NYSE should be taken into account in evaluating the Offer. In addition, the
purchase of Shares by the Offeror pursuant to the Offer will reduce the number of Shares that might otherwise trade publicly and may reduce
the number of holders of Shares, which could in turn affect the liquidity and price volatility of the remaining Shares held by the public. |
| · | Form of Consideration. The Offer is for a fixed price per
share in cash, which the Board believes will provide price certainty and immediate liquidity for shareholders who desire liquidity without
the incurrence of any brokerage commissions. |
| |
· |
Reported Purpose of the Offer. The purpose of the Offer as stated by the Offeror is to obtain
an ownership position in the Company and not to acquire or influence control of the business of the Company, so the Board believes that
the Offer should not entail any relevant change in the Company’s control or management. That notwithstanding, the Company cannot
anticipate any future potential actions of the Offeror to increase its number of shares or change its plans with respect to the Company.
In addition to the above, the rights of a shareholder holding more than 10% of the voting rights of a company under Luxembourg law should
be considered for the purpose of evaluating potential actions that the Offeror could take if it eventually exceeds that percentage. Those
rights include, among others, the right to request convening general shareholders’ meetings and to add points to the agenda. |
Intent to Tender.
To the knowledge
of Atento, after reasonable inquiry, none of the directors, officers, affiliates or subsidiaries of the Company, to the extent they beneficially
own any Shares, currently intends to sell or tender in the Offer Shares beneficially owned by them. The intention of any Company director
to not tender Shares that they hold pursuant to the Offer is a personal investment decision based upon such director’s particular
circumstances and is not, and should not be construed as, an opinion on the Offer by the Board.
Item 5. Persons/Assets, Retained, Employed, Compensated
or Used.
The Company
has engaged Okapi Partners, LLC (“Okapi”) to provide advisory, consulting and solicitation services in connection with, among
other things, the Offer. The Company has agreed to pay customary compensation for such services. In addition,
the Company has arranged to reimburse Okapi for its reasonable out-of-pocket expenses and to indemnify it against certain liabilities
arising from or in connection with the engagement.
Except
as set forth above, neither the Company nor any person acting on its behalf has or currently intends to employ, retain or compensate any
person to make solicitations or recommendations to the security holders of the Company with respect to the Offer.
Item 6. Interest in Securities of the Subject
Company.
To the knowledge of Atento, after reasonable
inquiry, none of Atento, their respective executive officers or directors, or any majority-owned subsidiary of Atento has effected any
transaction in Shares during the past sixty (60) days.
Item 7. Purposes of the Transaction and Plans or Proposals.
The
Company routinely maintains contact with other participants in its industry regarding a wide range of business transactions. It has not
ceased, and has no intention of ceasing, such activity as a result of the Offer. The Company’s policy has been, and continues to
be, not to disclose the existence or content of any such discussions with third parties (except as may be required by law) as any such
disclosure could jeopardize any future negotiations that the Company may conduct.
Except
as set forth in this Statement, the Company is not undertaking or engaged in any negotiations in response to the Offer that relate to
or would result in (a) a tender offer for or other acquisition of the Company’s securities by the Company, any subsidiary of
the Company, or any other person; (b) any extraordinary transaction, such as a merger, reorganization, or liquidation, involving
the Company or any subsidiary of the Company; (c) any purchase, sale, or transfer of a material amount of assets of the Company or
any subsidiary of the Company; or (d) any material change in the present dividend rate or policy, indebtedness, or capitalization
of the Company.
Except
as set forth in this Statement or in the exhibits to this Statement or as incorporated in this Statement by reference, to the knowledge
of the Company, there are no transactions, resolutions of the Board, agreements in principle, or signed contracts in each case in response
to the Offer that relate to one or more of the events referred to in the preceding paragraph.
Item 8. Additional Information.
Regulatory Approvals.
Except
as set forth in this Statement and the exhibits to this Statement, the Company is not aware of any material filing, approval or other
action by or with any governmental, administrative or regulatory authority or agency that would be required for the Offeror to acquire
or own the Shares pursuant to the Offer.
Appraisal Rights.
Appraisal
rights are not available to holders of Shares in connection with the Offer.
Certain Forward-Looking Statements.
The
information contained in this Schedule 14D-9 is as of December 5, 2022. The Company is not obligated, and does not intend, to update these
forward-looking statements to reflect events or circumstances after the date of this document, except as required by law.
This
Schedule 14D-9 and the materials incorporated by reference herein includes “forward-looking” statements, which are statements
that relate to the Company’s and the Offeror’s and their respective affiliates’ future plans, earnings, objectives,
expectations and performance, potential benefits of the Offer, the parties’ ability to satisfy the conditions to the consummation of the tender
offer, as well as any facts or assumptions underlying these statements, that do not relate to historical or current fact. Actual results
may differ materially from the results expressed or implied in these forward-looking statements due to various risks, uncertainties or
other factors. These forward looking statements are generally identified by words or phrases, such as “anticipate”, “estimate”,
“plan”, “project”, “expect”, “believe”, “intend”, “foresee”, “forecast”,
“will”, “may”, “should,” “outlook,” “continue,” “intend,” “aim”
and similar words or phrases.
Risks
and uncertainties include, among other things, (a) risks related to the satisfaction or waiver of the conditions to the Offeror’s
obligation to accept for payment and pay for the Shares; (b) the failure of the proposed Offer to close for any other reason;
(c) uncertainties as to how many of the Company’s shareholders will tender their Shares; (d) the possibility that competing
offers may be made; (e) risks related to disruption of management’s attention from the Company’s ongoing business operations
due to these transactions; (f) the outcome of any legal proceedings, regulatory proceedings or enforcement matters that may
be instituted against the Company and others relating to the Offer; (g) the risk that the pendency of the proposed Offer disrupts
the Company’s current plans and operations; (h) the effect of the announcement of the proposed Offer on the Company’s
relationships with its customers, operating results and business generally; and (i) the amount of the costs, fees, expenses
and charges related to the Offer. You should consider these factors carefully in evaluating the forward-looking statements. Many of these
risks and uncertainties are beyond the Company’s control.
For
a more detailed discussion of these and other risk factors, see the Risk Factors sections of the Company’s Annual Report on Form 20-F
for the year ended December 31, 2021, filed with the SEC on May 2, 2022 and in any subsequently filed Current Reports on Form 6-K
filed by the Company with the SEC. Readers are cautioned not to place undue reliance on forward-looking statements, which speak only as
of their dates.
Item 9. Exhibits
The
following exhibits are incorporated by reference as part of this Statement:
| Exhibit No. |
|
Description |
| (e)(1) |
|
Sections entitled “Item 6.A. Directors and Senior Management,” “Item 6.B. Compensation,” “Item 6.C. Board Practices,” “Item 6.E. Share Ownership,” “Item 7.A Major Shareholders” and “Item 7.B. Related Party Transactions” of the Company’s Annual Report on Form 20-F for the year ended December 31, 2021 (incorporated herein by reference to the Form 20-F filed with the SEC on May 2, 2022). |
| (e)(2) |
|
Sections
entitled “Item 6.A.
Directors and Senior Management,” “Item 6.B. Compensation,” “Item 6.C. Board Practices,” “Item
6.E. Share Ownership,” “Item 7.A Major Shareholders” and “Item 7.B. Related Party Transactions” of
the Company's Annual Report on Form 20-F for the year ended December 31, 2021 (incorporated herein by reference to the Form 20-F
filed with the SEC on May 2, 2022) and the Company’s reports on Form 6-K furnished to the SEC on May
5, 2022, June 7,
2022 (including exhibit 10.1 thereto), June
13, 2022, July 5,
2022, September
7, 2022 under the heading “Extension to lock-up agreement with main institutional shareholders” (including exhibits
10.1, 10.2, 10.3 and 10.4 thereto), and November
30, 2022 are incorporated herein by reference. |
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
| |
ATENTO S.A. |
| Date: December 5, 2022 |
By: /s/ Dimitrius Oliveira
Name: Dimitrius Oliveira
Title: Chief Executive Officer |
| |
|
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