SC TO-I/A
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
SCHEDULE TO
Tender Offer Statement under
Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act
of 1934
(Amendment
No. 3)
Mercer International
Inc.
(Name of Subject Company
(Issuer) and Filing Person (Offeror))
8.5% CONVERTIBLE SENIOR
SUBORDINATED NOTES DUE 2010
(Title of Class of
Securities)
U58839AA6, 588056AG6 and 588056AF8
(CUSIP Numbers of Class of
Securities)
David M. Gandossi
Mercer International Inc.
650 West Georgia Street
Suite 2840
Vancouver, British Columbia, Canada V6B 4N8
(604) 684-1099
(Name, address and telephone
number of person authorized to receive notices and
communications on behalf of filing person)
Copies to:
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H.S. Sangra, Esq.
Sangra Moller LLP
1000 Cathedral Place, 925 West Georgia Street
Vancouver, British Columbia, Canada V6C 3L2
(604) 662-8808
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David R. Wilson, Esq.
Davis Wright Tremaine LLP
Suite 2200, 1201 Third Avenue
Seattle, Washington 98101-3045
(206) 757-8274
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CALCULATION
OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$67,255,000
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$3,752.83
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The transaction valuation is estimated solely for the purposes
of calculating the Filing Fee pursuant to
Rule 0-11
under the Securities Exchange Act of 1934 as amended
(“Rule 0-11”).
The transaction valuation estimate assumes the exchange of
$67,255,000 principal amount of the outstanding
8.5% Convertible Senior Subordinated Notes due 2010 of
Mercer International Inc. |
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The amount of Filing Fee is calculated in accordance with
Rule 0-11
by multiplying the Transaction Valuation by .00005580 or $55.80
for each $1,000,000 of the value of the transaction. |
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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: $3,752.83
Form or Registration No.: Schedule TO
Filing Party: Mercer International Inc.
Date Filed: July 13, 2009
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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:
o third-party
tender offer subject to
Rule 14d-1
þ issuer
tender offer subject to
Rule 13e-4
o going-private
transaction subject to
Rule 13e-3
o amendment
to Schedule 13D under
Rule 13d-2
Check the following box if the filing is a final amendment
reporting the results of the tender
offer:. o
INTRODUCTORY
STATEMENT
This Amendment No. 3 (this “Amendment
No. 3”) amends and supplements the Issuer Tender Offer
Statement on Schedule TO (the “Schedule TO”)
originally filed with the Securities and Exchange Commission
(the “SEC”) on July 13, 2009, as amended by
Amendment No. 1 to the Schedule TO filed with the SEC
on August 11, 2009, and as further amended by Amendment
No. 2 to Schedule TO filed with the SEC on
August 25, 2009, is being filed by Mercer International
Inc., a Washington corporation (“Mercer”), pursuant to
Section 13(e)-4
of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), in connection with an offer by Mercer
to exchange (the “Exchange Offer”’) any and all
of its outstanding 8.5% Convertible Senior Subordinated
Notes due 2010 (the “Old Notes”). The Exchange Offer
is being made by Mercer pursuant to an exemption from
registration under Section 3(a)(9) of the Securities Act
of 1933, as amended, and is contingent upon the satisfaction
of certain customary conditions.
The Exchange Offer is made upon the terms and subject to the
conditions described in the Amended and Restated Offering
Circular (the “Amended and Restated Offering
Circular”) dated September 9, 2009, and the
accompanying Amended and Restated Letter of Transmittal. The
Amended and Restated Offering Circular and the accompanying
Amended and Restated Letter of Transmittal are filed as exhibits
(a)(1)(v) and (a)(1)(vi), respectively, hereto and incorporated
herein by reference.
The Amended and Restated Offering Circular amends and restates
in its entirety the Company’s original offering circular
dated July 13, 2009 in order to reflect an increase in the
amount and type of exchange consideration being offered by
Mercer to holders of the Old Notes. For each $1,000 principal
amount of the Old Notes, Mercer is now offering to exchange:
(i) $1,000 in principal amount of Mercer’s new
8.5% Convertible Senior Subordinated Notes due 2011 (the
“New Notes”); (ii) a premium of 17 shares of
Mercer’s common stock, par value $1.00 per share (the
“Common Stock”); (iii) a premium of 15 warrants
to purchase one share of Common Stock per warrant (the
“Warrants”); and (iv) accrued and unpaid interest
on the Old Notes to, but excluding, the settlement date of the
Exchange Offer, which is expected to be approximately $37.54
payable in cash (the “Accrued and Unpaid Interest). Mercer
is seeking to exchange any and all outstanding Old Notes in the
Exchange Offer.
The Letter to DTC Participants is amended and restated in its
entirety by the Amended and Restated Letter to DTC Participants,
filed as exhibit (a)(1)(vii) hereto and incorporated herein by
reference. The Letter to Clients for use by brokers, dealers,
commercial banks, trust companies and other nominees is amended
and restated in its entirety by the Amended and Restated Letter
to Clients for use by brokers, dealers, commercial banks, trust
companies and other nominees, filed as exhibit (a)(1)(viii)
hereto and incorporated herein by reference.
All information set forth in the Amended and Restated Offering
Circular is incorporated by reference to supplement Items 1
through 11 of this Amendment No. 3 to the Schedule TO,
to the extent such Items incorporate by reference the
information contained in the Amended and Restated Offering
Circular and as more particularly set forth below:
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Item 1.
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Summary
Term Sheet.
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The information set forth in the Amended and Restated Offering
Circular in the sections entitled “Summary —
Summary Terms of the Exchange Offer” and “Questions
and Answers about the Exchange Offer” is incorporated
herein by reference.
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Item 4.
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Terms
of the Transaction.
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The information set forth in the Amended and Restated Offering
Circular in the sections entitled “Summary”,
“Questions and Answers About the Exchange Offer”,
“Terms of the Exchange Offer”, “Description of
Mercer Capital Stock”, “Description of the New
Notes”, “Description of the Warrants”,
“Comparison of Rights of Holders of Old Notes and Holders
of Mercer Common Stock”, “Comparison between the
Material Terms of the Old Notes and the New Notes” and
“Material U.S. Federal Income Tax Considerations”
is incorporated herein by reference.
1
Except as described below, to Mercer’s knowledge based on
reasonable inquiry, no Old Notes are owned by any officer,
director or affiliate of Mercer. Therefore, other than as
described below, no Old Notes will be acquired from any officer,
director or affiliate of Mercer in connection with the Exchange
Offer.
Peter Kellogg and IAT Reinsurance Company Ltd.
(“IAT”), which hold $12,750,000 principal amount of
the Old Notes, have the option to tender $12,750,000 principal
amount of the Old Notes in the Exchange Offer. As of the date of
this Amendment No. 3 to the Schedule TO, neither Peter
Kellogg nor IAT have informed Mercer as to whether they intend
to tender any of their Old Notes in the Exchange Offer.
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Item 5.
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Past
Contacts, Transactions, Negotiations and
Agreements.
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(a)
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Agreements
involving the subject company’s securities.
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In respect of the Old Notes, Mercer entered into an indenture
dated as of October 10, 2003, as amended and supplemented,
with Wells Fargo Bank, National Association, as trustee (which
was filed as an exhibit to the Schedule TO).
The information set forth in the Amended and Restated Offering
Circular in the sections entitled “Terms of the Exchange
Offer”, “Information Agent”, “Exchange
Agent”, “Description of Mercer Capital Stock” and
“Interests of Directors and Officers”, and in the
related Amended and Restated Letter of Transmittal, is
incorporated herein by reference in response to this item.
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Item 7.
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Source
and Amount of Funds or Other Consideration.
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The information set forth in the Amended and Restated Offering
Circular in the sections entitled “Summary —
Sources of Payment of the Exchange Offer Consideration”,
“Questions and Answers About the Exchange Offer —
How will Mercer fund the Accrued and Unpaid Interest”,
“Information Agent” and “Exchange Agent” is
incorporated herein by reference. In accordance with the terms
of the Exchange Offer, Mercer would have to issue approximately
$67.3 million aggregate principal amount of New Notes,
1,143,335 shares of Common Stock and 1,008,825 Warrants and
pay approximately $2.5 million for Accrued and Unpaid
Interest to acquire the maximum amount of the Old Notes sought
in this Exchange Offer. Mercer expects to pay the fees and
expenses in connection with the Exchange Offer from
Mercer’s working capital.
Not applicable.
Not applicable.
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Item 10.
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Financial
Statements.
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(a)
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Financial
Information.
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The information set forth in the Amended and Restated Offering
Circular in the sections entitled “Exchange Rates”,
“Available Information”, and “Selected
Consolidated Financial and Operating Date” and “Ratio
of Operating EBITDA to Fixed Charges” is incorporated
herein by reference. The information, including the financial
statements set forth under Item 8, Financial Statements and
Supplementary Data, in Mercer’s Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008 and
Part 1, Item 1 Financial Statements, in Mercer’s
Quarterly Reports on
Form 10-Q
for the Quarters ended March 31, 2009 and June 30,
2009 are incorporated herein by reference and can also be
accessed electronically on the SEC’s website at
http://www.sec.gov.
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(b)
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Pro Forma
Information.
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The information set forth in the Amended and Restated Offering
Circular in the section entitled “Capitalization of
Mercer” and “Pro-Forma Financial Information” is
incorporated herein by reference.
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Item 11.
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Additional
Information.
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(a)
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Agreements,
Regulatory Requirements and Legal Proceedings.
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The information set forth in the Amended and Restated Offering
Circular in the section entitled “Terms of the Exchange
Offer — Conditions to the Exchange Offer” is
incorporated herein by reference.
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(b)
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Other
Material Information.
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Not applicable.
The following are attached as exhibits to this Schedule TO:
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(a)(1)(i)*
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Offering Circular, dated July 13, 2009.
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(a)(1)(ii)*
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Letter of Transmittal.
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(a)(1)(iii)*
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Letter to DTC Participants.
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(a)(1)(iv)*
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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)(v)
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Amended and Restated Offering Circular, dated September 9,
2009.
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(a)(1)(vi)
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Amended and Restated Letter of Transmittal.
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(a)(1)(vii)
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Amended and Restated Letter to DTC Participants.
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(a)(1)(viii)
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Amended and Restated Letter to Clients for use by brokers,
dealers, commercial banks, trust companies and other nominees.
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(a)(5)(i)
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Press Release, dated July 13, 2009 (incorporated herein by
reference to Exhibit 99.1 to Mercer’s Current Report
on
Form 8-K
dated July 13, 2009).
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(a)(5)(ii)
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Press Release, dated August 11, 2009 (incorporated herein
by reference to Exhibit 99.1 to Mercer’s Current
Report on
Form 8-K
dated August 11, 2009).
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(a)(5)(iii)
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Press Release, dated August 25, 2009 (incorporated herein
by reference to Exhibit 99.1 to Mercer’s Current
Report on
Form 8-K
dated August 25, 2009).
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(a)(5)(iv)
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Press Release, dated September 9, 2009 (incorporated herein
by reference to Exhibit 99.1 to Mercer’s Current
Report on
Form 8-K
dated September 9, 2009).
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(b)
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Not applicable.
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(d)
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(i) Indenture dated as of October 10, 2003 between
Mercer and Wells Fargo Bank, National Association, as trustee
(incorporated by reference from Mercer’s Current Report on
Form 8-K
dated October 15, 2003).
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(d)
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(ii) First Supplemental Indenture dated as of March 1,
2006 to Indenture dated as of October 10, 2003 between
Mercer and Wells Fargo Bank, National Association, as trustee
(incorporated by reference from
Form 10-K
dated March 16, 2006).
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(d)
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(iii) Form of Indenture between Mercer and Wells Fargo
Bank, National Association, as trustee (incorporated by
reference from
Form T-3
dated July 13, 2009, as amended by Amendment No. 1 to
the
Form T-3
dated September 9, 2009).
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(d)
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(iv) Form of Warrant Agreement between Mercer and Mellon
Investor Services LLC, as warrant agent.
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(g)
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Not applicable.
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(h)
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Not applicable.
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Previously filed with the Schedule TO |
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Item 13.
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Information
Required by
Schedule 13E-3.
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(a) Not applicable.
3
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Amendment
No. 3 is true, complete and correct.
MERCER INTERNATIONAL INC.
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By:
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/s/ David
M. Gandossi
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Name: David M. Gandossi
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Title:
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Secretary, Executive Vice President and
Chief Financial Officer
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Date: September 9, 2009
4
EXHIBIT INDEX
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(a)(1)(i)*
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Offering Circular, dated July 13, 2009.
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(a)(1)(ii)*
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Letter of Transmittal.
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(a)(1)(iii)*
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Letter to DTC Participants.
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(a)(1)(iv)*
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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)(v)
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Amended and Restated Offering Circular, dated September 9,
2009.
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(a)(1)(vi)
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Amended and Restated Letter of Transmittal.
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(a)(1)(vii)
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Amended and Restated Letter to DTC Participants.
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(a)(1)(viii)
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Amended and Restated Letter to Clients for use by brokers,
dealers, commercial banks, trust companies and other nominees.
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(a)(5)(i)
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Press Release, dated July 13, 2009 (incorporated herein by
reference to Exhibit 99.1 to Mercer’s Current Report
on
Form 8-K
dated July 13, 2009).
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(a)(5)(ii)
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Press Release, dated August 11, 2009 (incorporated herein
by reference to Exhibit 99.1 to Mercer’s Current
Report on
Form 8-K
dated August 11, 2009).
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(a)(5)(iii)
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Press Release, dated August 25, 2009 (incorporated herein
by reference to Exhibit 99.1 to Mercer’s Current
Report on
Form 8-K
dated August 25, 2009).
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(a)(5)(iv)
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Press Release, dated September 9, 2009 (incorporated herein
by reference to Exhibit 99.1 to Mercer’s Current
Report on
Form 8-K
dated September 9, 2009).
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(b)
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Not applicable.
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(d)(i)
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Indenture dated as of October 10, 2003 between Mercer and
Wells Fargo Bank, National Association, as trustee (incorporated
by reference from Mercer’s Current Report on
Form 8-K
dated October 15, 2003).
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(d)(ii)
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First Supplemental Indenture dated as of March 1, 2006 to
Indenture dated as of October 10, 2003 between Mercer and
Wells Fargo Bank, National Association, as trustee (incorporated
by reference from
Form 10-K
dated March 16, 2006).
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(d)(iii)
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Form of Indenture between Mercer and Wells Fargo Bank, National
Association, as trustee (incorporated by reference from
Form T-3
dated July 13, 2009, as amended by Amendment No. 1 to
the
Form T-3
dated September 9, 2009).
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(d)(iv)
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Form of Warrant Agreement between Mercer and Mellon Investor
Services LLC, as warrant agent.
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(g)
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Not applicable.
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(h)
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Not applicable.
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Previously filed with the Schedule TO |
5