As furnished to the Securities and Exchange Commission on November 15, 2002.
File No. 333-12860
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON DC 20549
FORM 6-K
REPORT OF FOREIGN ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 of
THE SECURITIES EXCHANGE ACT OF 1934
For the month of November 2002
________________________
iesy Hessen GmbH
(formerly known as eKabel Hessen GmbH)
(Exact Name of Registrant as Specified in its Charter)
Kleyerstrasse 88
D-60326 Frankfurt am Main
Germany
(Address of principal executive offices)
________________________
Indicate by check mark whether the registrant files or will file annual
reports under cover of Form 20-F or Form 40-F.
Form 20-F ____X_____ Form 40-F__________
Indicate by check mark whether by furnishing the information in this Form,
the registrant is also thereby furnishing the information to the Commission
pursuant to Rule 12g3-2(b) under the Securities Exchange Act 1934.
Yes__________ No____X______
If "Yes" is marked, indicate below the file number assigned to the
registrant in connection with Rule 12g3-2(b): 82-__________
Re: Announcement regarding a third party proposal for the equitization of
the Senior Notes of iesy Hessen GmbH and other matters.
iesy Financial Restructuring
Overview
iesy Hessen GmbH (the "Company" and together with its
subsidiaries, "iesy") has been in discussions with an informal committee
(the "Committee") of certain holders of the 14.5% Senior Dollar Notes and
the 14.5% Senior Euro Notes issued by the Company (collectively, the
"Notes") in connection with a possible financial restructuring of iesy (the
"iesy Restructuring"). To facilitate discussions with the Committee, the
Company employed John Gregg to fill the position of Chief Restructuring
Officer. As previously disclosed, the Company has retained Jefferies &
Company, Inc. to advise it in the restructuring of its capital structure
and evaluating its strategic alternatives.
iesy Restructuring Proposal from the Committee
The negotiations with the Committee and its advisors, which
preliminarily commenced in May 2002 and have been extensive in September
and October 2002, have culminated in a restructuring proposal from the
Committee. The restructuring proposal from the Committee takes the form of
a Support Agreement with attached exhibits (collectively, the "Transaction
Documents"). The Transaction Documents contemplate that the iesy
Restructuring would take place below the Company level. Under certain
circumstances, the iesy Restructuring would involve either the (1) issuance
of new equity interests of a subsidiary of the Company or (2) transfer by
the Company of all or a portion of its equity interests of iesy Hessen
Finanz GmbH & Co. KG to an entity controlled by the Committee, in each case
in exchange for the cancellation of the Notes. The newly restructured iesy
entity is referred to herein as "New iesy". The Transaction Documents
provide that the Committee retains sole discretion of the structure,
timing, terms and conditions of the iesy Restructuring.
Valuation Analysis
On October 29, 2002, the Company retained a valuation expert to
conduct a valuation analysis of the Company, as a legal entity, in light of
the Company's current assets, liabilities, cash flow, access to capital,
operations, results of operations and business. The Company cannot provide
assurances or predictions of the outcome of this valuation analysis,
including whether the Company currently is overindebted or may become so in
the future. Under German law, if a company is determined to be overindebted
or illiquid, it must file insolvency proceedings within three weeks unless
such overindebtedness or illiquidity is cured. The Support Agreement
provides that it will remain in full force and effect notwithstanding the
commencement or continuation of a bankruptcy or insolvency proceeding by or
against iesy, except as set forth below in the section titled
"Termination".
Terms and Conditions of the Support Agreement
Parties
The parties to the Support Agreement initially are comprised of
the members of the Committee, the direct and indirect equity holders of
eKabel L.P. ("eKabel"), which holds 65% of the common equity of the
Company, and certain individuals associated with iesy. The parties to the
Support Agreement other than the members of the Committee are referred to
herein as the "Participating Parties". At this time, none of iesy Holdings
GmbH, the parent of the Company, or its subsidiaries, including the
Company, are parties to the Support Agreement, however the Support
Agreement permits them to become parties at any time. In addition, holders
of Notes who are not members of the Committee are permitted to become
parties to the Support Agreement at any time.
Timing
The Support Agreement is expected to become effective on or about
November 20, 2002. The transactions contemplated by the Support Agreement
are expected to be consummated prior to December 31, 2002, although there
can be no assurance of the specific timing of the consummation of these
transactions, if ever.
Cash Facilitation Fee
If the iesy Restructuring is completed as contemplated by the
Support Agreement, the parties to the Support Agreement who are the
"ultimate beneficial owners" of interests in eKabel will receive their pro
rata portion of a maximum $2.6 million cash facilitation fee, less their
pro rata share of expenses incurred at the eKabel partnership level, for
their cooperation in the iesy Restructuring (not in respect of their equity
stake in iesy). Deutsche Telekom AG, which holds 35% of the common equity
of the Company and is not a party to the Support Agreement, is entitled to
a cash facilitation fee of $1.4 million in the event the current commercial
arrangements among iesy and Deutsche Telekom AG are restructured on terms
satisfactory to the Committee. The cash facilitation fee payments will be
made by New iesy on the completion date of the iesy Restructuring.
The payment of the cash facilitation fee under the Support
Agreement is subject to various conditions precedent, the two most
significant of which are that the bank credit facility of iesy must be
amended on terms satisfactory to the Committee and the commercial
arrangements among iesy and Deutsche Telekom AG must be restructured on
terms satisfactory to the Committee.
Obligations of the Participating Parties under the Support Agreement
The Support Agreement requires the Participating Parties, prior to
the earlier of the iesy Restructuring completion date and the termination
of the Support Agreement, to among other matters and subject to certain
conditions:
o not transfer their interests in eKabel;
o not take any action that could impede or delay the iesy
Restructuring;
o provide information to the Committee that may assist the Committee
in the iesy Restructuring;
o terminate existing agreements with iesy and waive any future
payments under such agreements, except as approved by the
Committee;
o use their commercially reasonable efforts to cause iesy to operate
its businesses in accordance with the iesy business plan agreed
previously between iesy and the Committee; and
o cause the transfer of the direct equity interests in iesy Hessen
Finanz GmbH & Co. KG, iesy Hessen GmbH & Co. KG and their
respective general partners held by eKabel to an entity designated
by the Committee.
Termination
The Support Agreement may terminate, if among other matters, the
iesy Restructuring is not completed on or prior to March 31, 2003 or if an
insolvency proceeding is filed by or against any of the iesy companies and
an insolvency administrator (1) refuses in writing to approve or consent to
the iesy Restructuring as contemplated by the Support Agreement or (2)
takes affirmative action to offer or effect the sale of any assets of iesy.
Release Agreement
The Support Agreement provides that iesy and the parties to the
Support Agreement will enter into a release and covenant not to sue
agreement with respect to iesy, the iesy Restructuring and related matters.
The release and covenant not to sue agreement contemplates that, among
other matters, the parties will provide cross releases and the members of
the Committee will dismiss with prejudice all litigation against the other
parties relating to iesy, the iesy Restructuring and related matters.
The release and covenant not to sue agreement will become
effective on the earlier of: (1)(a) the date a release is provided to
Deutsche Telekom AG and its associated entities, (b) eKabel transfers its
direct equity interests in iesy Hessen Finanz GmbH & Co. KG, iesy Hessen
GmbH & Co. KG and their respective general partners to an entity designated
by the Committee, and (c) the parties to the Support Agreement (other than
the Committee members) and Deutsche Telekom AG and its associated entities
have taken all actions reasonably requested by the Committee necessary to
consummate the iesy Restructuring; and (2) the completion date of the iesy
Restructuring.
The members of the Committee have agreed under the terms of the
Support Agreement that on the effective date of the Support Agreement and
until the earlier of the effectiveness of the Release Agreement and the
termination of the Support Agreement, not to pursue or facilitate possible
litigation relating to iesy, the iesy Restructuring and related matters for
the benefit of the parties to the Support Agreement (other than the
Committee members).
Safe Harbor Statement Under the Private Securities Litigation Reform Act of 1995
This Form 6-K includes, as well as information included in oral statements
or other written statements made or to be made by the Company, statements
which, in the opinion of the Company, may constitute "forward looking
statements" within the meaning of the Private Securities Litigation Reform
Act of 1995 in the United States. Such forward-looking statements involve
known and unknown risks, uncertainties and other factors that may cause the
actual results, performance or achievements of the Company, or industry
results, to be materially different from those contemplated, projected,
forecasted, estimated, or budgeted, whether expressed or implied, by such
forward-looking statements. These risks and uncertainties include, but are
not limited to: the inability to complete the financial restructuring of
the Company in a timely manner, if at all; the Committee retaining sole
discretion of the structure, timing, terms and conditions of the iesy
Restructuring; the impact of the iesy Restructuring on the business,
finances, operations, results of operations and prospects of iesy; the
outcome of the valuation analysis currently being undertaken and actions
that may need to be taken in connection therewith; the likelihood that the
conditions precedent to the consummation of the transactions contemplated
by the Support Agreement will be satisfied or waived on a timely basis, if
ever; the ability of the Company to market its existing and planned
services to current and new customers; delays in the timing of the
development and launch of the Company's planned services; unfavorable
market pricing conditions for the Company's existing and planned services
and for competing services; increased competition; the impact of new
business opportunities requiring significant up-front investment; interest
rate and currency exchange rate fluctuations; and adverse trends in
regulatory, legislative, and judicial developments. Consequently, all the
forward-looking statements contained in this Form 6-K are qualified by the
information contained herein, the information contained in the Company's
Form 6-K for the month of August 2002 under the heading "Information
Regarding Forward-Looking Statements" and by the material set forth under
the headings "Business" and "Risk Factors" in the Company's Form 20-F filed
on May 31, 2002, as amended on June 14, 2002, and any other documents
within the public domain. The Company is under no obligation to publicly
release any revision or update to any forward-looking statement contained
herein to reflect actual results, future events or uncertainties, changes
in assumptions or changes in factors affecting such statements.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
iesy Hessen GmbH
Date: November 15, 2002 By: /s/ Bruno Claude
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Bruno Claude
Chief Executive Officer
Date: November 15, 2002 By: /s/ John Gregg
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John Gregg
Managing Director
Date: November 15, 2002 By: /s/ Otto Rathsman
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Otto Rathsman
Chief Financial Officer and Prokurist