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Takeover Bid on Cimpor



ComMUNICATIONS SUBMITTED BY THE OFFEROR - Companhia Siderúrgica Nacional    

Disclosure Date  
16/02/2010 Addendum to the Prospectus for the general and voluntary takeover bid over 672,000,000 ordinary, book-entry and nominal shares with a par value of EUR 1 each, representative of the total share capital of Cimpor - Cimentos de Portugal SGPS, SA
16/02/2010   Addendum to the launch announcement of the general takeover bid over the share capital of Cimpor - Cimentos de Portugal, SGPS SA 
12/02/2010   Announcement on the review of conditions and consequent suspension of takeover bid over the shares in the capital of Cimpor - Cimentos de Portugal SGPS SA 
27/01/2010   Prospectus of General Takeover Bid on the shares representing the share capital of CIMPOR SGPS SA by CSN Cement SáRL   
27/01/2010  Launch announcement of General Takeover Bid on the shares representing the share capital of CIMPOR SGPS SA by CSN Cement SáRL  
26/01/2010 

Second addendum to the preliminary announcement of the takeover bid on the shares representing the social capital of CIMPOR, SGPS, SA, to be launched by Companhia Siderúrgica Nacional 

18/12/2009  Amendments to the preliminary announcement of the takeover bid on the shares representing the social capital of CIMPOR, SGPS, SA, to be launched by Companhia Siderúrgica Nacional
18/12/2009

Preliminary announcement of the takeover bid on the shares representing the social capital of CIMPOR, SGPS, SA, to be launched by Companhia Siderúrgica Nacional

ComMUNICATIONS SUBMITTED BY THE TARGET COMPANY   

Disclosure Date

17/02/2010

Cimpor - Cimentos de Portugal SGPS SA discloses message from the Board of Directors to shareholders on the Takeover bid by CSN. (English version)

03/02/2010 

Updated Report by CIMPOR's Board of Directors on the advantages and terms and conditions of CSN's bid  

07/01/2010 

Report by CIMPOR's Board of Directors on the timeliness and terms of CSN's offer 

CLARIFICATIONS SOUGHT BY THE CMVM    

Disclosure Date Clarification request

04/01/2010

Clarification request sought from the offeror (CSN) on the identification of the competing entities whose authorisation or approval is subject to the proviso mentioned in the preliminary announcement

APPLICATIONS SUBMITTED BY THE OFFEROR    

Disclosure Date

09/02/2010  

CSN's Application (03/02/2010):

Briefly, the offeror hereby states that:

- In a letter to the CMVM on 26 January 2010, it was conveyed that the decision to forego the possibility of withdrawing the offer pursuant to Article 128 of the Securities Code notwithstanding the actual clauses on the change of control in the financial contracts described in the registration process, was based on a couple of assumptions.

- One of these assumptions concerns the confirmation that CIMPOR fulfilled all relevant obligations envisaged in said financial contracts, including information on notifications to lender banks on the offeror's intention to acquire the control of CIMPOR or the possibility of transferring the control of CIMPOR.

- Another assumption is that these financial contracts' breakage costs are negligible.

Thus, briefly it is hereby requested that CIMPOR be asked to provide clarifications on: 

a) the fulfilment of duties to report to the lenders on the transfer of control;

b) the non-significance of breakage costs and calculation formula.

 

   

01/02/2010  

CSN's Application (29/01/2010):

Briefly, the following is hereby requested:

- Investifino rectified the information on its qualifying holdings in CIMPOR on 15th January 2010, stating that the voting rights attached to the 64,431,640 shares issued by that company and acquired by Caixa Geral de Depósitos, representing approximately 9.58% of the capital, would continue to be attributed as a result of the buy-back option that should have been conferred by CGD.

- Thus, a total of 20.26% of the voting rights of Cimpor are attributable to Investifino.

- Up to now, no rectification to the qualifying holdings of Caixa Geral de Depósitos disclosed on 18 February 2009 has been carried out. This is somewhat unclear since the existence of a buy-back agreement leads to the allocation of voting rights pursuant to Article 20/1/h) of the Securities Code.  

- Moreover, even if CMVM did not consider (inconsistent with past positions) that the buy-back agreement falls into this legal provision, on 19 February 2010 the 'Jornal de Negócios' newspaper stated that CGD has a preference right over the shares subject to said buy-back option.

- However, in accordance with the understanding restated by the CMVM, it is not only the agreements with a buy-back option but also the agreements which have pre-emptive rights agreements relating to the transfer of shares, thereby encompassing the general clause of acting in concert as set out in Article 20/1/h) of the Securities Code.

- By confirming the existence of any preference by CGD on any or all of the shares held by Investifino, the voting rights attached to all shares held by it is deemed to have been attributed to CGD

- While it is not known how this presumption may be rebutted, as the proposal announced by the CGD of an agreement entered into with Votorantim or any other entity shall be to 'promote shareholder stability in CIMPOR'.

- It is unlikely that other investors are willing to enter into a shareholder agreement with CGD in order to establish a 'core shareholder' if CGD's stake in CIMPOR is subject to any buy-back option.

- Therefore, it is requested that:

a) CGD is notified to disclose qualifying holdings (greater than 20% of the voting rights) attributable to it pursuant to the bidirectional allocation resulting from the aforementioned Article 20/1/h) of the Securities Code.  

b) CGD is requested to clarify the essential terms and conditions of the agreement with Investifino, including the abovementioned preference right.

c) The market should be informed that any conduct which may constitute an agreement to thwart the successfulness of the current takeover bid, shall single-handedly generate the allocation of voting rights held by each one to subscribers of the same, with the consequences resulting therefrom.

02/02/2010 

CMVM's Response: 
As for the attribution of voting rights in Cimpor - Cimentos de Portugal SGPS, SA to Caixa Geral de Depósitos, SA (CGD) solely as a result of contracts entered into between said entity or any other entity with which it is in a control or group relationship and Investifino - Investimentos e Participações SGPS, SA (Investifino), the Executive Board of the CMVM, in accordance with all the data and information that was made available, decided that:

1) 9.584% of the voting rights attached to the capital of CIMPOR are attributable to CGD and Investifino, pursuant to the provisions of Article 20/1, preface and Article 1/e) of the Securities Code;

2) the actual restrictions on the transfer of shares in the same terms of this particular case, in the event of Investifino exercising the call option does not correspond to concerted influence between CGD and Investifino, pursuant to Article 20/1/h), /4 and /5 of the Securities Code.

In accordance with the decisions of 1) and 2), the Executive Board of the CMVM rejected CSN's application and on the same grounds considered the applicant to be prejudiced by CGD.

Pursuant to the provisions of Article 103/1/a) of the Administrative Procedure Code, the waiver of a preliminary hearing was also decided.
 

   
14/01/2010

CSN's Application:  In sum, application requesting that CMVM adopts the necessary procedures for restoring the normal functioning of the markets which CSN considers to have been affected by the disclosure of Camargo Corrêa, S.A.'s proposal, inasmuch as it considers that among other aspects, said proposal aims to obtain the control of the company under more favourable conditions that those that would be imposed on a competing offeror, which contradicts the takeover bid framework.

16/01/2010 

CMVM's Response:  CMVM has informed CSN that it has notified Camargo Corrêa, SA on the commencement of the administrative proceeding for the purposes of ensuring that its proposed merger with Cimpor - Cimentos de Portugal, SGPS, SA conforms with the competing offers' framework, envisaged in Article 185 of the Securities Code, or withdraws it and refrains from publishing or disclosing and carrying out any acts relating thereto, in addition to the report concerning said withdrawal

 

APPLICATIONS SUBMITTED BY THE TARGET COMPANY

Disclosure Date

02/02/2010

CIMPOR's Application:
Requests that the CMVM issues an opinion on the applicability or non-applicability of the restrictions emanating from Article 182 of the Securities Code to the Board of CIMPOR.

02/02/2010 CMVM's Response:

After all the necessary steps were taken, Cimpor was informed that:

    • In this case, Article 182/1 of Securities Code is not applicable, due to the reciprocity clause to which the application is subject not being ascertained. Actually, both CSN Cement SARL, the offeror and subject to Luxembourg law and CSN, which controls it indirectly, are not subject to the same rules concerning the restrictions of the Board of Directors envisaged in Article 182/1 of Securities Code;
    • Regardless of the aforesaid restrictions not being applicable, as laid down in the previous paragraph, the Board of Directors of Cimpor is subject to the fiduciary duties envisaged in Article 181/5/d) of Securities Code, including the duty to act in good faith and behavioural loyalty. 
   
01/02/2010   CIMPOR's Application (14/01/2010):

Briefly:

- Besides the European Commission, the other competition authorities that should be notified of the transaction are not identified in the Draft Prospectus. This raises concern, since bearing in mind the global nature of the CIMPOR business and the volume of CSN business and activities, these authorities may rule on the takeover bid intended for several competition authorities.

- In addition to the requirement of notifying the European Commission, Cimpor has already ascertained the reporting requirements in Brazil, Turkey, South Africa and, with all probability, also China and Cape Verde.

- In some cases, the approval of competition authorities may constitute a prerequisite for the completeness and legal effectiveness of the Takeover bid.

- In other jurisdictions, such as Brazil, untimely notification means that the competition authority may impose a posteriori conditions or remedies (e.g. disposal of assets).

- Thus, the registration of the bid may be tainted by complex problems of illegality and invalidity.

- Even when some of the authorisations are not required for the valid and effective conclusion of the proposed transaction pursuant to the competition rules, registration and completion of the Takeover bid could affect the rights, interests and prospects of the target company's shareholders. In fact, those who decide not to sell in the bid and become a partner of CSN could be faced with the subsequent imposition of remedies or conditions which entail the sale of financial assets.

- The execution of these remedies may lead to a distortion of CIMPOR's business and is material information for the market, for those who want to decide the option versus the bid.

- Taking into consideration that this also runs counter to the objectives announced by CSN, it has increased duties of diligence in timely notifying the concentration transactions of current bid, particularly in Brazil.

Therefore, also briefly requests that the CMVM keeps Cimpor informed of the understandings that may be adopted and that copies of all notifications that have already been carried out or are to be carried out by CSN or the offeror are readily available. 

01/02/2010  CMVM's Response (25/01/2010):

 

In the absence of achieving this in the preliminary announcement, on 30 December 2009 the CMVM notified the offeror to:

- Disclose the list of competition authorities to which notification is required for the acquisition of CIMPOR;

- Justify the subjection of CIMPOR's acquisition to the control of various competition authorities;

- Disclose the time period for the respective authorities to issue a statement of opinion on the reports in accordance with the laws of those jurisdictions;

- Identify the effect, also pursuant to those jurisdictions, of the acquisition pending the decision of the competent authority and in the event of the respective authority ruling unfavourably.

This is information that was already requested by the CMVM in previous bids, namely, to monitor the imposition of conditions in contracts that lead to the allocation of voting rights that exceed the limits beyond which it becomes mandatory to launch a public offer.

In this particular bid, the CMVM's request is directed at requiring the offeror to submit the general condition established in the preliminary announcement with regard to administrative authorisations and approvals.

The offeror informed the CMVM and the market that it is already able to disclose its position on this issue, awaiting publication of an addendum to the preliminary announcement at any time soon.

CMVM Understandings are already disclosed to the market. On 17 July 2006, the CMVM specifically issued a clarification on competing bids wherein it stated that it can only register bids that are 'accompanied with all the legally required documents and administrative authorisations. These include the decision(s) of the competent competition authority(ies), pursuant to Competition law (Law No. 18/2003 of 11 June and Regulations (EC) No. 139/2004 and No. 802/2004)'.

This viewpoint assumes that the offeror has not availed of the option granted by Article 7/2 of Regulation No. 139/2004 of 20 January and Article 11/3 of the Competition Law and that therefore the transaction is suspended.

The process should be accompanied by copies of the relevant notifications according to that understanding, which will be available to an applicant if attached to the process. 

   
01/02/2010  CIMPOR's Application (13/01/2010):
In light of some news reports that is deemed to be based on statements issued by CSN, and aimed at ensuring the quality, equity and timeliness of information provided on the Takeover bid to shareholders and the market, hereby requires, briefly, that the CMVM notifies the CSN and offeror to refrain from disclosing information relating to the bid in breach of the applicable rules and inform the target company of the measures taken for this purpose. 
01/02/2010  CMVM's Response (25/01/2010): 
The CMVM has urged the directly and indirectly involved parties and the offeror, in particular, for the need of greater restraint during the various stages of the bid. In fact, the documents required and regulated by law should be the prime means of disclosing information relating to the bid.

The use of explicit and formal notification is not the only means of ensuring the quality of information. However, as propounded by the applicant, the CMVM shall not hesitate in using same when that is appropriate and proportionate thereto. 
   


29/01/2010


CIMPOR's Application  (15/01/2010)

In sum, Cimpor requested the following:

- that the applications and other information that the target company has transmitted to the CMVM be withheld from disclosure on the CMVM's site or any other site or further yet, on any independent location created for that purpose and which is not required by Law to be openly disclosed.

- Alternatively and whenever not granted, it is deemed that at least said disclosure of the application by CIMPOR will have to be (i) enclosed with the CMVM's responses and, (ii) if Cimpor previously authorises its entire or partial disclosure due to reasons of market information.


29/01/2010 


CMVM's Response: 
 

As regards the open disclosure of the applications of the target company, the CMVM informs that:

a)  The CMVM will continue to disclose such information on its site (www.cmvm.pt) as it refers solely to informative summaries drawn up by the CMVM of the applications and other data for the purposes of administrative procedure of the Takeover Bid and said disclosure is material for the market;

b)  Thus, said disclosure does not oppose the rules of the Administrative Procedure Code, particularly those on the General Procedure Principles and Right of the Interested Parties to Information and to its bounds (Articles 51 et ss 61 et ss of the Administrative Procedure Code);

c)  The disclosure of said information within the mentioned terms, is carried out pursuant to the CMVM's supervisory powers, namely those envisaged in Articles 360/1/g and 361/1 of the Securities Code for ensuring the effectiveness of the principles mentioned in Article 358 of same Code, namely as regards investors' protection, efficiency and regularity of the functioning of the financial instruments' markets and information control.


29/01/2010  


CIMPOR's Application  (13/01/2010)


In sum, confirmation at to Cimpor's understanding that:

i) Should the offer document drafts be revised (received by Cimpor for the drawing up of the target company's report), whether it be made  prior to the final registration requested by the offeror or at the time of the final request, Cimpor's Board of Directors are entitled, insofar as such action be deemed necessary for complying with its information duties, to disclose an updated report, pursuant to and for the purposes of the first part of Article 181/1 of the Securities Code regarding new aspects/significant amendments as to the initial draft version of the offer documents;

ii) Insofar as the updated report would cover new aspects and/or significant amendment, particularly those related to matters that have been unduly handled in the offer document draft, would be entitled to 8 days to make its opinion known on said aspects/amendments and its impact on the terms and timeliness of the offer;

iii)  In the case of addendum to the prospectus that has already been approved (different situation to the previously mentioned), Cimpor's Board of Directors shall publish a new updated report with a five day period as from the addendum (second part of the Article 181/1).   

29/01/2010  

CMVM's Response sent with the notification of the offer application (at the time when the prospectus has already been approved):

In view of the request as to the deadline for Cimpor's Board of Directors to, if willing, update its report apropos the final version of the prospectus and taking into account that this is neither a question of an addendum to the prospectus nor a draft of the new prospectus, Article 181/1 of the Securities Code is not applicable and the deadline for said update is set for 3 February.

Other APPLICATIONS

Disclosure Date

02/02/2010

Caixa Geral de Depósitos' Application:
Formally requests the CMVM to confirm that the voting rights attached to Cimpor shares that are held or assigned to Investifino are not attributable to Caixa Geral de Depósitos.

02/02/2010

CMVM's Response:

For the attribution of the voting rights in Cimpor - Cimentos de Portugal SGPS SA to Caixa Geral de Depósitos SA (CGD), solely as a result of agreements entered into by said entity or any other entity with which it is in a control or group relationship and Investifino - Investimentos e Participações SGPS SA(Investifino), the Executive Board of the CMVM ruled, in accordance with all the data and information that was made available:

1)  that 9.584% of the voting rights tantamount to the share capital of CIMPOR are attributable to CGD and Investifino, pursuant to the provisions of Article 20/1, preface and /1/e) of the Securities Code;

2)  that the actual restrictions on the transfer of shares in the same terms of this particular case, in the event of Investifino carrying out the call option which it holds, does not represent concerted influence between CGD and Investifino, pursuant to Article 20/1/h) and /4 and /5 of the Securities Code.

According to the decision of 1) and 2), the Executive  Board of the CMVM rejected CSN's application and considered the application to be compromised by CGD on the same grounds.