Press release regarding Orco Property Group S.A.
Press release 17/08
1. Purpose and context
The present press release refers to an investigation carried out by the CSSF in relation to the potential existence of an undisclosed concert action with respect to Orco Property Group S.A.¹(“OPG”) that would be in breach of the Law of 19 May 2006 transposing Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (the “Takeover Law”).
The purpose of this press release is to inform third parties whose own rights and interests may be affected by the decisions that the CSSF intends to take in the context of the aforementioned investigation (the “Contemplated Decisions”):
(i) the CSSF intends to declare the existence of an undisclosed concert action with respect to OPG in breach of Article 3 (a) and (d) and Article 5(1) and (3) of the Takeover Law on the basis of the findings of the investigation; and
(ii) the CSSF consequently intends not to approve the offer document in the mandatory bid (the “Mandatory Takeover Offer”) announced on 8 June 2016 by CPI Property Group SA² (“CPI Property Group”) on behalf of its wholly owned subsidiary Nukasso Holdings Limited³ (“Nukasso”) for all the shares of OPG (ISIN: LU0122624777) on the basis of the aforementioned breaches of Article 3(a) and (d) and Article 5(1) and (3) of the Takeover Law and the provisions of Article 13(a) of the Takeover Law
It shall be noted that the Contemplated Decisions are not final, meaning that they have not yet been taken by the CSSF. In accordance with Luxembourg administrative law, the presumed concert parties and third parties whose rights and interests may be affected have the right to submit their observations to the CSSF until 31 March 2017 before the CSSF takes any final decision.
2. Undisclosed Concert Action with respect to OPG under the Takeover Law
The CSSF has conducted an investigation relating to a potential undisclosed concert action with respect to OPG (the “Investigation”) between certain persons (each a “Concert Party” and together the “Concert Parties”) as detailed in the corresponding investigation report. The Investigation covers the period from 1 September 2012 to 30 June 2016 (the “Period Under Investigation”). Each of the Concert Parties sold the OPG shares directly or indirectly held by it on or around 8 June 2016 to Nukasso at a price or implied value per OPG share of EUR 0.28/share, which triggered the latter’s obligation to launch the Mandatory Takeover Offer over the shares of OPG.
2.1 Main Concert Parties
The Investigation concludes that the main shareholder (the “Shareholder 1”), acting directly and indirectly, together with the founding shareholder of OPG (the “Shareholder 2”) were persons secretly acting in concert with respect to OPG within the meaning of Article 2, paragraph 1, subparagraph (d) of the Takeover Law during the Period Under Investigation.
According to the Investigation and, as a result of the aggregation of the holdings in OPG shares of Shareholder 1 with the holdings of OPG shares held by Shareholder 2, Shareholder 1 acquired the control over OPG within the meaning of Article 5(3) of the Takeover Law on 10 and 11 January 2013 but failed in that context to comply with his obligation to launch a mandatory takeover bid over OPG as required by Article 5(1) of the same law.
The conclusions of the Investigation as regards the existence of an undisclosed concert action between Shareholder 1 and Shareholder 2 as main concert parties are based on a body of serious, precise and consistent elements (faisceau d’indices graves, précis et concordants).
2.2 Secondary Concert Parties
The Investigation also concludes on the basis of a body of serious, precise and consistent elements (faisceau d’indices graves, précis et concordants) that various other legal persons and their beneficial owners acted as secondary concert parties during the Period Under Investigation in order to facilitate and/or further strengthen the acquisition of control by Shareholder 1 over OPG.
3. Impact on Mandatory Takeover Offer
The CSSF has the intention not to approve the offer document in the context of the Mandatory Takeover Offer which, as a result of the pre-existing control of Shareholder 1 over OPG since 10 and 11 January 2013 and based upon the violations of Article 3(a) and (d), Article 5(1) and (3) and the provisions of Article 13(a) of the Takeover Law, should be considered as null and void.
4. Suspension from trading
The CSSF has required, in accordance with Article 31 of the Law of 13 July 2007 on markets in financial instruments, the suspension of the OPG shares from trading on the regulated market of the Luxembourg Stock Exchange until the time a definitive decision by the CSSF on this concert action related matter is adopted. The OPG shares were already subject to a suspension on the regulated market of the Luxembourg Stock Exchange based upon a decision of the Luxembourg Stock Exchange dated 9 June 2016, which is superseded and replaced by this CSSF decision to suspend the OPG shares from trading.
5. Practical information for third parties
This press release is made pursuant to inter alia, Article 5 of the Grand-ducal Regulation of 8 June 1979 (“règlement grand-ducal du 8 juin 1979 relatif à la procédure à suivre par les administrations relevant de l’Etat et des communes”). Third parties whose rights and interests may be affected by Contemplated Decisions can submit their observations to the CSSF by writing to the following address: firstname.lastname@example.org and/or by certified mail with acknowledgement of receipt. When submitting observations to the CSSF, third parties are invited to specify the capacity in which the observations are submitted and to join documentary evidence of their identity and, as the case may be, of the OPG financial instruments held by them. In case of legal persons, satisfactory documentary evidence of the existence of the legal person in question and of the identity and the powers the persons allowed to represent it should also be included.
Observations may be provided by third parties to the CSSF until 31 March 2017.
¹ Orco Property Group is a public limited liability company (société anonyme) incorporated under the laws of the Grand Duchy of Luxembourg with its registered office at 40, rue de la Vallée, L-2661 Luxembourg and registered in Luxembourg under B44996.
² CPI Property Group is a public limited company (société anonyme) incorporated under the laws of the Grand Duchy of Luxembourg with its registered office at 40, rue de la Vallée, L-2661 Luxembourg and registered in Luxembourg under B102254.
³ Nukasso Holdings Limited is a limited liability company incorporated under the laws of Cyprus with its registered office at Akropolis, 59-61, 3rd floor, Flat/office 301, Strovolos, 2012, Nicosia, Cyprus and registered in Cyprus under HE 350294.