Press release 17/40
1. Purpose and Context
This press release follows the CSSF Press Release 17/08 dated 16 February 2017 whereby the CSSF informed interested third parties of its intention to take certain decisions (the “Contemplated Decisions”) regarding Orco Property Group S.A. (“OPG”) within the context of an investigation carried out by the CSSF in relation to the potential existence of an undisclosed concert action with respect to OPG 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 thereby of the following decisions that the CSSF has taken in this matter (the “CSSF Decisions”):
(i) The CSSF has found 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 as further described under point 2. below (the “First CSSF Decision”); and
(ii) As a consequence of the First CSSF Decision, the CSSF has decided not to approve the offer document in the mandatory bid (the “Mandatory Takeover Offer”) announced on 8 June 2016 by CPI Property Group SA (“CPI Property Group”) on behalf of its wholly owned subsidiary Nukasso Holdings Limited (“Nukasso”) for all the shares of OPG (ISIN: LU0122624777) as further described under point 3. below (the “Second CSSF Decision”).
The CSSF Decisions have been taken on the basis of an investigation report dated 19 January 2017 relating to the existence of an undisclosed concert action with respect to OPG between certain concert parties and covering the period from 1 September 2012 until 30 June 2016. Before the CSSF Decisions were taken, each concert party had the possibility to submit its observations on, or in relation to, the Contemplated Decisions, including the investigation report, which was communicated to the concert parties together with the annexes thereto, and all concert parties have done so to varying degrees and on various procedural and substantive grounds. Following the aforementioned CSSF Press Release 17/08 dated 16 February 2017, interested third parties also had the possibility to submit their observations to the CSSF in relation to the Contemplated Decisions. The CSSF has received observations from over forty third parties. Following the analysis of the observations submitted by the concert parties and by third parties, the CSSF has considered that the investigation report dated 19 January 2017 did not need to be changed in material respects.
It should be noted that the CSSF Decisions are final. They may, however, be challenged before the Luxembourg administrative courts within a period of three months in accordance with applicable provisions of Luxembourg law.
2. Undisclosed Concert Action with respect to OPG under the Takeover Law
2.1. Main Concert Parties
The First CSSF Decision finds the existence of an undisclosed concert action between Mr. Radovan Vitek acting directly and indirectly (in particular through Crestline Ventures Corp. and Gamala Limited, CPI Property Group S.A. (“CPIPG”) and Nukasso Holdings Limited (“Nukasso”) and Mr. Jean-François Ott (as sole shareholder of Stationway Properties Limited and incidentally in his functions as CEO and chairman of OPG’s board of directors until his respective removal and resignation from these positions on 18 March 2014 and 27 March 2014) as main concert parties 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 investigation report, which covers the period from 1 September 2012 to 30 June 2016. The CSSF considers that, as a result of the aggregation of the holdings of OPG shares by Mr. Radovan Vitek with the holdings of OPG shares by Mr. Jean-François Ott, the former acquired 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 for the shares of OPG as required by Article 5(1) of the same law.
2.2. Secondary Concert Parties
The First CSSF Decision furthermore finds that the undisclosed concert action mentioned above and creeping acquisition of control related manoeuvers over OPG also involved certain secondary concert parties, including the beneficial owners of three legal entities incorporated in Cyprus which notably acquired OPG shares prior to the general meeting of OPG of 6 January 2014 which led to the removal with immediate effect of certain OPG directors and the beneficial owners of three other legal entities incorporated in Cyprus and in the British Virgin Islands that were acquired by Nukasso ahead of its announced Mandatory Takeover Offer over OPG.
3. Impact on Mandatory Takeover Offer
By the Second CSSF Decision, and as a consequence of the First Decision, the CSSF has decided not to approve the offer document in the context of the Mandatory Takeover Offer which, as a result of the pre-existing control over OPG of Mr. Radovan Vitek acting in concert with Mr. Jean-François Ott since 10 and 11 January 2013 and based upon the violations of Article 3(a) and (d) and Article 5(1) and (3) of the Takeover Law should be considered as null and void in accordance with the provisions of Article 13(a) of the Takeover Law.
4. Suspension from Trading
The OPG shares have been suspended from trading on the regulated market of the Luxembourg Stock Exchange based upon a decision of the Luxembourg Stock Exchange dated 9 June 2016, which has been superseded and replaced by a decision of the CSSF dated 16 February 2017.
The CSSF considers that the suspension from trading on the regulated market of the Luxembourg Stock Exchange can be lifted with effect as from 15 December 2017. Consequently, trading in OPG shares on the regulated market of the Luxembourg Stock Exchange can resume on 15 December 2017 (subject to any further decisions of the CSSF and/or of the Luxembourg Stock Exchange that may be necessary in the future and of which the public will be informed by CSSF press release and/or by stock exchange notice).
5. Practical Information for Third Parties
Third parties whose rights and interests may be affected by the above CSSF Decisions and who wish to receive legal advice are invited to consult with their lawyer.
Communications to the CSSF can be sent electronically to: email@example.com.