SAO PAULO, April 17, 2014 /PRNewswire/ --
THIS ANNOUNCEMENT DOES NOT CONSTITUTE AN OFFER TO BUY OR THE SOLICITATION OF AN OFFER TO SELL THE NOTES DESCRIBED HEREIN. THE CONSENT SOLICITATION STATEMENT DESCRIBED HEREIN DOES NOT CONSTITUTE AN INVITATION TO PARTICIPATE IN THE SOLICITATION IN OR FROM ANY JURISDICTION IN OR FROM WHICH, OR TO OR FROM ANY PERSON TO OR FROM WHOM, IT IS UNLAWFUL TO MAKE SUCH INVITATION UNDER APPLICABLE SECURITIES LAWS. THE DISTRIBUTION OF THE CONSENT SOLICITATION STATEMENT IN CERTAIN JURISDICTIONS MAY BE RESTRICTED BY LAW.
Banco Industrial e Comercial S.A.
(incorporated as a sociedade por acoes under the laws of the Federative Republic of Brazil)
Solicitation of consents relating to the
US$400,000,000 5.25 per cent. Notes due 2015 (the "Notes")
issued under a US$1,000,000,000 Euro Medium-Term Note Programme
Rule 144A Notes: US05961HAE80 (ISIN) / 05961HAE8 (CUSIP)
Regulation S Notes: XS0552649021
Banco Industrial e Comercial S.A. (the "Bank") announced today that it is soliciting the consents of the holders of the Notes ("Consents" and each a "Consent") to amend the terms and conditions of the Notes (the "Terms and Conditions") under the Amended and Restated Fiscal Agency Agreement, dated 6 October 2010 as supplemented or amended to the date hereof, (the "Agency Agreement"), by and between, inter alios, the Bank (as issuer of the Notes), The Bank of New York Mellon Trust (Japan), Ltd. (as disbursement agent), The Bank of New York Mellon, London Branch (as "Fiscal Agent", "London Transfer Agent" and "Calculation Agent"), The Bank of New York Mellon, New York Branch (as "Registrar", "Exchange Agent" and "New York Transfer Agent") and The Bank of New York Mellon (Luxembourg) S.A. (as paying agent in Luxembourg) (together the "Agents") upon the terms and subject to the conditions set forth in the Consent Solicitation Statement dated 17 April 2014 (the "Consent Solicitation Statement") prepared by the Bank and subject to the distribution restrictions set out below and as more fully described in the Consent Solicitation Statement. The Solicitation Agent is Citigroup Global Markets Inc. The solicitation is referred to herein as the "Consent Solicitation". Capitalized terms not defined herein shall have the meanings assigned to them in the Consent Solicitation Statement.
Copies of the Consent Solicitation Statement are (subject to distribution restrictions) available from the Solicitation Agent as set out below.
Rationale for the Consent Solicitation and Proposed Amendment
The purpose of the Consent Solicitation is to obtain the consent of the holders of the Notes (the "Noteholders") at a duly convened meeting of the Noteholders (the "Meeting") to vary Condition 6(g) (Repurchase at the Option of the Noteholders – Change of Control) of the Terms and Conditions by passing an extraordinary resolution amending the definition of "Change of Control" so as to designate CCB as the controlling shareholder of the Bank following the acquisition of control of the Bank by China Construction Bank Corporation ("CCB") (the "Proposed Amendment"). Upon becoming effective, the Proposed Amendment would ensure that no change of control put right would be triggered under Condition 6(g) of the Notes following the acquisition of control of the Bank by CCB.
Meeting and Extraordinary Resolution
Notice (the "Notice") convening the Meeting to be held at 11.00 a.m. (GMT) on 9 May 2014 at the offices of Hogan Lovells International LLP, Atlantic House, Holborn Viaduct, London EC1A 2FG, United Kingdom, has been given to Noteholders in accordance with the Terms and Conditions on the date of the Consent Solicitation Statement. At the Meeting, Noteholders will be invited to consider and, if thought fit, pass an extraordinary resolution (the "Extraordinary Resolution") to approve the implementation of the Proposed Amendment as more fully described in the Notice.
The quorum required for the Meeting is two or more persons present holding voting certificates or being proxies and holding or representing in the aggregate not less than 50 per cent. in nominal amount of the Notes for the time being outstanding. To be passed, the Extraordinary Resolution requires a majority consisting of not less than 75 per cent. of the votes cast at the Meeting. If passed, the Extraordinary Resolution shall be binding on all Noteholders, whether present or not at the Meeting and whether or not voting. The implementation of the Extraordinary Resolution, if passed, is conditional on the Bank not having previously terminated the Consent Solicitation in accordance with the provisions for such termination set out in the Consent Solicitation Statement.
The parties to the Agency Agreement have agreed that, subject to and as soon as practicable following the passing of the Extraordinary Resolution, and in compliance with the conditions contained in the Agency Agreement, they will execute and deliver a supplemental Fiscal Agency Agreement (the "Supplemental Fiscal Agency Agreement") giving effect to the Proposed Amendment. The Bank will make a public announcement of the execution of the Supplemental Fiscal Agency Agreement at or prior to 5:00 p.m., Sao Paulo time, on the next business day after the Extraordinary Resolution is duly passed.
The Bank will pay to each Noteholder from whom a valid Electronic Instruction (as defined in the Consent Solicitation Statement) in favour of the Extraordinary Resolution is received by the Tabulation Agent by the Expiration Time US$1.25 for each US$1,000 principal amount of Notes (the "Consent Fee"), subject to (i) such Electronic Instruction not being revoked (in the limited circumstances in which such revocation is permitted), (ii) the Extraordinary Resolution being duly passed and (iii) the Bank not having terminated the Consent Solicitation in accordance with the provisions for such termination set out in the Consent Solicitation Statement. Where payable, the Bank will pay the Consent Fee in respect of the Notes no later than the third business day following the Effective Date (the "Payment Date").
To be eligible to receive the Consent Fee, Noteholders who submit an Electronic Instruction must not attend, or seek to attend, the Meeting in person or make any other arrangements to be represented at the Meeting (other than by way of their Electronic Instruction). Any such Noteholder that separately seeks to appoint a proxy to vote at the Meeting on its behalf or attend the Meeting in person or makes other arrangements to be represented at the Meeting (other than by way of its Electronic Instruction) will not be eligible for the Consent Fee, irrespective of whether such Noteholder has delivered an Electronic Instruction or such other arrangements are made by the Expiration Time.
Only Noteholders who deliver, or arrange to have delivered on their behalf, a valid Electronic Instruction in favour of the Extraordinary Resolution by the Expiration Time (which are not subsequently revoked, in the limited circumstances in which such revocation is permitted) will be eligible to receive the Consent Fee. Noteholders may choose to attend and vote at the Meeting in person or to make other arrangements to be represented or to vote at the Meeting in accordance with the provisions for meetings of Noteholders set out in Schedule 7 to the Agency Agreement (the "Meeting Provisions") without submitting an Electronic Instruction in favour of the Extraordinary Resolution. However, such Noteholders will not be eligible to receive the Consent Fee.
Submitting an Electronic Instruction
By submitting an Electronic Instruction, Noteholders will instruct the Agent to appoint one or more representatives of the Tabulation Agent as their proxy to attend the Meeting and vote in the manner specified or identified in the Electronic Instruction in respect of the Extraordinary Resolution. It will not be possible to submit an Electronic Instruction without at the same time giving such instructions to the Agent. Electronic Instructions must be validly submitted in favour of the Extraordinary Resolution and by the Expiration Time (and not subsequently revoked, in the limited circumstances in which such revocation is permitted), in order for a Noteholder to be eligible to receive the Consent Fee.
The foregoing does not affect the rights of Noteholders to attend and vote at the Meeting in person or to make other arrangements to be represented or to vote at the Meeting in accordance with the relevant Meeting Provisions. Noteholders who wish to attend the Meeting notwithstanding the fact that they would thereby be ineligible to receive the Consent Fee should refer to the Consent Solicitation Statement for further details of the process for attending, being represented and voting at the Meeting other than pursuant to Electronic Instructions.
It is a term of the Consent Solicitation that Electronic Instructions in favour of the Extraordinary Resolution shall be irrevocable (save in certain limited circumstances as provided in the Consent Solicitation Statement).
Blocking of Notes
When considering whether to participate in the Consent Solicitation, Noteholders should take into account that restrictions on the transfer of the Notes will apply from the time of submission of Consents. With respect to Noteholders that hold Notes through either Euroclear Bank SA/NV ("Euroclear") or Clearstream Banking, societe anonyme ("Clearstream, Luxembourg"), a Noteholder will, on submitting an Electronic Instruction, agree that its Notes will be blocked from the date on which the Electronic Consent Instruction is submitted until the earliest of (i) the date (if any) on which, in accordance with the terms of the Consent Solicitation, the Electronic Instruction is revoked, (ii) the Payment Date and (iii) the date of any termination of the Consent Solicitation. Noteholders that hold their Notes through The Depository Trust Company ("DTC" and, together with Euroclear and Clearstream, Luxembourg, the "Clearing Systems" and each a "Clearing System") will, on submitting an electronic Consent in accordance with DTC's Automated Tender Offer Program, transfer the relevant principal amount of Existing Notes to an account of the Tabulation Agent and therefore will not be able to transfer such Existing Notes until the earlier of (i) the Payment Date; (ii) the date on which the DTC Participant (as defined in the Consent Solicitation Statement) delivers a properly formatted and transmitted withdrawal request to the Tabulation Agent, withdrawing a Consent up to and including the Expiration Time; and (iii) 45 calendar days from the date hereof.
The following table sets out the expected dates and times of the key events relating to the Consent Solicitation. This is an indicative timetable and is subject to change.
Date and Time
Thursday, 17 April 2014 at or about 8:00 a.m. (London time), following submission of this Consent Solicitation Statement to the Clearing Systems
Commencement of the period during which Noteholders can participate in the Consent Solicitation by delivering Electronic Instructions in respect of the Consent Solicitation.
Electronic Instructions delivered by Noteholders will be irrevocable (except in either case in the limited circumstances, and pursuant to the procedures, described in the Consent Solicitation Statement).
The submission of an Electronic Instruction by the Final Voting Deadline by a Noteholder will automatically appoint the Tabulation Agent or its nominee as the Noteholder's proxy to attend the Meeting (and any adjournment of the Meeting) and to vote in favour of the Extraordinary Resolution in respect of the Notes that are the subject of the relevant Electronic Instruction.
Wednesday, 30 April 2014 at 10:00 a.m. (London time)
Deadline for receipt by the Solicitation Agent (with a copy to the Tabulation Agent) of all Consents from the Noteholders (subject to the right of the Bank, in its sole discretion, to extend, re-open or amend the deadline and/or terminate or withdraw the Consent Solicitation).
Thursday, 8 May 2014 at 10:00 a.m. (London time)
Final Voting Deadline
Deadline for making any other arrangements to attend or be represented or to vote at the Meeting. However, such Noteholders will not be eligible to receive the Consent Fee.
Thursday, 8 May 2014
Tabulation Agent to submit to the Bank a report with a breakdown of Electronic Instructions and votes cast against the Extraordinary Resolution.
Friday, 9 May 2014
Meeting of Noteholders to consider and, if thought fit, pass the Extraordinary Resolution.
An announcement of the result of the Meeting will be submitted by the Bank to the Luxembourg Stock Exchange for publication on its website. A similar notice will be given to Noteholders through the Clearing Systems.
If the Extraordinary Resolution is passed, the Supplemental Fiscal Agency Agreement relating to the Notes and referred to in the proposed Extraordinary Resolution will be signed by each of, inter alios, the Bank and the Fiscal Agent.
Subject to applicable law and the relevant Meeting Provisions, the Bank, may, at its option and in its sole discretion, extend, re-open, amend or waive any condition of the Consent Solicitation or the Proposed Amendment (other than the terms of the Extraordinary Resolution), or terminate the Consent Solicitation, at any time before the Final Voting Deadline (or, where there is an adjourned Meeting, 48 hours before the time set for any such adjourned Meeting). Details of any such extension, re-opening, amendment, waiver or termination will be announced wherever applicable as provided in the Consent Solicitation Statement as soon as reasonably practicable after the relevant decision is made. Upon any such termination, any Notes that are blocked in the Clearing Systems will immediately cease to be blocked.
Noteholders are advised to check with any bank, securities broker or other intermediary through which they hold their Notes when such intermediary would need to receive instructions from a Noteholder in order for such Noteholder to participate in, or (in the limited circumstances in which revocation is permitted) to validly revoke their instruction to participate in, the Consent Solicitation and/or the Proposed Amendment before the deadlines specified in the Consent Solicitation Statement. The deadlines set by any such intermediary and each Clearing System for the submission and (where permitted) revocation of Electronic Instructions will be earlier than the relevant deadlines specified in the Consent Solicitation Statement.
Questions and requests for assistance in connection with (i) the Consent Solicitation may be directed to the Solicitation Agent and (ii) the delivery of Electronic Instructions may be directed to the Tabulation Agent, the contact details for each of which are in the end of this announcement.
The Agents do not express any opinion on the merits of the Consent Solicitation or the Proposed Amendment or their impact on the interests of existing Noteholders, either as a class or as individuals, nor does it accept any responsibility for the accuracy of this announcement or any other document prepared in connection with the Consent Solicitation.
Noteholders are advised to read carefully the Consent Solicitation Statement for full details of, and information on the procedures for, participating in the Consent Solicitation.
Banco Industrial e Comercial S.A
International Division Director
Av. Brigadeiro Faria Lima, 4440, 5º andar
Sao Paulo, SP 04538-132, Brazil
Citigroup Global Markets Inc.
390 Greenwich Street, First Floor
New York, NY 10013, USA
Attn: Liability Management Group
Collect: (212) 723-6106
Toll free: (800) 558-3745
TABULATION AND INFORMATION AGENT
Global Bondholder Services Corporation
65 Broadway – Suite 404
New York, New York 10006
Attn: Corporate Actions
Banks and Brokers call: (212) 430-3774
Toll free: (866)-470-3800
This announcement must be read in conjunction with the Consent Solicitation Statement. This announcement and the Consent Solicitation Statement contain important information which should be read carefully before any decision is made with respect to the Consent Solicitation. If any Noteholder is in any doubt as to the contents of the Consent Solicitation Statement or the action it should take, it is recommended to seek its own financial advice, including in respect of any tax consequences, from its broker, bank manager, solicitor, accountant or other independent financial, tax or legal adviser. Any individual or company whose Notes are held on its behalf by a broker, dealer, bank, custodian, trust company or other nominee must contact such entity if it wishes to participate in the Consent Solicitation. None of the Bank, the Solicitation Agent or the Tabulation Agent or any of their respective directors, employees or affiliates makes any recommendation whether Noteholders should participate in the Consent Solicitation.
The distribution of this announcement and the Consent Solicitation Statement in certain jurisdictions may be restricted by law. Persons into whose possession this announcement and/or the Consent Solicitation Statement comes are required by each of the Bank, the Solicitation Agent and the Tabulation Agent to inform themselves about, and to observe, any such restrictions. Neither this announcement nor the Consent Solicitation Statement constitutes an offer to buy or a solicitation of an offer to sell Notes.
SOURCE Banco Industrial e Comercial S.A.