The name
of the subject company is Cosan S.A. Indústria e Comércio, a Brazilian publicly
held stock corporation. Cosan S.A. Indústria e Comércio is referred to herein as
“Cosan”. Cosan’s principal executive offices are located at Av. Juscelino
Kubitschek, 1726 - 6th Floor, São Paulo, SP 04543-000, Brazil. The telephone
number of Cosan’s principal executive offices is (55)(11) 3897 -
9797.
The
securities to which this Solicitation/Recommendation Statement on Schedule 14D-9
(this “Statement”) relates are the common shares of Cosan (“Cosan shares”) that
are not owned by Cosan Limited or any of its affiliates. As of March 7, 2008,
272,548,032 Cosan shares were issued and outstanding, 152,939,440 of which were
owned by Cosan Limited and its affiliates, and 119,608,592 of which were owned
by other persons.
Item 2.
Identity and Background of Filing Person
The name,
business address and business telephone number of Cosan, which is the person
filing this Statement, and the subject company, are set forth in Item 1
above.
This
Statement relates to the offer (the “Exchange Offer”) made by Cosan Limited, a
limited liability company formed under the laws of Bermuda, to exchange one
share of its class A common shares for each outstanding Cosan share that is not
owned by Cosan Limited or one of its affiliates or, at the option of the holder,
but solely in the case of a person who was a holder of record of Cosan shares as
of the close of trading on July 26, 2007, as reflected in the books and records
of either Banco Itaú S.A., the depositary for the Cosan shares or Companhia
Brasileira de Liquidação e Custódia (“CBLC”), or an affiliate of such a person
to whom such Cosan shares held as of the close of trading on July 26, 2007 have
been transferred (each, a “July Cosan Shareholder”), one share of its class B
series 2 common shares. In the Exchange Offer, Cosan Limited is also offering to
exchange for its class A common shares or, under the circumstances described
below, its class B series 2 shares, the shares of any entity that is not a
resident of Brazil, has no assets other than Cosan shares or shares of one or
more companies whose sole assets are Cosan shares, has not engaged, directly or
indirectly, in any business other than the holding of the Cosan shares, has no,
direct or indirect, liabilities, contingent or otherwise, and that, directly or
indirectly, individually or as part of a group, holds its Cosan shares as an
investment under Brazilian law No. 4,131/62 (each, a “Holding Entity”). Upon the
terms and subject to the conditions of the Exchange Offer, Cosan Limited is
offering to exchange for all of the shares of any Holding Entity (i) the number
of its class A common shares that the Holding Entity would have received in the
Exchange Offer if it had elected to exchange all of its Cosan shares for class A
common shares of Cosan Limited or (ii) at the option of the tendering
shareholder, but solely in the case of a person tendering shares of a Holding
Entity that is a July Cosan Shareholder, the number of class B series 2 common
shares of Cosan Limited that the Holding Entity would have received in the
Exchange Offer if it had elected to tender all of its Cosan shares in exchange
for class B series 2 common shares.
The
Exchange Offer is being made upon the terms and subject to the conditions set
forth in the prospectus filed by Cosan Limited with the Securities and Exchange
Commission dated March 4, 2008 (the “Prospectus”), the related U.S. Form of
Acceptance, and the related offering materials being published in Brazil (which
together constitute the “Offer Documents”).
The
principal executive offices of Cosan Limited are located at Av. Juscelino
Kubitschek, 1726 - 6th Floor, São Paulo, SP 04543-000, Brazil. The telephone
number of the principal executive offices of Cosan Limited is (55)(11) 3897 -
9797.
Item
3. Past Contacts, Transactions, Negotiations and Agreements.
Except as
described in this Item 3, on the date of the filing of this Statement, there is
no material agreement, arrangement or understanding or any actual or potential
conflict of interest between Cosan and its affiliates, on the one hand, and (i)
Cosan’s executive officers and directors, or (ii) Cosan Limited or any of its
executive officers, directors or affiliates, on the other.
1
Directors
and Executive Officers
Cosan’s
Board of Directors currently consists of eight members, namely Rubens Ometto
Silveira Mello, Chairman of the Board of Directors, Pedro Isamu Mizutani,
Vice-Chairman of the Board of Directors, Burkhard Cordes, Hélio Nicoletti,
Marcus Vinícius Pratini de Moraes, Marcelo de Souza Scarcela Portela, Serge
Varsano and Paulo Sérgio de Oliveira Diniz.
Several of
Cosan’s directors also hold positions with Cosan Limited. Mr. Mello is the
Chairman of the Board of Directors of Cosan Limited and is also the company’s
Chief Executive Officer. Mr. Diniz is the Secretary of the Board of Directors of
Cosan Limited and is also the company’s Chief Financial and Investor Relations
Officer. Mr. Mizutani is a director of Cosan Limited and is also the company’s
Chief Operating Officer. Messrs. Pratini de Moraes and Portela are also
directors of Cosan Limited. These individuals will continue to serve in the same
positions following the Exchange Offer. These dual responsibilities could
create, or appear to create, potential conflicts of interest when Cosan
Limited’s directors and executive officers are faced with decisions that could
have different business, financial or legal implications for Cosan and Cosan
Limited. In addition, Cosan Limited’s directors and executive officers have
fiduciary duties to Cosan Limited and Cosan that may also create potential
conflicts of interest.
Item
4. The Solicitation or Recommendation.
At a
meeting held on March 7, 2008, the Board of Directors of Cosan decided that
Cosan would not approve, disapprove or make any recommendation with respect to
the Exchange Offer.
In
determining that Cosan would not approve, disapprove or make any recommendation
with respect to the Exchange Offer, Cosan’s Board of Directors noted that
Brazilian law, which governs the duties and obligations of Cosan’s Board of
Directors, does not impose any fiduciary or other duty or obligation on Cosan or
Cosan’s Board of Directors to seek or obtain any particular exchange ratio in
the Exchange Offer, to approve or disapprove the Exchange Offer, to make any
statement or recommendation or to otherwise play any role in connection with the
Exchange Offer. Furthermore, Brazilian law does not impose any fiduciary or
other duty or obligation on Cosan or Cosan’s Board of Directors to make any
determination or analysis regarding the Exchange Offer or the exchange ratio,
including whether or not the terms of the Exchange Offer or the exchange ratio
is fair to unaffiliated security-holders, nor does it require either of them to
obtain, or retain any outside person to prepare, any report, opinion or
appraisal relating to the value of Cosan, the Cosan shares or the fairness of
the Exchange Offer or to negotiate on behalf of the unaffiliated
security-holders. Additionally, the Exchange Offer is being made by the
controlling shareholder of Cosan.
After
reasonable inquiry and to its best knowledge, Cosan understands that none of its
executive officers, directors, affiliates or subsidiaries intends to tender
Cosan shares in the Exchange Offer.
Item
5. Person/Assets Retained, Employed, Compensated or Used.
Neither
Cosan nor any person acting on its behalf has directly or indirectly employed,
retained or compensated, or currently intends to employ, retain or compensate,
any other person to make solicitations or recommendations to holders of Cosan
shares on Cosan’s behalf with respect to the Exchange Offer.
Item
6. Interest in Securities of the Subject Company.
Except as
described below, no transactions in the Cosan shares have been effected during
the past 60 days by Cosan or, to the knowledge of Cosan, by any executive
officer, director or affiliate of Cosan.
The
following executive officers, directors and affiliates of Cosan purchased or
sold Cosan shares in the last 60 days:
On January16, 2008, Aguassanta Participações S/A sold 60,000 Cosan shares on the open
market at a price of R$24.7812 per Cosan share.
On January17, 2008, Aguassanta Participações S/A subscribed for 66,607 Cosan shares in
connection with a capital increase by Cosan at a price of R$21.00 per Cosan
share.
2
On January18, 2008, Aguassanta Participações S/A sold 144,779 Cosan shares on the open
market at a price of R$24.4637 per Cosan share.
On January23, 2008, Aguassanta Participações S/A sold 60,000 Cosan shares on the open
market at a price of R$23.5158 per Cosan share.
On January24, 2008, Aguassanta Participações S/A sold 40,000 Cosan shares on the open
market at a price of R$24.0181 per Cosan share.
On
February 27, 2008, Aguassanta Participações S/A sold 96,180 Cosan shares on the
open market at a price of R$28.0542 per Cosan share.
On
February 28, 2008, Aguassanta Participações S/A sold 37,200 Cosan shares on the
open market at a price of R$27.8350 per Cosan share.
On January17, 2008, Cosan Limited subscribed for 13,652,087 Cosan shares in connection
with a capital increase by Cosan at a price of R$21.00 per Cosan
share.
On January22, 2008, Cosan Limited subscribed for 983,394 Cosan shares in connection with a
capital increase by Cosan at a price of R$21.00 per Cosan share.
On January17, 2008, Rio das Pedras Participações S.A. subscribed for 3,357 Cosan shares in
connection with a capital increase by Cosan at a price of R$21.00 per Cosan
share.
On January18, 2008, Rio das Pedras Participações S.A. sold 10,378 Cosan shares on the open
market at a price of R$24.4606 per Cosan share.
On
February 26, 2008, Rio das Pedras Participações S.A. sold 20,000 Cosan shares on
the open market at a price of R$28.0350 per Cosan share.
On
February 27, 2008, Rio das Pedras Participações S.A. sold 3,820 Cosan shares on
the open market at a price of R$28.0542 per Cosan share.
On January16, 2008, Rubens Ometto Silveira Mello subscribed for 31,956 Cosan shares in
connection with a capital increase by Cosan at a price of R$21.00 per Cosan
share.
On January16, 2008, Pedro Isamu Mizutani subscribed for 29,687 Cosan shares in connection
with a capital increase by Cosan at a price of R$21.00 per Cosan
share.
On January21, 2008, Pedro Isamu Mizutani subscribed for 2,100 Cosan shares in connection
with a capital increase by Cosan at a price of R$21.00 per Cosan
share.
On January17, 2008, Paulo Sérgio de Oliveira Diniz subscribed for 23,477 Cosan shares in
connection with a capital increase by Cosan at a price of R$21.00 per Cosan
share.
On January22, 2008, Paulo Sérgio de Oliveira Diniz subscribed for 1,661 Cosan shares in
connection with a capital increase by Cosan at a price of R$21.00 per Cosan
share.
On
February 1, 2008, Armando Vieira Viotti sold 65,000 Cosan shares on the open
market at a price of R$24.31 per Cosan share.
On
February 15, 2008, Armando Vieira Viotti sold 5,000 Cosan shares on the open
market at a price of R$25.00 per Cosan share.
On
February 22, 2008, Armando Vieira Viotti sold 2,500 Cosan shares on the open
market at a price of R$27.75 per Cosan share.
3
On
February 25, 2008, Armando Vieira Viotti sold 5,000 Cosan shares on the open
market at a price of R$28.50 per Cosan share.
Item
7. Purposes of the Transaction and Plans or Proposals.
Except as
described below, Cosan is not undertaking or engaged in any negotiations in
response to the Exchange Offer which relate to, or would result in, one or more
of the following or a combination thereof: (i) a tender offer for or other
acquisition of securities by or of Cosan (ii) any extraordinary transaction,
such as a merger, reorganization or liquidation, involving Cosan or any of its
subsidiaries, (iii) any purchase, sale or transfer of a material amount of the
assets of Cosan or any of its subsidiaries or (iv) any material change in the
present dividend rate or policy, or indebtedness or capitalization of
Cosan.
Except as
described below, there are no transactions, board resolutions, agreements in
principle or signed contracts that have been entered into in response to the
Exchange Offer that relate to one or more of the matters referred to in this
Item 7.
If more
than two-thirds of the common shares held by existing minority shareholders of
Cosan are tendered in the Exchange Offer, under Brazilian law Cosan Limited will
be required, for an additional three-month period, to provide non-tendering
Cosan existing minority shareholders another opportunity to tender their Cosan
shares at the exchange ratios established for the Exchange Offer for class A
common shares or, solely for Cosan’s existing shareholders of record as of July26, 2007, Cosan Limited’s class B series 2 common shares.
Cosan
Limited will announce the procedures applicable to tenders of shares during the
additional three-month period at the same time that Cosan Limited announces
whether or not this additional three-month period will be offered.
In
accordance with the requirements of Brazilian law, Cosan Limited agrees to pay
to holders of qualifying Cosan shares tendered in the Exchange Offer the amount,
if any, by which: (1) the price assigned to the Cosan shares exchanged in the
Exchange Offer, indexed for inflation at the Brazilian Reference Rate (TR)
(assuming a 365-day year) pro
rata temporis starting on April 14, 2008 and ending on the effective date
of payment of the amount due (indexed for inflation based on the changes in the
number of shares resulting from splits, reverse splits, and conversions), is
less than (2) the price per Cosan share that would be payable in the event of
the occurrence, within one year of April 14, 2008, of (a) a fact that requires
or may require the performance of a mandatory tender offer for the acquisition
of Cosan shares or (b) a corporate event that would allow the right to withdraw
to be exercised by the holders of Cosan shares taking part in the Exchange
Offer, were they still shareholders of Cosan as of the date of such corporate
event and disagreed with the resolution to approve the implementation of any
corporate event allowing for the exercise of such right.
Upon
completion of the Exchange Offer and upon confirmation that more than two-thirds
of the common shares held by existing minority shareholders of Cosan were
validly tendered, Cosan Limited intends to perform a new voluntary public
offering to acquire such outstanding shares with a view to delisting Cosan from
the Novo Mercado (the
“Delisting Offer”).
By
participating in the Exchange Offer, a holder of Cosan shares acknowledges that
(1) such holder is aware that new public offerings for the acquisition of shares
can be performed by the company, pursuant to articles 10, §1, and 14 of CVM
Instruction No. 361 and (2) such holder understands and agrees that such holder
will not be entitled to payment of any excess price or payment conditions or
possibility to intervene or any other different conditions than those
established for the Exchange Offer and those that may be set forth for the
Delisting Offer.
Item
8. Additional Information.
Certain
Legal Matters
Except as
otherwise disclosed in this Schedule, Cosan is not aware of any licenses or
other regulatory permits that appear to be material to the business of Cosan and
that might be adversely affected by the acquisition of Cosan shares by Cosan
Limited pursuant to the Exchange Offer or of any approval or other action by any
governmental, administrative or regulatory agency or authority that would be
required for the acquisition or ownership of Cosan shares by Cosan Limited
pursuant to the Exchange Offer. Cosan Limited’s obligation to
complete the Exchange Offer is subject to certain conditions that are set forth
under the caption “The Exchange Offer – Conditions to Completion of the Exchange
Offer” in the Prospectus and are incorporated herein by reference.
4
Forward-Looking
Statements
This
Schedule, including the Exhibits referred to herein, has certain statements by
or relating to Cosan and the transactions with Cosan Limited that are neither
reported financial results nor other historical information. These
statements are forward-looking statements and, as such, are subject to
qualifications concerning risks and uncertainties that could cause actual
results to differ materially from those expressed in the forward-looking
statements. Many of these risks and uncertainties relate to factors
that are beyond Cosan’s ability to control or estimate precisely, including
risks and uncertainties described under the captions “Risk Factors” and
“Forward-Looking Statements” in the Prospectus. You are cautioned not
to place undue reliance on these forward-looking statements, which speak only as
of the date of this Schedule. Cosan does not undertake any obligation
to release publicly any revisions to these forward-looking statements to reflect
events or circumstances after the date of this Schedule.
Additional
Information
Cosan
Limited is subject to the informational requirements of the U.S. Securities
Exchange Act of 1934. Accordingly, Cosan Limited is required to file
reports and other information with the SEC, including annual reports on Form
20-F and reports on Form 6-K. You may inspect and copy reports and
other information to be filed with the SEC at the public reference facilities
maintained by the SEC at 100 F Street, N.E., Washington D.C.
20549. Copies of the materials may be obtained from the Public
Reference Room of the SEC at 100 F Street, N.E., Washington, D.C. 20549 at
prescribed rates. The public may obtain information on the operation
of the SEC’s Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC
also maintains an internet website at http://www.sec.gov,
from which you may electronically access the registration statement and its
materials. In addition, you may inspect reports and other information concerning
Cosan Limited at the offices of The New York Stock Exchange, Inc. at 20 Broad
Street, New York, NY10005.
The SEC
allows us to “incorporate by reference” information into this Schedule, which
means that we can disclose important information to you by referring you to
another document filed separately with the SEC. The information
incorporated by reference is deemed to be part of this Schedule, except for any
information superseded by information directly in this Schedule. The
information in all of the Exhibits referred to in Item 9 below is incorporated
herein by reference.
Form
of Instructions for the Online U.S. Form of Acceptance (incorporated
herein by reference to Exhibit 99.4 to Cosan Limited’s Registration
Statement on Form F-4 (SEC File No. 333-147235), declared effective by the
SEC March 4, 2008)
Press
Release of Cosan Limited dated November 23, 2007 (incorporated herein by
reference to Exhibit 99.1 to Cosan Limited’s Registration Statement on
Form F-4 (SEC File No. 333-147235), declared effective by the SEC March 4,2008)
Exhibit 6
Press
Release of Cosan Limited dated February 28, 2008 (incorporated herein by
reference to Exhibit 99.2 to Cosan Limited’s Registration Statement on
Form F-4 (SEC File No. 333-147235), declared effective by the SEC March 4,2008)
5
SIGNATURE
After due
inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and
correct.
Cosan
S.A. Indústria e Comércio
By:
/s/ Rubens
Ometto Silveira Mello
Name:
Rubens
Ometto Silveira Mello
Title:
Chairman
and Chief Executive Officer
6
Dates Referenced Herein and Documents Incorporated by Reference
