CCX - Comunicado ao Mercado (2015 12 28) (2)

CCX CARVÃO DA COLÔMBIA S.A.
CNPJ/MF: 07.950.674/0001-04
NIRE: 33.300.278.443
(Companhia Aberta)
COMUNICADO AO MERCADO
REUNIÃO PÚBLICA COM ANALISTAS
(CONFORME PREVISTO NO CALENDÁRIO ANUAL DE EVENTOS
CORPORATIVOS)
CCX CARVÃO DA COLÔMBIA S.A. (BM&FBovespa: CCXC3) (“Companhia” ou
“CCX”), em atendimento ao artigo 157, parágrafo 4º, da Lei nº 6.404/76, e na forma da
Instrução da Comissão de Valores Mobiliários (“CVM”) nº 358/02, vem comunicar aos
seus acionistas e ao mercado em geral que:
1.
Conforme previsto no Calendário Anual de Eventos Corporativos da
Companhia, o qual foi devida e tempestivamente divulgado pela Companhia em
consonância com a legislação aplicável, estava previsto para a data de hoje a
realização da Reunião Pública com Analistas.
2.
A Companhia organizou-se para a realização do referido evento corporativo,
tendo inclusive disponibilizado toda a logística e infraestrutura para a realização
da Reunião Pública com Analistas na presente data, razão pela qual estiveram
presente à sede da Companhia o seu Diretor Presidente e, ao mesmo tempo,
Diretor de Relações com Investidores, bem como a equipe técnica e os
advogados da Companhia para prestar esclarecimentos e informações
eventualmente solicitadas.
3.
Entretanto, o evento não chegou a ser formalmente realizado, uma vez que
nenhum investidor, analista de mercado ou outro interessado compareceram à
Reunião Pública com Analistas.
4.
A despeito do não comparecimento de qualquer interessado ao evento
corporativo pré-agendado e da sua consequente não realização, um breve resumo
das informações que seriam apresentadas na reunião constitui o Anexo I a esta
correspondência.
5.
A Companhia permanece à disposição de seus acionistas e do mercado em geral
para eventuais esclarecimentos e informações sobre o tema.
CCX Carvão da Colômbia S.A.
Gunnar Gonzalez Pimentel
Diretor Presidente e Diretor de Relações com Investidores
RI CCX:
E-mail: [email protected] / Website: www.ccx.com.co/ri
CCXC3 : CCX CARVÃO DA COLÔMBIA S.A
ANNUAL PUBLIC MEETING
RIO DE JANEIRO – DECEMBER 2015
Company Highlights:
Brazilian listed company at BM&FBovespa in the “Novo Mercado” (New Market)
segment which represents the highest level of demand in terms of corporate
governance.
Market Cap of approximately R$60MM on Dec 28, 2015.
Key executives:
Gunnar Gonzalez Pimentel – CEO and IR Director
Eike Fuhrken Batista – Director, President of the Board of Directors (Chairman)
and Controlling Shareholder
Holds a large scale world class coal mining integrated project in Colombia sold
under an APA in March/2014 which is currently subjected to an Arbitration on
ICCB for termination claimed from the buyer (Yildirim).
Corporate Structure:
Eike Fuhrken Batista
56,22%
Centennial Asset
Mining Fund LLC
Centennial Asset Brazil
Equity Fund LLC
3,96%
1,48%
CCX Carvão da
Colômbia S.A
100%
CCX Brasil
Participações S.A
100%
CCX Áustria GmbH
100%
83,19%
CCX Vienna GmbH
16,81%
CCX Colombia S.A.
Free Float
38,34%
Development:
CCX is a company formed to focus on the development of an
integrated coal mine, railway and port project in Colombia. Most
of its assets are now under the APA signed with YCCX in March
of 2014. The APA is currently subjected to an Arbitration
procedure on ICCB started by YCCX on March this year,
2012 - 05
now claiming the termination of the contract
from October of 2015.
2011
2014
2013
PIN and Port
Spin Off CCX
APA signed
with Yildirim
CCX San Juan
CCX Projects
recognized by Gov. Integrated Project,
43.101 for
Cañaverales and
CCXC3 listing at as PIN – National
San Juan
Papayal
Interest
Projects
Novo Mercado
2010 - 01
Environmental
concessions were
BM&FBOVESPA
Resol. From
Permits
sold to YCCX for
Up to 30Mtpy
ANI with
~
62%
EBX
/
38%
st
USD 125 million
1 Business
Pre-Feasibility
guidelines for
public float
(USD 35 million
Plan
Environmental Study for
Port Concession
received and USD
integrated mining
License for
90 million
NI
43-101
Acquisition of
project
Cañaverales
2008
subjected to
Port Site (SJ) Independent
fulfillment of some
DAA
Port
(SJ)
statement
conditions
Acquisition of
for resources
DAA Railway (SJ)
st
precedent
1 Mining
2,000 hectares and reserves for
remaining)
Papayal and
Rights
Natural deep
Cañaverales
Coal
water port
concessions
acquired by MPX
as an investment
in an integrated
Colombia was chosen due to its strategic location, quality and availability of coal and its mining friendly history and political environment.
energy system
2010 - 04
2015
Conditions
precedent of the
APA achieved and
Arbitration started
by Yildirim
On October 1st
Yildirim claimed the
termination of the APA.
CCX disagreed.
Arbitration changed.
On September 30th
CCX informed Yildirim
that have satisfied all
conditions precedent of
the APA under his
responsibility.
On March CCX was
informed that Yildirim
was requesting an
arbitrage to enforce the
transfer of the assets
under the APA.
2
Project
Location:
Project
Location: La Guajira
Port
Project
Cerrejon
mine
CCX Project
Project in-flight picture:
Project Area
SAN JUAN RESOURCES – CCX Main Project
(under the APA)
Measured
Indicated
Inferred
More than US$450Million invested since
2008 in the project for resources/reserve
definition
6.2Bn ton resources, of which approx.
92% are Measured & Indicated (NI 43101 certified)
High quality coal with little to nonimpurities
• Average 6,700kcal/kg
• Sulphur < 0.50%
1,200 km´s of 3D High resolution seismic
lines completed
50,000 meters of drilling completed
8
INTEGRATED INFRASTRUCTURE DEVELOPMENT(under the APA)
Provides 100% control of market access
Railroad
Best in class design by Worley-Parsons
–66,100 man-hours of engineering
Naturally favorable conditions
–Total rail length: 150km
–Flat route (200m grade over full distance)
–Preliminary permits received
–No environmentally sensitive terrain (e.g. no
national parks)
–Adjacent to existing national road
–Rights of way: easements and expropriation
permitted pursuant to the Mining Code
Expandable in the short term
INTEGRATED INFRASTRUCTURE DEVELOPMENT(under the APA)
Provides 100% control of market access
Port
Best in class design by Worley-Parsons and
Moffat & Nichol
–59,500 man-hours of engineering
Land acquired and preliminary permits received
(DAA)
Port Concession already issued by
Government of Colombia (October 2013)
Overview
–Port capacity: 35Mtpa of coal, expandable in
the near term
–360m double berth, each side with capacity to
berth a Capesize vessel
–Natural deep water port
HIGH QUALITY THERMAL COAL AT LOW COST (under the APA)
Quality compliance coal at low delivered cost
Global Thermal Coal Cash Costs (CIF China) (1)
2012E
$/tonne
High energy content compliance coal with very low
impurities
CCX cash costs compare favorably globally on both an
FOB and CIF China basis
–No washing required
First quartile cash costs
Expansion of the Panama canal will reduce freight costs
to China by $5 - $10 / tonne
Thermal Coal
kcal/kg
Ash%
(As Received Basis)
S%
Benchmark (API2)
6,300
San Juan
6,289
6.8
0.5
Cañaverales
5,839
5.6
0.4
Papayal
6,764
9.6
1.1
Note
1.Energy content adjusted as per Wood Mackenzie
11–15 <1.0%
Source
Wood Mackenzie and Company (June 2012)
The Asset Purchase Agreement (APA)
Definitive agreement that formalizes the conclusion of the negotiations of the subsidiary CCX Colombia S.A.
with Yildirim Holding A.S. (“Yildirim”), executed on March 26th, 2014 between the parties, setting forth the
terms and conditions for the sale of the open pit mining projects Cañaverales and Papayal and the San
Juan underground mine, including the logistics associated therewith, comprised by the railway and the port
(the “ Transaction”).
The total purchase price for the Transaction was USD 125 million (which includes the upfront payment of
USD 5 million to CCX on 11/13/2013 that guaranteed Yildirim the exclusivity in the negotiations), of which
USD 30 million has already being paid.
The payment of the outstanding amount of USD 90 million is due at the closing of the Transaction, when
the remaining assets shall be transferred from CCX to Yildirim.
Unfortunately, circumstances totally out of CCX´s control have delayed the concession assignment (the
reach of the closing of the Transaction), expected to happen until December 31st, 2014.
By March 2015, for some reasons, including the mistaken belief of ANM – later corrected – that some of the
titles were not in full compliance with applicable mining regulations, there were still pending the approvals
to transfer the titles underlying the projects Cañaverales and San Juan.
The Asset Purchase Agreement (APA) Arbitration
On March 05, 2015, based on the incorrect belief that CCX was not intending to move forward with the
transfer of the three mining titles not yet transferred, Yildirim has filed an arbitration request against CCX
regarding the Transaction, seeking to compel CCX to accomplish certain conditions to closing that had not
been fulfilled at that time.
By July 2015 CCX achieved significant progress regarding the assignment of the left mining concession and
in September 2015 had secured the authorities` approvals for the transfer of all of the mining titles (5)
underlying the three mining projects.
In the days leading up to September 30, 2015 (the scheduled closing), CCX thus reaffirmed its intention to
close and invited Yildirim to close on September 30 or to extend the Closing deadline for a short period of
time to allow an orderly organization of the Closing.
Instead, on October 1, 2015, YCCX sent a communication purporting to terminate the APA and refusing to
Close, allegedly because certain conditions for Closing remained unfulfilled by September 30, 2015.
On October 15,2015, according to the schedule regarding the arbitration, Yildirim presented its Statement
of Claim, in which requests to the arbitration Court the recognition of the termination of the Transaction.
The Asset Purchase Agreement (APA) Arbitration
In the past days, CCX presented its Statement of Defense and Counterclaim in which the following main
points were appointed:
By the time that YCCX purported to terminate the APA, CCX had transferred all of the mining titles
underlying the three mining projects at the heart of the APA. Indeed, today YCCX is the sole
owner of the Papayal, Canaverales and San Juan mining projects.
In addition to the APA, two cardinal principles of Colombian law refute YCCX’s purported
termination of the APA. The first principle is that YCCX cannot rely on purported contractual
conditions unfulfilled owing to YCCX’s own actions or inaction. The second principle concerns abuse
of right. To the extent that any purported conditions to closing may have remained unfulfilled,
those conditions were insignificant—and would in all events have been met shortly after the Closing
date. In these circumstances YCCX’s termination of the APA constitutes an abuse of right.
YCCX terminated the APA only because Yildirim no longer wanted
commercial reasons (the decline in coal prices)—not because CCX
because the transfer of the mining projects at the heart of the APA
uncertain in any way. When YCCX wrongfully terminated the APA, all
transferred with the ANM’s approval.
the Purchased Assets for
had breached the APA or
had been rejected or was
five mining titles had been
The Asset Purchase Agreement (APA) Arbitration
Other principles under Colombian law also refute YCCX’s wrongful conduct and require it to make
CCX whole. YCCX’s conduct is also contrary to the (estoppel) actos propios doctrine—which
precludes a party from contradicting its own past conduct when it has led its counterparty to
believe that it would act in a certain way and the change in conduct harms the counterparty—and
the Colombian law principle that requires that contracts be interpreted such that the intent of the
parties be fulfilled rather than frustrated.
Finally, YCCX’s conduct constitutes a clear breach of the express terms of the APA, which—
consistent with Colombian law—required YXXC to act [“ .“]. YCCX fell far short from that obligation
and rather avoided any cooperation hoping to frustrate the transaction.
It follows that YCCX’s purported termination of the APA is invalid and YCCX must pay CCX all the
damages caused by YCCX’s wrongful breach of the APA.
ARBITRATION – Final Overview
As per the APA, CCX agreed to sell and YCCX agreed to buy 3 (three) coal mining projects in Colombia,
along with their related assets. Yildirim/YCCX paid USD$5 million for the exclusivity, YCCX paid USD$30
million at signing and USD$90 million due at Closing. At the eleventh-hour, however, YCCX breached the
APA and refused to close because of declining coal prices.
YCCX purported to terminate the APA under the pretext that certain conditions to closing had not been
fulfilled. YCCX is being disingenuous. Not only had virtually all conditions to closing been fulfilled—
including the transfer of the five mining concessions underlying the 3 (three) mining projects sold—but
any lingering conditions either could have been fulfilled in a matter of days or were delayed as a result of
YCCX’s obstruction.
YCCX’s true reason to terminate the APA was the decline in coal prices—which evidently made the
purchase of the mining assets commercially less attractive. But declining coal prices did not entitle YCCX
to back out of the APA and its willful refusal to close is a breach of the APA.
CCX is endeavoring its best efforts for the Tribunal to grant CCX’s counterclaim and direct YCCX to pay
CCX its substantial breach-of-contract damages. Those damages include among other things the $90
million balance of the Purchase Price that YCCX still owes CCX.