Filed by
Gafisa S.A.
This
communication is filed pursuant to Rule 425 under The Securities Act of 1933, as
amended.
Subject
Company: Construtora Tenda S.A.
Commission
File Number: 001-33356
Date:
October 23, 2009
THE
FOLLOWING ARE MATERIALS MADE PUBLIC BY GAFISA S.A. OR CONSTRUTORA TENDA S.A.
RELATING TO THE PROPOSED MERGER OF SHARES (INCORPORAÇÃO DE AÇÕES) OF
CONSTRUTORA TENDA S.A. INTO GAFISA S.A.
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These
materials may contain forward−looking statements within the meaning of the “safe
harbor” provisions of the Private Securities. These statements are statements
that are not historical facts, and are based on management’s current view and
estimates of future economic circumstances, industry conditions, company
performance and financial results. The words “anticipates”, “believes”,
“estimates”, “expects”, “plans” and similar expressions, as they relate to the
company, are intended to identify forward-looking statements. Statements
regarding the declaration or payment of dividends, the implementation of
principal operating and financing strategies and capital expenditure plans, the
direction of future operations and the factors or trends affecting financial
condition, liquidity or results of operations are examples of forward-looking
statements. Such statements reflect the current views of management and are
subject to a number of risks and uncertainties. There is no guarantee that the
expected events, trends or results will actually occur. The statements are based
on many assumptions and factors, including general economic and market
conditions, industry conditions, and operating factors. Any changes in such
assumptions or factors could cause actual results to differ materially from
current expectations.
* * * *
*
EXHIBITS
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1.
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Material
Fact Release of Construtora Tenda S.A., dated October 23, 2009, announcing
the establishment of an independent committee relating to the proposed
merger of shares of Construtora Tenda S.A. into Gafisa
S.A..
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2
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Minutes
of the Meeting of the Board of Directors of Construtora Tenda S.A., held
on October 22, 2009.
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TENDA
S.A.
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Publicly-Held
Company
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NIRE
35300348206
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CNPJ/MF
71.476.527/0001-35
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MATERIAL
FACT RELEASE
TENDA S.A. (TEND3) (“Tenda”), in
compliance with paragraph 4 of article 157 of Law No. 6,404/76 and with CVM’s
Regulation No. 358/02, and further to the Material Fact Release published on
10.22.09, announces that, in the Board Meeting held on 10.22.09, a Company
transitory Independent Committee was established, composed by Messrs. Henrique de Freitas Alves
Pinto, a Board Member elected, in a separate vote, by Company’s minority
shareholders, Mauricio Luis
Luchetti, an independent Board Member, and Eduardo B. Gentil, an
individual with sound experience and technical capacity, to negotiate the
conditions of the merger of the totality of Company’s outstanding shares by
Gafisa S.A. (“Gafisa”), the Company’s controlling shareholder, and submit its
recommendations to the competent corporate bodies.
São
Paulo, October 23, 2009
Paulo
Cassoli Mazzali
CFO and
Investors Relations Officer
Forward-Looking
Statements
This
document may include “forward-looking statements” within the meaning of the
“safe harbor” provisions of the U.S. Private Securities Litigation Reform Act of
1995. Forward-looking statements may be identified by the use of
words such as “anticipate,” “believe,” “expect,” “estimate,” “plan,” “outlook,”
“project” and other similar expressions that predict or indicate future events
or trends or that are not statements of historical matters. Investors
are cautioned that such forward-looking statements are based on current
expectations that are subject to risks and uncertainties. A number of factors
could cause actual results or outcomes to differ materially from those indicated
by such forward-looking statements. These factors include, but are not limited
to, the following risks and uncertainties: those set forth in Gafisa’s filings
with the Securities and Exchange Commission (SEC), the failure to obtain and
retain expected synergies from the proposed transaction, failure of Gafisa or
Tenda stockholders to approve the merger, delays in obtaining, or adverse
conditions contained in, any required regulatory approvals, failure to
consummate or delay in consummating the transaction for other reasons, changes
in laws or
regulations
and other similar factors. Readers are referred to Gafisa’s most
recent reports filed with the SEC. Tenda or Gafisa are under no
obligation to and expressly disclaim any such obligation to update or alter
forward-looking statements whether as a result of new information, future events
or otherwise.
Additional
Information and Where to Find It
This document relates to a proposed
transaction involving Gafisa S.A. and Construtora Tenda S.A. In connection with
the proposed transaction, Gafisa intends to file with the SEC a registration
statement on Form F-4 to register Gafisa common shares to be issued in the
proposed transaction. Gafisa intends to continue to file additional relevant
materials with the SEC. The registration statement and the related prospectus
will contain important information about Gafisa, Tenda, the proposed transaction
and related matters. Without prejudice to publication, by the companies,
of the information and documents required by corporate legislation and by the
regulations of the Comissão de Valores
Mobiliários through the
Sistema de
Informações Periódicas e Eventuais (“IPE”) in the websites of the Comissão de Valores
Mobiliários (www.cvm.gov.br) and of the BM&FBOVESPA S.A. –
Bolsa de Valores, Mercadorias e Futuros (www.bovespa.com.br) and/or in their respective websites
(www.gafisa.com.br or www.tenda.com.br, as the case may be), any and all
information made available abroad will be simultaneously made available in
Brazil through the IPE. Investors will be able to obtain copies of the offering
document and other documents from the SEC's Public Reference Room at 100 F
Street, N.E., Washington D.C., 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the Public Reference Room. The documents may also be
obtained from the website maintained by the SEC at http://www.sec.gov, which
contains reports and other information regarding registrants that file
electronically with the SEC. Gafisa and Tenda have also filed certain documents
with the Comissão de Valores Mobiliários, the Brazilian securities commission,
which are available on the CVM’s website at http://www.cvm.gov.br. In addition,
documents (including any exhibits) filed with the SEC or CVM by Gafisa or Tenda
will be available free of charge from the Investor Relations offices of Gafisa
S.A., located at Avenida Nações Unidas, 8501, 19th floor, São Paulo, SP, Brazil
05425-070, tel: 011-55-11-3025-9305, and of Construtora Tenda S.A., located at
Av. Eng. Luis Carlos Berrini, 1.376, 9th floor, Edifício Torre Nações Unidas,
Brooklin Paulista, São Paulo, SP, Brasil 04571-000, tel: 011-55-11-3040-6426.
SHAREHOLDERS OF TENDA ARE URGED TO READ THE REGISTRATION STATEMENT AND ANY OTHER
RELEVANT DOCUMENTS FILED BY GAFISA WITH THE SEC, INCLUDING THE PROSPECTUS,
BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED
TRANSACTION.
This
communication shall not constitute an offer to sell or the solicitation of an
offer to buy, nor shall there be any sale of securities in any jurisdiction in
which such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of such jurisdiction.
CONSTRUTORA
TENDA S.A.
CNPJ/MF
No. 71.476.527/0001-35
NIRE
35300348206
MINUTES
OF THE BOARD OF DIRECTORS MEETING
HELD
ON OCTOBER 22, 2009
DATE, TIME AND VENUE: On
October 22, 2009, at 7pm, through conference call, as expressly authorized by
the By-Laws of Construtora Tenda S.A. (“Company”).
CALL NOTICE AND ATTENDANCE: As
all members of the Company’s Board of Directors attended the meeting, the
instatement and approval quorum were verified.
PRESIDING BOARD: Chairman: Wilson
Amaral de Oliveira; Secretary: Grace
Cristine Ferreira Rocha.
RESOLUTIONS: The Board members resolved, by
unanimous vote and without reservations, to nominate Messrs. Henrique de Freitas Alves
Pinto, a Board Member elected, in a separate vote, by Company’s minority
shareholders, and Mauricio Luis
Luchetti, an independent Board Member, to be members of a transitory
Independent Committee. Having accepted the nomination, they jointly
chose Mr. Eduardo B.
Gentil, a Brazilian citizen, economist and resident in the city and State
of São Paulo, at Praça Simon Bolívar, 17, bearer of identity card RG No. 3361829
and enrolled with the CPF/MF under No. 001067468-39, an individual with
sound experience and technical capacity, to be the third member of the
Independent Committee. The Independent Committee will negotiate the
conditions of the merger of the totality of Company’s outstanding shares by
Gafisa S.A. (“Gafisa”), the Company’s controlling shareholder, and submit its
recommendations to the competent corporate bodies. The Board of Directors also
authorized the Company’s officers to (i) as necessary, negotiate and agree on
the remuneration of one or more members of the Independent Committee; and (ii)
as required by the Independent Committee and following the Committee’s
indication, hire independent consultants to support the Committee’s activities,
at Company’s cost.
CLOSING: With no further matters to be
discussed, these minutes were read, approved and signed by those attending the
meeting. São Paulo,
October 22, 2009.
Signatures:
Wilson Amaral de Oliveira (Chairman of the Board), Grace Cristine Ferreira Rocha
(Secretary of the Meeting). Board Members: Wilson Amaral de
Oliveira, Alceu
Duilio Calciolari, Rodrigo Osmo, Fernando Cesar Calamita, Henrique de Freitas
Alves Pinto, Maurício Luis Luchetti and Thomas Joseph
McDonald.
I hereby certify that this is a true
copy of the minutes drawn up in the appropriate corporate
book.
Grace
Cristine Ferreira Rocha
Secretary
2
Forward-Looking
Statements
This
document may include “forward-looking statements” within the meaning of the
“safe harbor” provisions of the U.S. Private Securities Litigation Reform Act of
1995. Forward-looking statements may be identified by the use of
words such as “anticipate,” “believe,” “expect,” “estimate,” “plan,” “outlook,”
“project” and other similar expressions that predict or indicate future events
or trends or that are not statements of historical matters. Investors
are cautioned that such forward-looking statements are based on current
expectations that are subject to risks and uncertainties. A number of factors
could cause actual results or outcomes to differ materially from those indicated
by such forward-looking statements. These factors include, but are not limited
to, the following risks and uncertainties: those set forth in Gafisa’s filings
with the Securities and Exchange Commission (SEC), the failure to obtain and
retain expected synergies from the proposed transaction, failure of Gafisa or
Tenda stockholders to approve the merger, delays in obtaining, or adverse
conditions contained in, any required regulatory approvals, failure to
consummate or delay in consummating the transaction for other reasons, changes
in laws or regulations and other similar factors. Readers are
referred to Gafisa’s most recent reports filed with the SEC. Tenda or
Gafisa are under no obligation to and expressly disclaim any such obligation to
update or alter forward-looking statements whether as a result of new
information, future events or otherwise.
Additional
Information and Where to Find It
This document relates to a proposed
transaction involving Gafisa S.A. and Construtora Tenda S.A. In connection with
the proposed transaction, Gafisa intends to file with the SEC a registration
statement on Form F-4 to register Gafisa common shares to be issued in the
proposed transaction. Gafisa intends to continue to file additional relevant
materials with the SEC. The registration statement and the related prospectus
will contain important information about Gafisa, Tenda, the proposed transaction
and related matters. Without prejudice to publication, by the companies,
of the information and documents required by corporate legislation and by the
regulations of the Comissão de Valores
Mobiliários through the
Sistema de
Informações Periódicas e Eventuais (“IPE”) in the websites of the Comissão de Valores
Mobiliários (www.cvm.gov.br) and of the BM&FBOVESPA S.A. –
Bolsa de Valores, Mercadorias e Futuros (www.bovespa.com.br) and/or in their respective websites
(www.gafisa.com.br or www.tenda.com.br, as the case may be), any and all
information made available abroad will be simultaneously made available in
Brazil through the IPE. Investors will be able to obtain copies of the offering
document and other documents from the SEC's Public Reference Room at 100 F
Street, N.E., Washington D.C., 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the Public Reference Room. The documents may also be
obtained from the website maintained by the SEC at http://www.sec.gov, which
contains reports and other information regarding registrants that file
electronically with the SEC. Gafisa and Tenda have also filed certain documents
with the Comissão de Valores Mobiliários, the Brazilian securities commission,
which are available on the CVM’s website at http://www.cvm.gov.br. In addition,
documents (including any exhibits) filed with the SEC or CVM by Gafisa or Tenda
will be available free of charge from the Investor Relations offices of Gafisa
S.A., located at Avenida Nações Unidas, 8501, 19th floor, São Paulo, SP, Brazil
05425-070, tel: 011-55-11-3025-9305, and of Construtora Tenda S.A., located at
Av. Eng. Luis Carlos Berrini, 1.376, 9th floor, Edifício Torre Nações Unidas,
Brooklin Paulista, São Paulo, SP, Brasil 04571-000, tel: 011-55-11-3040-6426.
SHAREHOLDERS OF TENDA ARE URGED TO READ
THE REGISTRATION STATEMENT AND ANY OTHER RELEVANT DOCUMENTS FILED BY GAFISA WITH
THE SEC, INCLUDING THE PROSPECTUS, BECAUSE THEY CONTAIN IMPORTANT INFORMATION
ABOUT THE PROPOSED TRANSACTION.
This
communication shall not constitute an offer to sell or the solicitation of an
offer to buy, nor shall there be any sale of securities in any jurisdiction in
which such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of such jurisdiction.