convenience translation
ISIN DE0007192304 / WKN 719230
By resolution of the Annual Stockholders' Meeting of Schmalbach-Lubeca Aktiengesellschaft on August 30, 2002, the shares of the minority stockholders of the former Schmalbach-Lubeca Aktiengesellschaft, Ratingen (hereinafter "SL"), were transferred to the majority shareholder, Schmalbach-Lubeca Holding GmbH (subsequently merged with AV Packaging GmbH, formerly VAGO Dreiundzwanzigste Vermögensverwaltungs GmbH, Düsseldorf), Düsseldorf (hereinafter referred to as the "majority shareholder" or "respondent"), in accordance with Arts. 327a et seq. AktG, in return for cash compensation of €17.78 per no-par value bearer share in SL (hereinafter referred to as the "squeeze-out"; the minority shareholders whose shares were transferred to the principal shareholder as a result of the squeeze-out hereinafter "SL minority shareholders").
Several SL minority shareholders then initiated appraisal proceedings before the Düsseldorf Regional Court and applied for a higher cash compensation to be determined (hereinafter "applicants"). The Düsseldorf Regional Court ruled on the motions in an order dated October 28, 2019 (Case No. 39 O 133/06 [AktE]) and increased the cash compensation to €21.89 per no-par value bearer share in SL. Several applicants and the defendant filed appeals against this decision. By decision of April 17, 2023 (Case No. I-26 W 2/20 [AktE]), the Düsseldorf Higher Regional Court, rejecting the immediate appeals of several applicants, partially amended and restated the decision of the Düsseldorf Regional Court. Accordingly, the cash compensation was set at EUR 19.04 per SL share.
AV Packaging GmbH published the operative part of the decision of the Düsseldorf Regional Court of October 28, 2019 and the Düsseldorf Higher Regional Court of April 17, 2023 in the Federal Gazette (Bundesanzeiger) on June 2, 2023 pursuant to Section 14 (1) No. 3 SpruchG.
The payment of the difference between the cash compensation paid (€17.78 per no-par value bearer share of SL) and the higher cash compensation set out in the decision of the Düsseldorf Higher Regional Court dated April 17, 2023 (€ 19.04 per no-par value bearer share of SL), i.e. € 1.26 per no-par value bearer share of SL (hereinafter referred to as the "Subsequent Improvement Amount"), as well as the interest payable thereon (the Subsequent Improvement Amount including the interest hereinafter referred to as the "Subsequent Improvement") to the SL minority shareholders will be settled as follows, based on the above explanations and announcements:
1. Technical processing of the rectification
All SL minority shareholders who have not assigned their rights arising from the shares transferred to the principal shareholder to third parties (hereinafter "SL shareholders entitled to subsequent improvement") will receive the subsequent improvement amount of € 1.26 per no-par value share of SL.
The depositary banks are requested to reconstruct the holdings data of the SL shareholders entitled to the rectification amount on the basis of the archived settlement documents to the record date of the Clearstream Banking settlement of the squeeze-out cash settlement at that time, i.e. to November 21, 2002 in the evening.
The reconstruction amount shall bear interest at 2 percentage points above the respective prime rate for the period from November 22, 2002 to August 31, 2009 and at 5 percentage points above the respective prime rate in accordance with section 247 of the German Civil Code for the period from September 1, 2009 to and including the day immediately preceding the payment date (presumably September 6, 2023). The interest amount to be calculated from this is €1.1405 per no-par value share of SL. The SL shareholders entitled to rectification will therefore receive a total rectification payment of €2.4005 per no-par value share of SL.
The main shareholder
Commerzbank AG, Frankfurt am Main,
Frankfurt, to handle the banking and securities aspects of the rectification of the share price.
The SL shareholders entitled to subsequent improvement who still have an account with the bank through which the cash compensation was settled at the time do not need to take any action with regard to the receipt of the subsequent improvement. They will receive a corresponding notification with simultaneous cash credit by their respective credit institution.
Those SL shareholders entitled to subsequent improvement who have changed their bank account in the meantime or who have not received a credit note for subsequent improvement for other reasons within four weeks of publication of this technical information notice are requested to contact as soon as possible the bank through which the cash settlement was processed at the time in connection with the transfer of the no-par value shares of SL to the principal shareholder. To this end, they should provide the bank with their new bank details for forwarding the subsequent payment.
2. Technical implementation of the payment of the rectification for persons who derive their right to rectification from assignments from SL minority shareholders.
Provided that third parties have duly notified and proven to the Principal Shareholder that the right to rectification has been effectively assigned to them by SL Minority Shareholders, the Principal Shareholder shall comply with such assignments. The rectification shall be paid to the assignees. The assignees, who still maintain the account at the credit institution that was specified in the notice of assignment, do not need to take any action with regard to the receipt of the rectification. They shall receive a corresponding notification with simultaneous crediting of funds by their respective credit institution.
Those assignees who have changed their bank details in the meantime are requested to contact Commerzbank AG, GS-OPS, TPS Securities Services Frankfurt, Corporate Events, Helfmann-Park 5, 65760 Eschborn, Germany, as soon as possible and provide their new bank details.
Persons who do not receive the rectification but who wish to rely on a proper assignment of the rectification and accordingly believe that they are entitled to payment of the rectification are requested to contact Commerzbank AG, GS-OPS, TPS Securities Services Frankfurt, Corporate Events, Helfmann-Park 5, 65760 Eschborn. Commerzbank AG will pay out the rectification after consultation with the principal shareholder against appropriate evidence.
3. Technical implementation of the subsequent improvement for persons entitled to the original cash compensation in connection with the conversion to no-par-value shares effected in 2000
Shareholders who have not yet presented their share certificates for exchange as a result of the conversion of SL par value shares to no-par value shares in 1999 and the associated exclusion of the right to securitization can only receive the original cash settlement and the subsequent improvement if they present their share certificates with dividend coupons no. 17 et seq. and renewal coupon (WKN 719 230) at their bank for forwarding to Commerzbank AG, c/o Clearstream Banking AG, Securities Counter Unit, Trakehner Straße 6, 60487 Frankfurt am Main, as exchange agent during normal banking hours. In return for the submission of these effective share certificates, which have already been declared invalid, these shareholders will receive - instead of new SL shares by way of collective safe custody - the original cash settlement and the subsequent improvement in a timely manner, after the usual settlement measures associated with the submission of effective share certificates have been carried out; the submission of effective share certificates that have been declared invalid does not trigger an interest run that is independent of the shares held in collective safe custody.
Shareholders who have already submitted their actual share certificates and received the original cash settlement and who still maintain an account at the credit institution through which the cash settlement was processed at the time do not need to take any action with regard to the receipt of the subsequent settlement. They will receive a corresponding notification with simultaneous cash credit by their respective bank. Shareholders who have changed their bank account in the meantime or who for other reasons have not received a credit note for the rectification payment within four weeks of publication of this technical information notice are requested to contact the bank through which the cash settlement was processed at the time as soon as possible. For this purpose, they should inform the bank of their new bank details for forwarding the rectification payment.
4. Miscellaneous
The payment of the rectification is free of costs, expenses and commissions. The rectification will be paid without deduction of taxes. However, interest is subject to income tax. With regard to the personal tax treatment of the total subsequent payment amount, it is recommended that a tax advisor be consulted.
In the event of any queries, the SL shareholders entitled to the supplementary payment are requested to contact their respective custodian bank.
Munich, August 2023
AV Packaging GmbH
The Management Board
Source: Federal Gazette (Bundesanzeiger) of August 29, 2023
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