27 September 2022

GSW Immobilien AG: Delisting of GSW shares intended, major shareholder has announced public delisting tender offer, GSW to support such public tender offer

Disclosure of an inside information acc. to Article 17 MAR of the Regulation (EU) No 596/2014

NOT FOR DISTRIBUTION OR RELEASE, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, CANADA, AUSTRALIA OR JAPAN OR ANY OTHER JURISDICTION IN WHICH THE DISTRIBUTION OR RELEASE WOULD BE UNLAWFUL. OTHER RESTRICTIONS ARE APPLICABLE. PLEASE SEE THE IMPORTANT NOTICE AT THE END OF THE AD-HOC RELEASE.

Berlin, Germany, September 26, 2022 – Today, the management board of GSW Immobilien AG (the “Company“) (ISIN DE000GSW1111 / WKN GSW111) with the approval of the supervisory board and in consultation with Deutsche Wohnen SE (“Deutsche Wohnen“), which holds approx. 94.02 % of the shares of the Company (“GSW Shares“), has resolved to delist the GSW Shares for trading in the Regulated Market of the Frankfurt Stock Exchange after publication of a public delisting offer by Deutsche Wohnen. To this end, GSW – upon approval by the supervisory board – today concluded a delisting agreement with Deutsche Wohnen. In the delisting agreement, Deutsche Wohnen has committed itself to making a public tender offer to the GSW shareholders to purchase their shares at the legal minimum price. The price of this tender offer will be determined by way of an enterprise valuation by Ebner Stolz GmbH & Co. KG Wirtschaftsprüfungsgesellschaft Steuerberatungsgesellschaft with its registered seat in Stuttgart („Ebner Stolz“), that is mandated as an independent evaluator to perform a company valuation of the Company pursuant to Section 5 para. 4 of the German WpÜG Offer Ordinance (WpÜG-Angebotsverordnung) (the “Company Valuation”).

In light of the overall circumstances, the management board and the supervisory board are of the opinion that the conclusion of a delisting agreement is in the interest of the Company. This is based on the fact that, since the consummation of the business combination between Deutsche Wohnen and Vonovia SE („Vonovia“) in October 2021, the public equity capital market has continued to lose significance as a financing option for the Company as a group company of the Vonovia group. Furthermore, since the voluntary public tender offer by Vonovia to all shareholders of the Company on September 21, 2021, the free float in the Company has further been reduced to approx. 0.087 %, and no relevant trading activity in the GSW Shares is taking place. Against this background, the Company has – subject to a detailed examination of the tender offer document and in consideration of its statutory obligations – agreed to support the public delisting offer. The management board and the supervisory board will issue a reasoned statement pursuant to Sec. 27 German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz) regarding the public delisting offer.

The decision on the withdrawal of admission of the shares will be taken by the management of the Frankfurt Stock Exchange. The management board expects the withdrawal, in accordance with the rules of the Frankfurt Stock Exchange, to come into effect three trading days after publication of the withdrawal which shall occur immediately following the decision of the Frankfurt Stock Exchange. After effectiveness of the withdrawal, GSW Shares will no longer be admitted for trading or be traded on a domestic regulated market or on a comparable foreign market.

03 September 2022

SLM and Nikon enter into Investment Agreement – Nikon to launch public takeover offer for SLM

Corporate News

- SLM enters into Investment Agreement with Nikon to further enhance SLM’s leadership position in Additive Manufacturing

- Nikon to launch all cash public takeover offer for SLM at EUR 20 per share, representing a premium of 75% to the undisturbed closing price as of September 1st 2022

- Key shareholders Elliott, ENA and Hans J. Ihde support the takeover offer

- Limited customary closing conditions with no acceptance threshold

- SLM resolved 10% capital increase fully subscribed by Nikon at the takeover offer price

- SLM management and supervisory boards welcome and support the proposed transaction


Lübeck, Germany – September 2, 2022. Today, SLM Solutions Group AG ("SLM Solutions", "SLM" or the "Company") and Nikon Corporation (“Nikon”) have entered into an Investment Agreement in relation to a voluntary public takeover offer that Nikon intends to launch for all outstanding shares of SLM at a cash consideration of EUR 20 per share.

The EUR 20 offer price represents a 75% premium to the XETRA closing price of SLM’s shares on September 1st, 2022, and an 84% premium over the last 3 month volume-weighted average price of SLM’s share of EUR 10.89.

Nikon has obtained binding commitments from SLM’s key shareholders Elliott Advisors UK Limited (Cornwall), ENA Investment Capital and SLM’s founder Hans J. Ihde to support the transaction by way of irrevocable tender commitments comprising shares and all SLM convertibles bond securities to held.

The tender takeover offer has a limited set of closing conditions. Completion is contingent on foreign investment control clearance and certain further customary conditions. The transaction will not be subject to a minimum acceptance threshold and will not require anti-trust approvals.

The SLM management and supervisory boards welcome and, subject to a review of the offer document, fully support the transaction and the takeover offer. Also, the members of the SLM management and supervisory boards have committed to tender their shares into the takeover offer. SLM expects the takeover offer to commence at the end of September or early October 2022.

Concurrently to signing of the Investment Agreement but independent of the closing of the takeover offer, SLM today also resolved a 10% capital increase without subscription rights which Nikon fully subscribes to at the takeover offer price. The gross proceeds to SLM will be approximately EUR 45.4 million and will be used for the partial repayment of convertible bonds 2017/2024 as well as for funding ongoing business operations.

With SLM becoming part of Nikon’s digital manufacturing strategy, SLM management is convinced this transaction will further enhance SLM’s ability to stay at the forefront of metal Additive Manufacturing and enhance its leadership position in delivering superior products and solutions to its customers.

SLM’s CEO Sam O’Leary commented: “Nikon has more than a century of history in developing cutting-edge opto-electronic technology and precision equipment. I am excited for SLM to partner with Nikon to further extend our technology leadership position. We believe this transaction and partnership is very beneficial for all our stakeholders – shareholders, employees and customers alike.”

Toshikazu Umatate, CEO of Nikon said: “By acquiring SLM Solutions, Nikon is taking an important step towards our Vision 2030. We are focused on digital manufacturing as a growth driver and will create value through the promising market of metal additive manufacturing for our stakeholders. 3D Printing will revolutionize mass-production by enabling our clients to manufacture highly complex parts, reduce cycle time, carbon emissions, energy costs and waste. Nikon and SLM Solutions share the vision that our technology-driven innovation will transform the future of manufacturing. This acquisition will be key to growing our digital manufacturing business.”

Nabeel Bhanji, senior portfolio manager on behalf of Elliott Advisors (UK) Limited, an affiliate of Elliott Investment Management L.P. said: “Elliott is pleased to have played a key role in SLM’s journey over the past six years, helping the Company stay at the forefront of Additive Manufacturing innovation and product development. We are confident that Nikon, with its excellence in manufacturing and deep experience in technology, will further the innovation and distribution of SLM’s market-leading products.”

While SLM will play an integral role in Nikon’s digital manufacturing strategy, Nikon committed not to initiate the conclusion of a domination agreement for at least three years. The Company will continue to be led by its current senior management team.

Citigroup Global Markets Europe AG is acting as exclusive financial advisor to SLM Solutions, Gleiss Lutz is acting as legal counsel to the Company and Sullivan & Cromwell is acting as legal advisor to SLM’s supervisory board.

Analyst Call on 2 September 2022
In relation to the proposed transaction SLM Solutions Group AG will hold an investor and analyst call today, 2 September 2022, at 2 p.m. CET. The presentation can be followed online via livestream: https://www.webcast-eqs.com/slm20220902

About Nikon

Nikon has been a pioneer in optical technology markets worldwide since its inception in 1917. Today, utilizing advanced technologies, we offer a wide range of products and solutions from digital cameras and binoculars to industrial precision equipment such as FPD and semiconductor lithography systems, microscopes and measuring instruments as well as for the healthcare field. In the future, we will take advantage of Nikon's core technologies to generate new core pillars of profit including the material processing business; Nikon strives to be a leading company in precision and optics fields that realizes sustainable growth of enterprise value in medium- to long-term.

Nikon is a publicly traded company, headquartered in Japan, with offices around the world.

Further information is available at www.nikon.com

About SLM Solutions

SLM Solutions is a global provider of integrated metal additive manufacturing solutions. Leading the industry since its inception, it continues to drive the future of metal AM in every major industry with its customers’ long-term success at its core. SLM Solutions is home to the world’s fastest metal additive manufacturing machines boasting up to 12 lasers and enabling build rates of up to 1000ccm/h. With a portfolio of systems to suit every customer's needs, along with its team of experts closely collaborating at every stage of the process, SLM Solutions leads the way on return on investment with maximum efficiency, productivity, and profitability. SLM Solutions believes that additive manufacturing is the future of manufacturing and has the desire and capability to take its customers there – right now.

SLM Solutions is a publicly-traded Company headquartered in Germany, with offices in Canada, China, France, India, Italy, Japan, Singapore, South Korea, and the United States.

Further information is available on www.slm-solutions.com

SLM Solutions Group AG: Increase of the company’s share capital by 10% and conclusion of investment agreement with Nikon

Disclosure of inside information pursuant to Article 17 of the Regulation (EU) No 596/2014

NOT FOR DIRECT OR INDIRECT PUBLICATION, DISTRIBUTION OR RELEASE IN OR INTO THE UNITED STATES OF AMERICA, AUSTRALIA, CANADA, JAPAN OR ANY OTHER JURISDICTION IN WHICH SUCH PUBLICATION, DISTRIBUTION OR RELEASE WOULD BE UNLAWFUL

Luebeck, September 2, 2022 – Today, the management board of SLM Solutions Group AG (ISIN shares: DE000A111338, “SLM Solutions” or the “Company”) resolved, with the consent of the supervisory board, to increase the Company’s registered share capital by approx. 10% against cash contributions, making partial use of the Authorized Capital 2022 (the “Capital Increase”). The statutory subscription right of the existing shareholders will be excluded in accordance with Section 203 AktG in conjunction with Section 186(3) sentence 4 AktG. The 2,270,172 new shares will be subscribed for exclusively by Nikon AM. AG (“Nikon AG”) at a price of EUR 20.00 per new share. The Company and Nikon AG have signed a subscription agreement to that effect today.

The Company will receive gross proceeds amounting to approx. EUR 45.4 million from the Capital Increase, which are intended to be used to fund the partial early repayment of convertible bonds due on October 11, 2022 in an amount of EUR 29.8 million as well as ongoing business operations. The new shares, which will carry full dividend rights as of January 1, 2022, are expected to be issued and included in the existing quotation of the Company’s shares on the regulated market (Prime Standard) of the Frankfurt Stock Exchange by around mid-September 2022.

Separately, based on a resolution passed by the Company’s management board with the consent of the supervisory board today, the Company has entered into an investment agreement with Nikon AG and Nikon Corporation (collectively, “Nikon”), one of the world’s leading suppliers of products and solutions based on advanced opto-electronics and precision technologies, supporting the long-term growth and business strategy of SLM Solutions. In this context, Nikon AG has announced its intention to launch a voluntary public takeover offer (the “Takeover Offer”) for all outstanding shares of the Company at a price of EUR 20.00 per share (representing a premium of 75% to the XETRA closing price on September 1, 2022 and a premium of 84% on the volume-weighted average share price during the three months prior to the announcement of the Takeover Offer).

In the investment agreement, the Company and Nikon agreed on the terms and conditions of the Takeover Offer. Subject to their fiduciary duties and the review of the offer document to be published by Nikon, the Company’s management board and supervisory board have agreed to support the Takeover Offer, as they consider it to be in the best interest of the Company, its shareholders, employees and other stakeholders. In the investment agreement, Nikon gave assurance to preserve the existing structure and sites of the SLM Solutions Group. Nikon would also welcome the current management board members to continue their role in the Company.

The Takeover Offer will be conditional upon certain required foreign investment clearances, but will not provide for any minimum acceptance threshold. Nikon AG has informed the Company that it has already secured irrevocable undertakings from the Company’s key shareholders Elliott Advisors UK Limited (Cornwall), ENA Investment Capital and SLM’s founder Hans. J. Ihde (Ceresio). Therefore, Nikon has secured already more than 50% of the Company’s share capital on a fully diluted basis.

The final terms and conditions of the Takeover Offer will be set out in the offer document, the publication of which by Nikon is subject to approval by the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht, BaFin). Within two weeks after the publication of the offer document, the Company’s management board and supervisory board will, in accordance with their statutory duties, issue a reasoned opinion, which will be published on the Company’s website under www.slm-solutions.com/investor-relations-slm/.

In addition to the Takeover Offer to be made to the Company’s shareholders, Nikon AG informed the Company that it intends to offer all holders of the Convertible Bonds 2020/2026 (ISIN DE000A289N86), 2021/2026 (ISIN DE000A3H3HP1) and 2022/2026 (ISIN DE000A3MQV02) issued by the Company to acquire their bonds. The terms and conditions of such offer will be set out in a separate offer document to be published by Nikon AG.

Assuming consummation of the Takeover Offer, the holders of the Convertible Bonds 2017/2024 (ISIN DE000A2GSF58) will, due to the acquisition of control by Nikon, have a put right in accordance with the terms and conditions of these bonds, entitling them to declare their bonds due and request their repayment at the principal amount plus accrued interest on an effective date to be set by the Company for that purpose.

18 August 2022

Petro Welt Technologies AG: Joma announces cash settlement price in case of squeeze-out pursuant to Section 1 (1) of the Austrian Squeeze-out Act

AD-HOC ANNOUNCEMENT

Vienna, August 16, 2022

Petro Welt Technologies AG (“PeWeTe”) announced on July 26, 2022 that Joma Industrial Source Corp. (“Joma”) intends to submit a written request for squeeze-out pursuant to Section 1 (1) of the Austrian Squeeze-out Act (Gesellschafter-Ausschlussgesetz, GesAusG), provided that (a) the extraordinary general meeting of PeWeTe on August 16, 2022 resolves to approve the sale of the participations in Russia in a way that is valid, binding and not subject to challenge or judicial review, or any such challenge or judicial review has been withdrawn, rejected, or adjudicated in favor of the Company, and (b) the sale of the participations in Russia has been validly entered into, all necessary regulatory approvals have been granted, and it has been closed.

In addition to this announcement, Joma has today informed the Management Board of PeWeTe that the amount of the cash settlement price offered by Joma in the event of such squeeze-out would be EUR 2.20 per share. The share price has been calculated as if the sale had been completed. The share price was calculated as if the sale of the participations in Russia had not been carried out.

The initiation of the squeeze-out procedure further requires that Joma submits a formal, written request for squeeze-out pursuant to Section 1 (1) GesAusG.

About Petro Welt Technologies AG

Petro Welt Technologies AG, headquartered in Vienna, is one of the leading, early established OFS companies in Russia and the CIS, specializing in services to increase the productivity of new and existing oil and gas formations.

03 August 2022

Appraisal proceedings on the squeeze-out at VTG Aktiengesellschaft: Hearing date on 10 November 2022

by Attorney-at-law Martin Arendts, M.B.L.-HSG

In the appraisal proceedings regarding the squeeze-out of the minority shareholders of the wagon lessor VTG Aktiengesellschaft, the LG Hamburg has set a hearing date for 10 November 2022, 14:00 hrs. At the hearing, the expert auditors are to be heard on their audit report dated 20 July 2021.

The joint representative and the applicants have until 15 September 2022 to submit their comments on the present response to the application.

The main shareholder Warwick Holding GmbH, Frankfurt am Main, only came above the threshold of 95% of the shares required for a squeeze-out via a so-called securities loan from the Joachim Herz Foundation (approx. 15% of the shares). Warwick is an investment vehicle of Morgan Stanley Infrastructure Partners ("MSIP") and OMERS Infrastructure (on behalf of OMERS, the pension plan for municipal employees in the Canadian province of Ontario). 

MSIP and the Joachim Herz Foundation sold their VTG shareholding shortly after the squeeze-out to an acquirer group led by the New York-based financial investor Global Infrastucture Partners (while OMERS remains a shareholder). In this resale, VTG was valued significantly higher than in the squeeze-out. According to press reports, the purchase was made at a valuation of the company of around EUR 7 billion (including approx. EUR 3 billion in liabilities).

Hamburg Regional Court, Case No. 403 HKO 68/21
Rolle, T. et al. ./. Warwick Holding GmbH
70 applicants
joint representative: RA Dr. Steffen Kraus, CausaConcilio Koch & Partner mbB Rechtsanwälte, 24114 Kiel, Germany
Agents of the respondent, Warwick Holding GmbH:
Sullivan & Cromwell LLP, 60311 Frankfurt am Main, Germany

Appraisal proceedings with regard to the merger squeeze-out at MAN SE: Hearing on 8 and 9 March 2023

by Attorney-at-law Martin Arendts, M.B.L.-HSG

In the appraisal proceedings regarding the transfer of the shares of the minority shareholders of MAN SE to the majority shareholder TRATON SE, which belongs to the VW Group, the Munich Regional Court I has set a date for the oral hearing for 8 March 2023, 10:30 a.m., with a continuation on 9 March 2023, 9:00 a.m.. At this hearing, the court-appointed settlement auditors, Ms Susann Ihlau and Mr Hendrik Duscha of the auditing firm Mazars, are to be heard.

The applicants and the joint representative may comment on the statement of defence until 9 December 2022.

LG Munich I, Case No. 5 HK O 12085/21
Mähner, M. et al ./. TRATON SE
121 applicants
Joint representative: Attorney-at-law Daniela Bergdolt, 80639 Munich, Germany
Representative of the respondent, TRATON SE:
Freshfields Bruckhaus Deringer, 60322 Frankfurt am Main, Germany

27 July 2022

Shareholders´ association SdK on ADLER Real Estate: Shareholders must become active

Announcement by SdK Schutzgemeinschaft der Kapitalanleger e.V. (convenience translation)

In addition to the Russian securities, we were also concerned with the events at the companies of the Adler Group. Most recently, especially ADLER Real Estate. The pearl of the Adler Group was deprived of its liquidity by the majority shareholder Adler Group S.A. in recent months. Initially, a loan in the amount of 265 million was extended to Adler Group S.A. shortly before the turn of the year. However, the associated loan agreement was not signed until the end of March 2022! Then, at the end of June, the purchase of 1,400 Berlin apartments was announced. Gross valuation of the apartments: 326 million euros, i.e. around 233,000 euros per apartment. An ambitious price. Why the subsidiary bought the apartments from the parent company is not clear to us. After all, the ADLER Real Estate shareholders are supposed to approve the sale of almost all apartments in the portfolio of ADLER Real Estate AG at the company's annual general meeting on August 31, 2022. This gives the impression that the purchase primarily served the interests of the majority shareholder in order to obtain further liquidity in the short term and that no external third party could be found who was willing to pay a comparable price. Together with the unresolved allegations from the KPMG report on the special investigation at the Adler Group, this all makes a very bad impression. Corporate management to forget. We want to counter this and, with regard to the announced exclusion of the free shareholders of ADLER Real Estate, initiate a special investigation to ensure that the free shareholders are paid a fair compensation, including the equivalent value of any claims for damages against (former) board members and external third parties. In doing so, we are dependent on the assistance of the shareholders of ADLER Real Estate. You can find out how you can help us here (Adler-Gruppe | SdK)

Requested squeeze-out under takeover law for Biotest ordinary shares: hearing before the District Court of Frankfurt am Main on October 27, 2022

by Attorney-at-Law Martin Arendts, M.B.L.-HSG

The Biotest majority shareholder Grifols S. A., Barcelona, had applied to the District Court of Frankfurt am Main pursuant to Section 39a of the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz, WpÜG), 

the ordinary shares of Biotest AG, (ISIN DE0005227201), which it does not already own directly or indirectly, be transferred to the applicant by way of a resolution pursuant to Sections 39a para. 1, sentence 1, 39b para. 5 sentence 3 WpÜG against payment of compensation in the amount of EUR 43.00 per ordinary share.

This squeeze-out under takeover law of the Biotest ordinary shares held by the minority shareholders (which, according to the application, does not affect the preference shares) is to be discussed before the 5th Chamber for Commercial Matters of the District Court of Frankfurt am Main on October 27, 2022. The Biotest minority shareholders involved in the proceedings have until August 11, 2022 to submit their comments. 

District Court of Frankfurt am Main, Case No. 3-05 O 19/22
representative of the applicant Grifols S.A.:
law firm Osborn Clarke, 200359 Hamburg, Germany

Petro Welt Technologies AG: Joma considers squeeze-out of minority shareholders according to Section 1 (1) of the Austrian Squeeze-out Act

Disclosure of an inside information acc. to Article 17 MAR of the Regulation (EU) No 596/2014

Vienna, July 26, 2022

Joma Industrial Source Corp. (“Joma”) holds more than 90% of the shares in Petro Welt Technologies AG (“PeWeTe”) through direct and indirect shareholdings and is therefore deemed to be the principal shareholder pursuant to Section 1 (1) and (2) of the Austrian Squeeze-out Act (Gesellschafter-Ausschlussgesetz, GesAusG).

Joma has today informed the Management Board of PeWeTe of its intention to submit a written request for squeeze-out pursuant to Section 1 (1) GesAusG, provided that (a) the extraordinary general meeting of PeWeTe on August 16, 2022 resolves to approve the sale of the participations in Russia in a way that is valid, binding and not subject to challenge or judicial review, or any such challenge or judicial review has been withdrawn, rejected, or adjudicated in favor of the Company, and (b) if the sale of the participations in Russia has been validly entered into, all necessary regulatory approvals have been granted, and it has been closed. The squeeze-out of the minority shareholders shall take place at a share price calculated as if the sale of the participations in Russia had not been carried out and shall be determined by Joma on the basis of a group valuation made by Grant Thornton Austria GmbH Wirtschaftsprüfungs- und Steuerberatungsgesellschaft.

About Petro Welt Technologies AG


Petro Welt Technologies AG, headquartered in Vienna, is one of the leading, early established OFS companies in Russia and the CIS, specializing in services to increase the productivity of new and existing oil and gas formations.

01 July 2022

Cash compensation for the squeeze-out at HypoVereinsbank to be decided by the Bavarian Supreme Court

by Attorney-at-Law Martin Arendts,  M.B.L.-HSG

In the appraisal proceedings relating to the squeeze-out at HypoVereinsbank (HVB) registered in 2008, the Munich Regional Court I (Landgericht München I) dismissed the applications for judicial review in the first-instance decision announced on June 22, 2022. Several applicants have filed appeals against this decision. Contrary to the opinion of the Regional Court, there are no de minimis limits, if only for constitutional reasons (requirement of "full" compensation for excluded minority shareholders), certainly not in the amount of 5% or 10% (for sold shareholdings), as assumed by the Regional Court. Therefore, the appropriate cash compensation is to be set at a higher level.

The Bavarian Supreme Court (Bayerisches Oberstes Landesgericht), which is now responsible for appeals in appraisal proceedings, will decide on these appeals in the second instance (and probably also in the final instance if it does not refer the matter to the Federal Court of Justice or allow an appeal on points of law - for example with regard to the de minimis limit assumed by the Regional Court and assessed differently by several Higher Regional Courts).

Although the Munich Regional Court I considered the cash compensation offered to the HVB minority shareholders to be too low, it did not believe that a deviation of less than 5% was sufficient to establish that the original cash compensation was inappropriate, given the predictive nature of any company valuation.

The court also assumed that the shareholdings sold before the squeeze-out were undervalued, by EUR 208 million in the case of International Moscow Bank and by EUR 182 million and EUR 49 million in the case of two asset management companies. The Regional Court also considered the purchase price set for Bank Austria Creditanstalt to be too low. As this was a contractual agreement in which the contracting parties had greater leeway, the court set the threshold for the assumption of a disadvantage to be compensated at 10%, which was higher than in the case of the direct structural measure. With a deviation of 9.18%, this limit had not been exceeded.

Munich Regional Court I, decision of June 22, 2022, Case No. 5 HK O 16226/08
SdK Schutzgemeinschaft der Kapitalanleger e.V. et al. v. UniCredit S.p.A.
302 applicants (originally)
joint representative: RA/WP/StB Walter L. Grosse, 80333 Munich, Germany
Procedural representatives of the respondent, UniCredit S.p.A.:
Freshfields Bruckhaus Deringer, 60322 Frankfurt am Main, Germany

Purchase offer for shares of Halloren Schokoladenfabrik Aktiengesellschaft at EUR 4.20

Magrath Holdings S.à r.l., 1471 Luxembourg, Grand Duchy of Luxembourg, has made an offer to the shareholders of Halloren Schokoladenfabrik Aktiengesellschaft, Halle (Saale), to acquire all registered no-par value shares of Halloren Schokoladenfabrik Aktiengesellschaft against payment of a cash consideration in the amount of EUR 4.20 per share. The acceptance period runs from June 30, 2022, 0:00 hours (CEST) to December 30, 2022, 24:00 hours (CET).

The Offer Document can be downloaded from the Bidder's website at www.halloren-angebot.de

In the Offer Document, the Bidder points out that it already holds a (partly indirect) participation in Halloren Schokoladenfabrik Aktiengesellschaft in the amount of approx. 86.2%. Thus, the Bidder has (partly indirectly) the necessary voting and capital majority to be able to enforce important structural measures under company law with regard to the Target Company at its shareholders' meeting.

German Federal Court of Justice to decide on the takeover of Deutsche Postbank by Deutsche Bank: Was the consideration for Postbank minority shareholders appropriate?

(convenience translation)

Press Release No. 100/2022

The II. Zivilsenat (Civil Senate), which is responsible for corporate law, once again has to decide whether the consideration granted by Deutsche Bank AG to the shareholders of Deutsche Postbank AG for their shares was appropriate.

Facts:


The plaintiffs in the two proceedings held shares in Deutsche Postbank AG. On October 7, 2010, the defendant, Deutsche Bank AG, published a (voluntary) takeover offer pursuant to section 29 (1) of the Wertpapiererwerbs- und Übernahmegesetz (WpÜG - German Securities Acquisition and Takeover Act) at a price of €25 per share, which the plaintiffs accepted. The plaintiffs consider the takeover offer to be inadequate and are therefore demanding payment of a differential amount under section 31 WpÜG or damages for failure to make a mandatory offer under section 35 (2) WpÜG.

On September 12, 2008, Deutsche Bank AG entered into an agreement ("Original Agreement") with Deutsche Post AG on the acquisition of a 29.75% minority shareholding in Postbank at a price of EUR 57.25 per share. In addition, Deutsche Bank AG received an option to acquire a further 18 % block of shares in Postbank for €55 per share, and Deutsche Post AG received a put option to sell its remaining stake in Postbank of 20.25 % plus one share to Deutsche Bank AG at a price of €42.80 per share. After Deutsche Bank AG and Deutsche Post AG had initially agreed at the end of December 2008 to postpone the execution of the original acquisition agreement due to changed market conditions, they concluded a "supplemental agreement" on January 14, 2009, under which the acquisition of Postbank was to take place in three steps: First, Deutsche Bank AG was to acquire 50 million shares (= 22.9% of Postbank's share capital) at a price of €23.92 per share, then 60 million shares (= 27.4% of the share capital) via a mandatory exchangeable bond maturing on February 25, 2012 at a price of €45.45 per share. The Company was able to acquire a further 26,417,432 shares (= 12.1% of the capital stock) under call and put options at a price of €48.85 per share for the call option and €49.42 each for the put option. The options were to be exercisable between February 28, 2012 and February 25, 2013.

The plaintiffs are of the opinion that Deutsche Bank AG should already have published a mandatory offer pursuant to § 35 (2) WpÜG at a price of €57.25 per share on the basis of the original agreement because this agreement contained an in rem acquisition obligation on the part of the defendant in excess of a 29.75% shareholding and thus resulted in the defendant acquiring control pursuant to § 30 (1) no. 5 WpÜG. In part, they believe that the defendant should in any case have published a mandatory offer at a price of €49.42 (put option), €48.85 (call option) or €45.45 (mandatory exchangeable bond) on the basis of the supplementary agreement.

Course of proceedings to date:

In proceedings II ZR 9/21, the Regional Court dismissed the action. The Higher Regional Court dismissed the plaintiff's appeal. On appeal by the plaintiff, the Federal Court of Justice reversed the judgment of the Higher Regional Court and referred the case back to the Higher Regional Court for a new hearing and decision. The Higher Regional Court took evidence and again dismissed the plaintiff's appeal.

In the proceedings II ZR 14/21, the plaintiffs, who had accepted the defendant's offer, were overwhelmingly successful with their claims. On appeal by the defendant, the Higher Regional Court dismissed the actions.

In justification, it was stated in each case that the plaintiffs had not proven that Deutsche Bank AG had already acquired control of Postbank prior to the publication of the (voluntary) takeover offer on October 7, 2010, because voting rights from the shares held by Deutsche Post AG were attributable to it in accordance with section 30 of the Wertpapiererwerbs- und Übernahmegesetz (WpÜG - German Securities Acquisition and Takeover Act). In particular, there was no "acting in concert" within the meaning of section 30 (2) WpÜG. § In particular, there was no "acting in concert" within the meaning of section 30 (2) of the WpÜG between Deutsche Bank AG and Deutsche Post AG. Deutsche Bank AG was therefore not obliged to publish a mandatory offer in accordance with section 35 of the Wertpapiererwerbs- und Übernahmegesetz (WpÜG - German Securities Acquisition and Takeover Act), with the result that the plaintiffs are not entitled to payment of any difference to the consideration offered of EUR 25 per share.

With their appeals, which were allowed by the Court of Appeal with regard to the legal questions in connection with the interpretation of the attribution provisions of § 30 (2) WpÜG, the plaintiffs are continuing to pursue their claim.

Lower instances:

II ZR 9/21:

Cologne Regional Court - Judgment of July 29, 2011 - 82 O 28/11
Cologne Higher Regional Court - Judgment of October 31, 2012 - 13 U 166/11
BGH - Judgment of July 29, 2014 - II ZR 353/12
Cologne Higher Regional Court - Judgment of December 16, 2020 - 13 U 166/11 and

II ZR 14/21

Cologne Regional Court - Judgment of October 20, 2017 - 82 O 11/15
Cologne Higher Regional Court - Judgment of December 16, 2020 - 13 U 231/17

25 June 2022

Adler Group S.A. sells portfolio in Berlin to ADLER Real Estate AG

Corporate News

- Transaction at fair value of EUR 326 million

- Next step towards further optimization of corporate structures

Luxembourg, 24 June 2022 – Adler Group S.A. ("Adler Group") today announced the sale of a portfolio of residential properties in Berlin to ADLER Real Estate AG ("ADLER Real Estate"), following the approval of the Board of Directors of Adler Group as well as the Supervisory Board of ADLER Real Estate. The portfolio comprises around 1,400 residential units in Berlin and has a market value of EUR 326 million according to the latest evaluation by CBRE as of 31 March 2022. The consideration for Adler Group considering minority interests, financial liabilities as well as deferred taxes will be approximately EUR 275 million. The transaction is not subject to any conditions and will be completed without delay.

The transaction relates to the optimization of processes and structures within the Adler Group and its subsidiaries and is therefore in the best interests of the companies. The Adler Group is currently undergoing a program to improve its transparency and corporate governance following allegations made by a short seller.

After the allegations had become known and with the start of the reorganization of the company initiated when Prof. Dr. A. Stefan Kirsten assumed his role as a Chairman of the Board of Directors of Adler Group on 16 February 2022, a comprehensive package of measures was implemented to improve transparency and corporate governance. This included the conclusion of the review by KPMG Forensic with the requirement to submit audited consolidated financial statements of Adler Group and ADLER Real Estate for the 2021 financial year by 30 April 2022, the disclosure of the findings of the review and their reflection in the consolidated financial statements, and the comprehensive communication of the structural and procedural measures to improve transparency and corporate governance. This also includes the appointment of Thomas Echelmeyer as interim CFO on a consultancy basis, the downsizing and effective staffing of the board of directors' committees, the strengthening of the compliance functions with the support of an external consulting firm, and further steps to integrate the Adler Group.

With a share of 96.72 %, the Adler Group is the majority shareholder of ADLER Real Estate AG.

Resale of wagon hire company VTG after squeeze-out?

by Attorney-at-law Martin Arendts, M.B.L.-HSG

According to media reports, the investment company Global Infrastructure Partners, which specialises in infrastructure investments, is on the verge of a multi-billion euro purchase of the wagon hire company VTG. Global Infrastructure Partners is close to an agreement with the infrastructure arm of US bank Morgen Stanley, Morgan Stanley Infrastructure Partners ("MSIP"), on a takeover that could value VTG at more than EUR 5 billion (significantly more than set in the squeeze-out), news agency Bloomberg reported. However, there would be other interested parties.

VTG's main shareholder Warwick Holding GmbH, Frankfurt am Main, had pursued the squeeze-out of VTG's minority shareholders after a delisting. Warwick is an investment vehicle of Morgan Stanley Infrastructure Partners and OMERS Infrastructure (on behalf of OMERS, the pension plan for municipal employees in the Canadian province of Ontario). Warwick only came above the threshold of 95% of the shares required for a squeeze-out via a so-called securities loan from the Joachim Herz Foundation (approx. 15% of the shares). 

appraisal proceeding with regard to the squeeze-out at VTG:
Regional Court of Hamburg, case no. 403 HKO 68/21
Rolle, T. et al ./. Warwick Holding GmbH
70 applicants
joint representative: Attorney-at-law Dr. Steffen Kraus, CausaConcilio Koch & Partner mbB Rechtsanwälte, 24114 Kiel, Germany
Agents of the respondent, Warwick Holding GmbH:
Sullivan & Cromwell LLP, 60311 Frankfurt am Main, Germany

22 June 2022

Appraisal proceedings on the squeeze-out at HypoVereinsbank: no increase in cash compensation in the first instance

Announcement of the Regional Court Munich I of 22 June 2022 (convenience translation):

The 5th Commercial Chamber of the Regional Court Munich I today rejected by decision the applications for the determination of a higher cash compensation than € 38.26 per share on the occasion of the squeeze out at Bayerische Hypo- und Vereinsbank AG (Case No. 5 HK O 16226/08).

On 26/27 June 2007, the general meeting of HypoVereinsbank AG had decided to transfer the shares of the minority shareholders to its majority shareholder UniCredito S.p.A. against a cash compensation of € 36.28 per share (squeeze out). Around 300 applicants had initiated appraisal proceedings against this in order to have the appropriateness of this cash compensation owed by UniCredito as the main shareholder reviewed by the courts.

The chamber under its presiding judge Dr Helmut Krenek, which specialises in questions of company law and thus also in appraisal proceedings, issued a very comprehensive 350-page decision explaining why it considered the cash compensation to be appropriate. In doing so, the chamber had to deal not only with the valuation of Bayerische Hypo- und Vereinsbank AG, but above all with the value of six other banks from Central and Eastern Europe. After HypoVereinsbank had sold its shares in Bank Austria Creditanstalt AG to UniCredito, it also had to be examined whether the purchase price of approximately € 12.5 billion paid to HypoVereinsbank as of 25 October 2006 had been agreed to be too low; if this had been the case, HypoVereinsbank would have been entitled to claim compensation for disadvantages against UniCredito, which de facto controlled it through its majority shareholding. The same reviews had to be carried out by the Board with regard to the sale of International Moscow Bank to Bank Austria Creditanstalt for a purchase price of € 984 m, the sale of HVB Bank Ukraine to a subsidiary of UniCredito for a price of € 83 m, and the sale of registered shares held by HypoVereinsbank to HVB Bank Latvia for approximately € 75 m. HVB Bank Latvia also acquired registered shares from HypoVereinsbank for a purchase price of € 75 m. The latter also acquired from HypoVereinsbank its branches in Vilnius for € 10.67 million and in Tallinn for € 71.582 million. The proceedings also dealt with the contribution of the investment banking business of the UniCredito Group to HypoVereinsbank by way of a capital increase against contribution in kind with a value of € 2.025 billion as well as the appropriateness of the prices for the sale of several asset management subsidiaries of HypoVereinsbank to subsidiaries of UniCredito.

In order to assess the appropriateness of the respective company valuations and purchase prices, the chamber consulted two experts, who provided a total of four expert opinions comprising more than 1,500 pages. In addition, the chamber heard the experts for a total of about 17 hours on two days to explain their expert opinions.

On the basis of this extensive taking of evidence, the chamber came to the conclusion that the valuation of International Moscow Bank was too low by € 208 million and the valuation of two asset management companies was too low by € 182 million and € 49 million respectively, which justified corresponding claims by HypoVereinsbank for compensation for disadvantages. In the case of International Moscow Bank, the planning for this bank was clearly too pessimistic, resulting in a significantly higher enterprise value. Since the valuation of the banks' sales transactions - i.e. also those of International Moscow Bank and HVB Bank Ukraine, which are based in Russia and Ukraine - was based on the reporting date of 25 October 2006, the war in Ukraine could not play a role for the Chamber.

In the case of Bank Austria Creditanstalt, the Board did indeed consider the purchase price to be too low; it determined a value of € 13.666 billion for the share held by HypoVereinsbank. However, since the determination of any company value is directed towards the future and therefore depends on a large number of forecasts to be made on the reference date, there can be no exact, single correct value of a company. In addition, since a contractual agreement had to be assessed here, in which the contracting parties had greater leeway, the board drew the line above which a compensable disadvantage would have had to be assumed, at 10 %, further than in the case of the direct structural measure. In the case of a deviation of 9.18 %, this limit had not been exceeded.

In the case of HypoVereinsbank itself, whose valuation was based on the reporting date of the Annual General Meeting in June 2007, there were changes in the capitalisation rate because HypoVereinsbank's own risk had to be recognised at a lower level than assumed by the valuation experts and the settlement auditors. This has the same effect on the discounting of future earnings as the adjustment of the volume of listed investments not required for operations, which are recognised as a special value because they are not necessary for maintaining HypoVereinsbank's business operations. Taking further account of the claims to compensation for disadvantages, including the interest accruing thereon, as a special value, this resulted in an enterprise value for HypoVereinsbank of € 32.155 billion, which would result in an arithmetical settlement of € 40.07 per share. This compensation would be 4.73 % higher than the compensation determined by the Annual General Meeting. However, with such a deviation of less than 5 % from the set compensation, the board could not yet determine the inappropriateness of the original cash compensation of € 38.26 per share because of the predictive nature of any company valuation.

The decision is not final yet.

____________

Editor's comment:

Applicants may file an appeal within one month from the date of service of the decision. The Bavarian Supreme Court decides on these appeals in the second (and probably last) instance.

09 June 2022

Planned changes to appraisal procedures in Germany by the draft bill on the EU Directive on Cross-border Conversions, Mergers and Divisions

by Martin Arendts, M.B.L.-HSG, Rechtsanwalt (Attorney-at-Law)

The Directive (EU) 2019/2121 of 27 November 2019 (also known as the Mobility Directive), which entered into force on 1 January 2020, regulates the cross-border division of companies for the purpose of new incorporation and the cross-border change of legal form (in the form of transfer of registered office). In addition, the already existing regulations on cross-border mergers are amended.

The requirements of the EU Conversion Directive must already be implemented in national law by 31 January 2023. On 20 April 2022, the German Federal Ministry of Justice presented a corresponding draft bill (“Referentenentwurf”) on the implementation of the EU Conversion Directive.

The planned law on the implementation of the Conversion Directive also contains new provisions aimed at speeding up appraisal proceedings under the German Act on Appraisal Procedures (SpruchG, Spruchverfahrensgesetz of 12 June 2003) without, according to the Ministry, curtailing the rights of the parties to the proceedings. The simplification potentials uncovered during an evaluation are to be raised with the proposed amendments. In addition, the substantive amendments to the Conversion Act to be made in implementation of the Directive provisions require procedural consequential amendments, for which the draft bill provides for amendments to the Spruchverfahrensgesetz. In addition, there are amendments that are not directly related to the provisions of the Directive, such as the provision for obligatory legal representation in appraisal proceedings, the possibility of a majority settlement and the abolition of the non-interlocutory decision in appraisal proceedings.

The scope of application of appraisal proceedings is expanded. For example, the draft bill standardises a right of withdrawal against cash compensation and a claim for improvement of the exchange ratio in the case of cross-border mergers and divisions in order to protect minority shareholders. The existing unequal treatment of minority shareholders of transferring and acquiring companies in the case of mergers will be ended by making the appraisal proceedings available to both groups of minority shareholders in the future.

An important change in the consideration to be paid is that in the case of mergers involving public limited companies and partnerships limited by shares, the obligation to pay cash can be replaced by the granting of shares as compensation in the case of an inappropriate exchange ratio. According to the Ministry, this protects liquidity and facilitates investments in the course of restructuring.

In procedural terms, the biggest change is likely to be the provision for legal representation in appraisal proceedings in the new section 5 of the Act on Appraisal Procedures (SpruchG): "Before the regional courts, the higher regional courts and a supreme regional court, the parties must be represented by a attorney-at-law. Before the Federal Supreme Court, the parties must be represented by an attorney-at-law admitted to the Federal Supreme Court. Sentence 1 shall not apply to the joint representative."

The new section 11a SpruchG is intended to introduce the possibility of a majority settlement. A settlement, accepted by a majority of the applicants and the joint representative, can be taken into account by the court in its value estimation: "If the defendant, the joint representatives and such applicants who jointly hold at least 90 per cent of the share capital of all applicants agree on a certain compensation, the court may take its amount into account in its estimation."

A new version of section 12 (1) SpruchG is obviously intended to abolish the required decision of non-redress, which in practice has so far only contributed to a prolongation of the proceedings. Thus, the draft bill provides that section 68 (1) FamFG (which provides for a decision of non-redress of the court) will no longer be applied to appraisal proceedings.