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