2014 | 6 - Morgan Lewis

2014 | 6
Current public tender offers under the German
Securities Acquisition and Takeover Act
takeover monthly 2014 | 6
Going private is the preferred target of current offers
Current offers include an acquisition offer for preference
shares of WMF AG and takeover offers to the shareholders of
Deutsche Steinzeug Cremer & Breuer AG, Update Software AG
and Ehlebracht AG. Takeover offers have been announced to
the shareholders of Homag Group AG, First Sensor AG and
Schumag AG, as well as a mandatory offer to the shareholders
of GSG Group. The takeover offers for shares of Estavis AG and
i:FAO AG, as well as the mandatory offer to the shareholders of
Porta Systems AG, have been completed. The takeover offer to
the shareholders of R. Stahl AG will not be consummated as a
result of not reaching the minimum acceptance threshold.
Current public tender offers under the German
Securities Acquisition and Takeover Act (“WpÜG”):
Offers, results and analyses
Tender offer for the acquisition of preference shares of WMF AG
Finedining Capital GmbH, Munich (“Finedining”), offers the
shareholders of WMF AG, Geislingen an der Steige, to acquire
their non-voting preference no-par value bearer shares in WMF AG
(“WMF Preference Shares”) against a cash consideration of
53 euros per WMF Preference Share until August 11, 2014.
The completion of the offer is subject to certain offer conditions, i.e. the requirement of obtaining merger control clearances
no later than January 31, 2015 and reaching a minimum shareholding of at least 90 percent of the entire subscribed share capital of WMF AG less any treasury shares held by WMF AG at the
time of the expiry of the acceptance period. This minimum shareholding will comprise tendered WMF Preference Shares, shares
of WMF AG (WMF Preference Shares and WMF Ordinary Shares
collectively: “WMF Shares”) already held directly by Finedining,
FIBA Beteiligungs- und Anlage GmbH, Vienna (“FIBA”), or
other persons acting jointly with Finedining or their subsidiaries
(with the exception of WMF AG), and WMF Shares additionally
acquired outside the tender offer by Finedining or persons or their
subsidiaries acting jointly with Finedining (except for WMF AG).
Finedining, an indirect subsidiary of KKR Management LLC,
Wilmington, Delaware, USA, holds approx. 71.56 percent of the
WMF Ordinary Shares and 306,213 WMF Preference Shares.
Finedining (Cayman) Limited, Cayman Islands (“Finedining
Cayman”), one of the indirect shareholders controlling Finedining, has entered into an investment agreement (“Investment
Agreement”) with FIBA, in which FIBA, among other things, has
agreed to sell and transfer its holding of 2,340,000 WMF Ordinary
Shares to Finedining. The Investment Agreement provides that
the parties are only under the obligation to conclude a share purchase and transfer agreement and a separate contribution and
assignment agreement (together, the “Closing Agreements”)
upon fulfillment of certain conditions precedent. After the consummation of the Closing Agreements, Finedining Cayman will
hold approx. 50.1 percent and FIBA approx. 49.9 percent of
the voting capital of Finedining S.à r.l., Luxembourg, whereas
Finedining S.à r.l. will, in turn, indirectly through Finedining hold
approx. 96.63 percent of the WMF Ordinary Shares. As a result
of conditions precedent, the Investment Agreement needs not
be consummated if the tender offer does not take effect. After
the consummation of the Investment Agreement, a review of the
structure, business activities and financing of the companies of
WMF Group is planned.
With the tender offer and the completion of the Investment
Agreement, Finedining intends to achieve a shareholding large
enough for a squeeze-out under transformation or stock corporation law, which would automatically result in the delisting of
the WMF Shares. WMF AG could also apply to delist its shares.
Although Finedining does not intend to enter into a domination
and profit and loss transfer agreement with WMF AG, it does not
exclude this possibility.
Takeover offer to the shareholders of Deutsche Steinzeug
Cremer & Breuer AG
Steinzeug Invest GmbH, Swisttal (“Steinzeug”), offers the
shareholders of Deutsche Steinzeug Cremer & Breuer AG,
Alfter-Witterschlick (“DSCB AG”), to acquire their no-par value
bearer shares in DSCB AG against a cash consideration of
0.32 euro for each share until August 21, 2014.
Steinzeug, whose managing director and sole shareholder is
Dieter Schäfer, who is also chairman of the management board
of DSCB AG, did not hold shares of DSCB AG before the offer
but Dieter Schäfer held 0.06 percent of the shares of DSCB AG.
The offer is made in support of the applications of DSCB AG
to delist its shares from trading on the regulated market of
the Frankfurt and Berlin stock exchanges which are expected
to lead to the termination of the trading on the regulated market in the course of October 2014. Having experienced a difficult market situation for quite some time, DSCB AG’s financial
situation and the market price for its shares have deteriorated.
Delisting is sought because DSCB AG is currently not in a position to acquire additional capital on the capital market and its
listing involves high costs primarily for meeting listing-related
reporting and publication obligations. Apart from supporting
DSCB AG’s delisting effort, Steinzeug does not intend to implement any structural measures under corporate or capital market law or other changes at DSCB AG. Steinzeug considers the
offer an economically useful means of minimizing the freefloat
in preparation for selling the shares it acquired through the offer
to a strategic investor as soon as such an investor has been
found by DSCB AG. Steinzeug has entered into agreements with
shareholders of DSCB AG in which they have agreed to refrain
from accepting the offer for a total of approx. 72.69 percent of
the outstanding shares of DSCB AG.
Takeover offer for shares of Update Software AG
Aurea Software FZ-LLC, Dubai, United Arab Emirates
(“Aurea”), offers the shareholders of Update Software AG, Vienna, Austria (“Update AG”), to acquire their no-par value bearer
shares in Update AG against a cash consideration of 3.44 euros
for each share during the acceptance period until July 31, 2014.
The completion of the offer is subject to the fulfillment of completion conditions which require that until the expiration of the
acceptance period, among other things, a minimum acceptance
threshold of at least 50.1 percent of the shares of Update AG
outstanding at that time will be reached.
In the context of the offer, Aurea is acting jointly with its parent
company Aurea Software, Inc. (together with its subsidiaries:
-2-
takeover monthly 2014 | 6
“Aurea Group”), which is wholly owned by ESW Capital LLC,
whose sole shareholder is Joseph Anthony Liemandt, Austin,
Texas, USA. Aurea and the persons acting jointly with it had no
shareholding in Update AG upon publication of the offer document, but Aurea has entered into so-called “irrevocable undertakings” with several shareholders holding shares representing a
total of approx. 51.24 percent of the share capital of Update AG,
in which those shareholders, among other things, undertake to
accept Aurea’s takeover offer.
Apart from opening up cross-sell opportunities, Aurea Group
intends to expand its business activities and product portfolio
in the segment CRM software. Aurea intends to sell the rights in
software developed or purchased by Update AG and to enable
Update AG to continue to use those software rights on the basis
of license agreements. An intended analysis whether synergies
can be achieved through combining functions with affiliates
within Aurea Group might result in a reduction of the number
of employees of Update AG. Aurea plans to be adequately represented in the supervisory board of Update AG and is keen to
ensure that Thomas Deutschmann continues in his functions
as CEO and chairman of the management board of Update
AG. Aurea does not intend to enter into a domination and profit
and loss transfer agreement with Update AG. It plans to cause
Update AG to apply for a delisting or to end the admission of
the shares for trading on the stock exchange by way of a corporate transformation. Aurea intends a squeeze-out under Austrian
squeeze-out or corporate transformation law.
member of the supervisory board of Ehlebracht AG. Subsequent
to the offer, an analysis is planned to assess whether integration
measures, which are reserved, such as, e.g., an inter-company
agreement or a merger with Funktionstechnik, make sense.
Completed offers
(shareholding in each case as a percentage of the share capital)
Offeror /
Target
David L. Deck,
Gilbert Schöni,
Prof. Dr. LeeAnn LaurentApplegate
and Frank
Scheunert /
Porta Systems
AG 2)
Offeror’s
shareholding
before the
offer (direct/
indirect)
Acquisition
through
acceptance
of the offers
Offeror’s
shareholding after the
offer (direct/
indirect)
approx.
42.59%
approx.
0.05%
approx.
42.64%
0%
approx.
69.07%
approx.
69.07%
0%
approx.
92.71%
approx.
92.71%
Amadeus
Corporate
Business AG /
i:FAO AG 1)
Adler Real
Estate AG /
Estavis AG 1)
1) Takeover offer 2) Mandatory offer 3) Acquisition offer
Takeover offer to the shareholders of Ehlebracht AG
E & Funktionstechnik Holding AG, Ratingen (“Funktionstechnik”), offers the shareholders of Ehlebracht Aktiengesellschaft, Enger (“Ehlebracht AG”), to acquire their no-par value
bearer shares in Ehlebracht AG against a cash consideration of
3.88 euros for each share until July 21, 2014.
In the context of the takeover offer, Funktionstechnik is acting
jointly with its sole shareholder, MSI MittelStand-Invest GmbH,
Cologne (“MSI GmbH”), and Ralf Kesseböhmer, who is the
sole shareholder of MSI GmbH. By extending its takeover offer
on behalf of MSI GmbH and Ralf Kesseböhmer, Funktionstechnik is also fulfilling their offer obligations. Ehlebracht AG is a subsidiary of Funktionstechnik (which holds approx. 77.15 percent
of the shares of Ehlebracht AG) and, together with its subsidiaries, is regarded as a person acting jointly with it. Although a takeover offer is defined as an offer which is aimed at gaining control
(i.e., the holding of at least 30 percent of the voting rights) over a
target company, the present offer is nevertheless a takeover offer
because Funktionstechnik published its decision to extend a
takeover offer when it did not own any shares of Ehlebracht AG.
It acquired legal ownership of its shares of Ehlebracht AG after
that announcement. Since Funktionstechnik and the persons
controlling it thereby acquired control of Ehlebracht AG on the
basis of a takeover offer, they are not subject to the obligation to
make a mandatory offer.
The offer is aimed at expanding the existing shareholding in
Ehlebracht AG whose business activity and strategy are to stay
the same. A sale of assets not required for operational purposes
is reserved. Ralf Kesseböhmer is to be elected or appointed as
Takeover offer for shares of R. Stahl AG will not be consummated
The offer of Weidmüller Beteiligungsgesellschaft mbH,
Munich (“Weidmüller GmbH”), to acquire no-par value registered shares of R. Stahl Aktiengesellschaft, Waldenburg
(“R. Stahl AG”), against a cash consideration of 50 euros for
each share will not be completed because, in view of acceptance for 1,045,958 shares, together with 55,236 shares held by
Weidmüller GmbH and its parent company, the completion condition of reaching a minimum acceptance threshold of at least
2,961,856 shares of R. Stahl AG was not fulfilled.
Announced offers
-3-
Type of offer
Offeror
Target
Announcement
Takeover offer
Dürr Technologies GmbH
Homag
Group AG
July 15, 2014
Takeover offer
FS Technology
Holding S.à r.l.
First
Sensor AG
June 24, 2014
Mandatory
offer
Materali a.s.
GSG Group
(previously:
ORCO
Germany S.A.)
June 13, 2014
Takeover offer
Meibah
International
GmbH (Blitz
14-69 GmbH)
Schumag AG
June 10, 2014
2014 | 6
The Morgan Lewis takeover monthly is a documentation
of current public tender offers in Germany which Morgan
Lewis publishes for its clients and interested persons.
This issue covers published and announced offers until
July 15, 2014.
All issues of the Morgan Lewis takeover monthly are
available at our website www.morganlewis.de.
If you have any questions regarding the Morgan Lewis
takeover monthly, please contact Dr. Christian Zschocke
or Nils Rahlf at takeover@morganlewis.de.
Morgan, Lewis & Bockius LLP
Frankfurt Office
OpernTurm
60306 Frankfurt am Main
frankfurtoffice@morganlewis.de
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