IMPORTANT NOTICE
FOR DISTRIBUTION ONLY OUTSIDE THE UNITED STATES TO PERSONS OTHER THAN „U.S. PERSONS“ (AS DEFINED IN REGULATION S OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE „SECURITIES ACT“)). NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN OR INTO, OR TO ANY PERSON LOCATED OR RESIDENT IN, ANY OTHER JURISDICTION WHERE IT IS UNLAWFUL TO RELEASE, PUBLISH OR DISTRIBUTE THIS DOCUMENT.
The attached consent solicitation statement (the „Consent Solicitation Statement„) is made available by ADLER Real Estate Aktiengesellschaft (the „Issuer“ or „ADLER„) to all Noteholders (as defined herein), subject to each such Noteholder providing a confirmation to ADLER that such Noteholder is not a U.S. person (as defined in Regulation S under the Securities Act), and is not acting for the account or benefit of a U.S. person, and that such Noteholder is not located or resident in the United States. Only Noteholders who have provided such confirmation are authorised to receive or review the Consent Solicitation Statement or to participate in the Consent Solicitation (as defined herein) made thereby. Capitalised terms used but not otherwise defined in this disclaimer shall have the meaning given to them in the Consent Solicitation Statement.
NOTHING IN THE CONSENT SOLICITATION STATEMENT CONSTITUTES OR CONTEMPLATES AN OFFER OF, AN OFFER TO PURCHASE OR THE SOLICITATION OF AN OFFER TO SELL SECURITIES IN THE UNITED STATES OR ANY OTHER JURISDICTION WHERE IT IS UNLAWFUL TO RELEASE, PUBLISH OR DISTRIBUTE THE DOCUMENT. THE NOTES (AS DEFINED BELOW) HAVE NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES ACT, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES, AND THE NOTES MAY NOT BE OFFERED, SOLD OR DELIVERED, DIRECTLY OR INDIRECTLY, WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE OR LOCAL SECURITIES LAWS.
IMPORTANT: You must read the following disclaimer before continuing. The following disclaimer applies to the Consent Solicitation Statement, whether received by e-mail or otherwise received as a result of an electronic communication and you are therefore advised to read this disclaimer page carefully before reading, accessing or making any other use of the Consent Solicitation Statement. In accessing the Consent Solicitation Statement, you agree to be bound by the following terms and conditions, including any modifications to them from time to time, each time you receive any information from the Issuer, J.P. Morgan Securities plc (the „Solicitation Agent„) or Lucid Issuer Services Limited (the „Tabulation Agent„) as a result of such access.
THE CONSENT SOLICITATION STATEMENT MAY NOT BE FORWARDED OR DISTRIBUTED TO ANY OTHER PERSON AND MAY NOT BE REPRODUCED IN WHOLE OR IN PART IN ANY MANNER WHATSOEVER. ANY FORWARDING, DISTRIBUTION OR REPRODUCTION OF THE CONSENT SOLICITATION STATEMENT IN WHOLE OR IN PART IS UNAUTHORISED. FAILURE TO COMPLY WITH THIS DIRECTIVE MAY RESULT IN A VIOLATION OF THE SECURITIES ACT OR THE APPLICABLE LAWS OF OTHER JURISDICTIONS. IF YOU HAVE NOT PROVIDED THE ISSUER WITH THE CONFIRMATION DESCRIBED BELOW OR HAVE GAINED ACCESS TO THE CONSENT SOLICITATION STATEMENT CONTRARY TO ANY OF THE FOREGOING RESTRICTIONS, YOU ARE NOT AUTHORISED TO PARTICIPATE IN THE CONSENT SOLICITATION DESCRIBED IN THE CONSENT SOLICITATION STATEMENT.
Confirmation of your representation: You have been sent the Consent Solicitation Statement at your request and on the basis that:
| (a) |
you are a holder or a beneficial owner of the Notes (as defined in the Consent Solicitation Statement); |
| (b) |
you shall not pass on the Consent Solicitation Statement to third parties or otherwise make the Consent Solicitation Statement publicly available in whole or in part; |
| (c) |
you are otherwise a person to whom it is lawful to send the Consent Solicitation Statement or to make the Consent Solicitation under applicable laws and regulations; |
| (d) |
you are not a U.S. person (as defined in Regulation S under the Securities Act), and are not acting for the account or benefit of any U.S. person, and that you are not located or resident in the United States; |
| (e) |
you consent to delivery of the Consent Solicitation Statement to you by electronic transmission; and |
| (f) |
you have understood and agreed to the terms set forth in this disclaimer. |
The Consent Solicitation Statement has been sent to you in an electronic form. You are reminded that documents transmitted via this medium may be altered or changed during the process of transmission and consequently none of the Issuer, the Solicitation Agent, the Tabulation Agent, or any person who controls, or is a director, officer, employee or agent, of any of them, or any affiliate of any such person, accepts any liability or responsibility whatsoever in respect of any difference between the Consent Solicitation Statement distributed to you in electronic format and the hard copy version available to you on request from the Tabulation Agent.
You are reminded that the Consent Solicitation Statement has been delivered to you on the basis that you are a person into whose possession the Consent Solicitation Statement may lawfully be delivered in accordance with the laws and regulations of the jurisdiction in which you are located and/or resident and you may not nor are you authorised to deliver the Consent Solicitation Statement to any other person.
If you have recently sold or otherwise transferred your entire holding(s) of the Notes referred to herein, you should immediately notify the Tabulation Agent.
This Consent Solicitation Statement has not been filed with, or reviewed by, any national or local securities commission or regulatory authority of any jurisdiction, nor has any such commission or authority passed upon the accuracy or adequacy of this Consent Solicitation Statement. Any representation to the contrary may be unlawful and a criminal offence.
The materials relating to the Consent Solicitation Statement do not constitute, and may not be used in connection with, an offer of, an offer to purchase or the solicitation of an offer to purchase or sell, any securities in any jurisdiction. The distribution of the Consent Solicitation Statement in certain jurisdictions may be restricted by law, and persons into whose possession the Consent Solicitation Statement comes are requested to inform themselves about, and to observe, any such restrictions.
CONSENT SOLICITATION STATEMENT / INVITATION TO VOTE WITHOUT MEETING, dated January 8, 2020
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION
The distribution of this Consent Solicitation Statement in certain jurisdictions may be restricted by law and regulations, and persons into whose possession this Consent Solicitation Statement comes are required to inform themselves about, and to observe, any such restrictions. The Consent Solicitation is being made only outside the United States to persons other than „U.S. Persons“ (as defined in Regulation S under the United States Securities Act of 1933, as amended (the „Securities Act“)). Nothing in this Consent Solicitation Statement constitutes or contemplates an offer of, an offer to purchase or the solicitation of an offer to purchase or sell any security in the United States or any other jurisdiction.
Invitation by
ADLER Real Estate Aktiengesellschaft
Berlin, Germany
(the „Issuer“ or „ADLER„)
to eligible holders of the Issuer’s
€400,000,000 1.500% Notes due 2022 (ISIN: XS1843441491) (the „2022 Notes“)
€500,000,000 1.875% Notes due 2023 (ISIN: XS1713464441) (the „2023 Notes“)
€300,000,000 3.000% Notes due 2026 (ISIN: XS1713464524) (the „2026 Notes“)
(each a „Series“ and together, the „Notes„)
On the terms and subject to the conditions set forth in this consent solicitation statement (as amended or supplemented from time to time, the „Consent Solicitation Statement„), ADLER Real Estate Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of Germany, hereby invites the holders of the Notes (the „Noteholders„) to vote without a meeting (the „Voting“ and the votes cast in the Voting, the „Votes„) on, and solicits their consent in respect of, the proposed amendments (the „Amendments“ and each, an „Amendment„) relating to the respective terms and conditions (together, the „Terms and Conditions„) of the 2022 Notes, the 2023 Notes and the 2026 Notes
during the voting period (the „Voting Period„)
from 00:00 CET on January 27, 2020
until 23:59 CET on January 29, 2020
(the invitations together with the consent solicitation, the „Consent Solicitation„).
As more fully described in this Consent Solicitation Statement, the purpose of the Amendments is to allow the Issuer to complete the transaction (the „Transaction„) contemplated in the business combination agreement entered into between the Issuer and ADO Properties S.A. („ADO Properties„) on December 15, 2019 (the „Business Combination Agreement„), without being required to redeem or purchase (or procure the purchase of) Notes as a consequence of the anticipated Change of Control (as defined in the Terms and Conditions) that will result when the Transaction is completed. See „Background and Reasons for the Consent Solicitation.“ For purposes of this Consent Solicitation Statement, the „Noteholder“ of any Notes shall mean the beneficial owner with respect to the Notes.
In addition to the Consent Solicitation that is the subject of this Consent Solicitation Statement, the Issuer will launch a separate consent solicitation in respect of its €500,000,000 1.500% notes due 2021 (ISIN: XS1731858392) (the „2021 Notes„) and its €300,000,000 2.125% notes due 2024 (ISIN: XS1731858715) (the „2024 Notes„), which are governed by the laws of the State of New York. The requirements for delivering consents in respect of the 2021 Notes and the 2024 Notes differ from the requirements applicable to the Notes. Holders of the 2021 Notes and the 2024 Notes are therefore advised to contact the Tabulation Agent to obtain the separate consent solicitation statement applicable to the 2021 Notes and the 2024 Notes. The effectiveness of the Amendments with respect to the Notes is not dependent on the outcome of the separate consent solicitation to be launched in respect of the 2021 Notes and the 2024 Notes.
THIS CONSENT SOLICITATION STATEMENT IS ONLY AVAILABLE TO PERSONS WHO HAVE CONFIRMED TO THE TABULATION AGENT THAT THEY ARE A NON-„U.S. PERSON“ AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT.
If an Amendment becomes effective in respect of a Series, each present and future Noteholder of such Series will be bound by such Amendment, whether or not such Noteholder consented to the Amendment or participated in the Voting. See „The Consent Solicitation—Effectiveness of the Amendments.“
NOTEHOLDERS WHO WISH TO PARTICIPATE IN THE VOTING MUST REGISTER ON THE VOTING PLATFORM (www.lucid-is.com/adler) BY JANUARY 24, 2020, 11:59 P.M. CET (THE „ REGISTRATION AND INSTRUCTION DEADLINE „). IN ADDITION, NOTEHOLDERS MUST PROVIDE A CONSENT INSTRUCTION (INCLUDING A SPECIAL PROOF WITH BLOCKING INSTRUCTION) BY THE REGISTRATION AND INSTRUCTION DEADLINE.
NOTEHOLDERS ARE ADVISED TO CHECK WITH ANY NOMINEE, CUSTODIAN, INTERMEDIARY OR PERSON ACTING IN A SIMILAR CAPACITY FOR THE NOTEHOLDER WHETHER SUCH NOMINEE, CUSTODIAN, INTERMEDIARY OR PERSON ACTING IN A SIMILAR CAPACITY FOR THE NOTEHOLDER WOULD REQUIRE RECEIPT OF INSTRUCTIONS TO PARTICIPATE IN THE VOTING BEFORE THE DEADLINES AND WITHIN THE PERIODS SPECIFIED IN THIS CONSENT SOLICITATION STATEMENT. THE DEADLINES SET BY EACH CLEARING SYSTEM FOR THE SUBMISSION OF CONSENT INSTRUCTIONS MAY ALSO BE EARLIER THAN THE RELEVANT DEADLINES SPECIFIED IN THIS CONSENT SOLICITATION STATEMENT.
THE VOTING WILL BE CONDUCTED BY KARIN ARNOLD, NOTARY PUBLIC (THE „ SCRUTINEER „), WHO HAS BEEN APPOINTED BY THE ISSUER FOR SUCH PURPOSE. VOTES SUBMITTED TO THE TABULATION AGENT VIA THE VOTING PLATFORM (www.lucid-is.com/adler) AND THE SUBMISSION OF A CONSENT INSTRUCTION (BY THE NOTEHOLDERS OR THEIR PROXIES) IN TEXT FORM (AS DEFINED IN SECTION 126B OF THE GERMAN CIVIL CODE ( BÜRGERLICHES GESETZBUCH ), WILL BE PRESENTED TO THE SCRUTINEER BY THE TABULATION AGENT WITHIN THE VOTING PERIOD. NOTEHOLDERS MAY BE REPRESENTED BY PROXY. FOR DETAILS ON THE PROCEDURES FOR VOTING AND THE PREREQUISITES WHICH MUST BE MET BY NOTEHOLDERS FOR PARTICIPATING IN THE VOTING AND EXERCISING VOTING RIGHTS SEE „THE CONSENT SOLICITATION— PROCEDURES FOR VOTING.“
NOTHING IN THIS CONSENT SOLICITATION STATEMENT CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO PURCHASE ANY SECURITIES. THE SECURITIES REFERRED TO HEREIN HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES, OR TO OR FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
The Solicitation Agent for the Consent Solicitation is
J.P. Morgan
The Tabulation Agent for the Consent Solicitation is
Lucid Issuer Services Limited
The Scrutineer for the Consent Solicitation is
Karin Arnold, notary public
CONTENTS
GENERAL
DEFINITIONS
SUMMARY OF THE CONSENT SOLICITATION
KEY ACTIONS TO BE TAKEN BY NOTEHOLDERS
KEY DATES
RISK FACTORS RELATED TO THE CONSENT SOLICITATION
BACKGROUND AND REASONS FOR THE CONSENT SOLICITATION
THE CONSENT SOLICITATION
TAX CONSEQUENCES
GENERAL
The Issuer accepts responsibility for the information contained in this Consent Solicitation Statement. To the best of the knowledge and belief of the Issuer (having taken all reasonable care to ensure that such is the case), the information contained in this Consent Solicitation Statement is in accordance with the facts and does not omit anything likely to affect the import of such information. None of the Solicitation Agent, the Tabulation Agent, the Scrutineer or any of their respective directors, officers, employees, affiliates or agents accepts any responsibility for the information contained in this Consent Solicitation Statement, has verified, or assumes any responsibility for the accuracy or completeness of, any of the information concerning the Consent Solicitation, the Amendments, the Issuer, the Notes or the factual statements contained in, or the effect or effectiveness of, this Consent Solicitation Statement or any other documents referred to in this Consent Solicitation Statement or assumes any responsibility for any failure by the Issuer to disclose events that may have occurred and may affect the significance or accuracy of such information or the terms of any amendment to any Consent Solicitation.
Adoption of an Amendment in respect of a Series requires the consent of at least 75% of the Votes cast in respect of such Series (the „Requisite Consents„). In order to have a quorum in respect of a Series, it is required pursuant to Section 18 para. 1 in conjunction with section 15 para. 3 sentence 1 of the German Act on Debt Securities of 2009 (Schuldverschreibungsgesetz) („Act on Debt Securities„) that Noteholders representing at least 50% of the aggregate outstanding principal amount of such Series participate in the Voting. The Issuer will publish the results of the Voting on the next Business Day following the end of the Voting Period on its website and as soon as reasonably possible in the Federal Gazette (Bundesanzeiger).
Following receipt of the Requisite Consents to an Amendment, such Amendment will become effective in respect of a Series once
| (i) |
the statutory contestation period under Section 20 para. 3 sentence 1 of the Act on Debt Securities has expired (provided that no contestation proceeding is outstanding with respect to the Consent Solicitation or such Amendment at such time) or |
| (ii) |
if a contestation claim has been filed, after the settlement of such contestation claim, |
and the amended Terms and Conditions of such Series have been filed with the common safekeeper for Clearstream, Luxembourg and Euroclear and attached to the respective global note(s) representing such Series.
If an Amendment becomes effective in respect of a Series, it will be binding on all Noteholders of such Series and their successors and transferees, whether or not such Noteholders consented to such Amendment or participated in the Voting. See „Risk Factors Related to the Consent Solicitation—If an Amendment in respect of a Series becomes effective, all Notes of such Series will be subject to the terms of, and each Noteholder of such Series will be bound by, such Amendment.“ The Issuer intends to make a public announcement as soon as reasonably practicable after any Amendments have become effective. If any of the Conditions to the Consent Solicitation (as defined herein) are not satisfied in respect of an Amendment, then such Amendment will not become effective. See „The Consent Solicitation—Effectiveness of the Amendments.“
No person has been authorized to give any information or make any representations other than those contained in this Consent Solicitation Statement and, if given or made, such information or presentations should not be relied upon as having been authorized by the Issuer. Neither the delivery of this Consent Solicitation Statement, nor any Votes solicited or accepted hereunder, at any time shall, under any circumstances, create any implication that the information set forth herein is correct as of any time subsequent to the date hereof or that there has been no change in the information set forth herein or in the affairs of the Issuer since the date hereof.
Requests for assistance in completing and delivering Votes, Consent Instructions (as defined herein) or documents or requests for additional copies of this Consent Solicitation Statement and other related documents may be directed to the Tabulation Agent at its contact details set forth on the back page of this Consent Solicitation Statement.
For a discussion of factors you should consider before you decide whether to consent to an Amendment, see „Risk Factors Related to the Consent Solicitation.“
UNDER NO CIRCUMSTANCES SHOULD ANY PERSON TENDER OR DELIVER NOTES TO THE ISSUER, THE SOLICITATION AGENT, THE TABULATION AGENT, OR THE SCRUTINEER AT ANY TIME.
This Consent Solicitation Statement does not constitute an offer to sell or a solicitation of an offer to purchase any securities of the Issuer. The Notes have not been and will not be registered under the Securities Act or the securities laws of any state of the United States and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (as defined in Regulation S under the Securities Act), except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
The Notes have not been approved or disapproved by the U.S. Securities and Exchange Commission or any state securities commission, nor has the U.S. Securities and Exchange Commission or any state securities commission passed upon the accuracy or adequacy of this Consent Solicitation Statement. Any representation to the contrary is a criminal offense. This Consent Solicitation Statement does not constitute an offer to participate in this solicitation or an offer of securities in any jurisdiction where such offer is not permitted.
This Consent Solicitation Statement contains forward-looking statements. These forward-looking statements are not guarantees of future performance. Rather, they are based on current views and assumptions and involve known and unknown risks, uncertainties and other factors, many of which are outside the control of the Issuer and are difficult to predict, that may cause actual results or developments to differ materially from any future results or developments expressed or implied by the forward-looking statements.
DEFINITIONS
| 2021 Notes | The Issuer’s €500,000,000 1.500% notes due 2021 (ISIN: XS1731858392)
Holders of the 2021 Notes are advised to contact the Tabulation Agent to obtain the separate consent solicitation statement applicable to the 2021 Notes. |
| 2022 Notes | The Issuer’s €400,000,000 1.500% Notes due 2022 (ISIN: XS1843441491) |
| 2023 Notes | The Issuer’s €500,000,000 1.875% Notes due 2023 (ISIN: XS1713464441) |
| 2024 Notes | The Issuer’s €300,000,000 2.125% notes due 2024 (ISIN: XS1731858715)
Holders of the 2024 Notes are advised to contact the Tabulation Agent to obtain the separate consent solicitation statement applicable to the 2024 Notes. |
| 2026 Notes | The Issuer’s €300,000,000 3.000% Notes due 2026 (ISIN: XS1713464524) |
| Act on Debt Securities | The German Act on Debt Securities of 2009 (Schuldverschreibungsgesetz) |
| ADLER | ADLER Real Estate Aktiengesellschaft |
| ADO Group | ADO Group Ltd. |
| ADO Properties | ADO Properties S.A. |
| Amendments | The proposed amendments relating to the respective Terms and Conditions of the Notes |
| Blocking Instruction | A blocking instruction issued by the Custodian stating that the respective Notes are not transferable during the period from the date of the Special Proof until the last day (inclusive) of the Voting Period |
| Business Combination Agreement | The business combination agreement entered into between the Issuer and ADO Properties on December 15, 2019 |
| Business Day | A day, other than a Saturday or a Sunday, on which banks generally are open for business in Frankfurt am Main, Germany |
| Civil Code | The German Civil Code (Bürgerliches Gesetzbuch) |
| Clearing Systems | Euroclear and Clearstream, Luxembourg |
| Clearstream, Luxembourg | Clearstream Banking, S.A., Luxembourg |
| Conditions to the Consent Solicitation | (i) The receipt of the Requisite Consents to an Amendment; and (ii) the expiration of the statutory contestation period under the Act on Debt Securities and the absence of any outstanding contestation proceeding with respect to the Consent Solicitation and/or such Amendment at such time, or if a contestation claim has been filed by a Noteholder, after the settlement of the contestation claim. |
| Consent Instruction | The electronic voting instruction (including a Special Proof with Blocking Instruction) to Vote and to block the relevant Notes in the relevant Clearing Systems, given in such form as is specified by the Clearing Systems from time to time which Consent Instruction must be delivered through the relevant Clearing System by a Direct Participant in accordance with the procedures of the relevant Clearing System instructing the relevant Clearing System that the Vote attributable to the Notes which are the subject of such electronic voting instruction should be cast in a particular way in relation to the Amendments. |
| Consent Solicitation | The invitation to vote without a meeting together with the consent solicitation |
| Consent Solicitation Statement | This consent solicitation statement (as amended or supplemented from time to time) constituting an invitation to vote without a meeting pursuant to Section 18 para. 3 sentence 1 of the Act on Debt Securities. |
| Custodian | The bank or other financial institution with which the Noteholder maintains a securities account in respect of the Notes |
| Direct Participant | Each person who is shown in the records of the Clearing Systems as a Noteholder |
| Euroclear | Euroclear Bank SA/NV |
| Exchange Offer | The voluntary public tender offer by ADO Properties for all outstanding shares of the Issuer in the form of an exchange offer |
| Issuer | ADLER Real Estate Aktiengesellschaft |
| Noteholders | Holders of the Notes |
| Notes | The 2022 Notes, the 2023 Notes and the 2026 Notes |
| Record Date | 17:00 CET on the last day of the Voting Period, i.e. January 29, 2020 |
| Registration and Instruction Deadline | January 24, 2020, 11:59 p.m. |
| Requisite Consents | The consent of at least 75% of the Votes cast in respect of a Series |
| Resolution Fee | €150 per €100,000 principal amount of Notes |
| Sanctions Authority | (i) the United States government; (ii) the United Nations; (iii) the European Union (or any of its member states including, without limitation, the United Kingdom); (iv) any other equivalent governmental or regulatory authority, institution or agency which administers economic, financial or trade sanctions; or (v) the respective governmental institutions and agencies of any of the foregoing including, without limitation, the Office of Foreign Assets Control of the US Department of the Treasury, the United States Department of State, the United States Department of Commerce and Her Majesty’s Treasury. |
| Scrutineer | Karin Arnold, notary public |
| Securities Act | United States Securities Act of 1933, as amended |
| Series | Each of the 2022 Notes, the 2023 Notes and the 2026 Notes |
| Solicitation Agent | J.P. Morgan Securities plc |
| Solicitation Agency Agreement | The solicitation agency agreement dated January 6, 2020, between the Issuer and the Solicitation Agent |
| Special Proof | A special proof issued by the Custodian stating (i) the full name and address of the Noteholders and (ii) specifying the aggregate principal amount of the Notes credited to such securities account on the date of such statement |
| Tabulation Agent | Lucid Issuer Services Limited |
| Terms and Conditions | The respective terms and conditions of the 2022 Notes, the 2023 Notes and the 2026 Notes |
| Transaction | The transaction contemplated in the Business Combination Agreement |
| Unique Instruction Reference | The unique instruction reference obtained by Noteholders upon registration with the Voting Platform |
| Vote | A vote of a Noteholder either for or against an Amendment in respect of a Series |
| Voting Period | The period commencing on January 27, 2020, 00:00 a.m. CET and ending on January 29, 2020, 23:59 p.m. CET |
| Voting Platform | www.lucid-is.com/adler |
SUMMARY OF THE CONSENT SOLICITATION
This summary of the Consent Solicitation highlights information contained elsewhere in this Consent Solicitation Statement and does not contain all the information that may be important to Noteholders and it is qualified in its entirety by the remainder of this Consent Solicitation Statement. Noteholders should carefully read this Consent Solicitation Statement in its entirety.
| The Consent Solicitation: | On the terms and subject to the conditions set forth in this Consent Solicitation Statement, the Issuer hereby invites the Noteholders to vote without a meeting on, and solicits their consent in respect of, the Amendments relating to the respective Terms and Conditions of the 2022 Notes, the 2023 Notes and the 2026 Notes during the Voting Period.
In addition to the Consent Solicitation that is the subject of this Consent Solicitation Statement, the Issuer will launch a separate consent solicitation in respect of the 2021 Notes and the 2024 Notes, which are governed by the laws of the State of New York. The requirements for delivering consents in respect of the 2021 Notes and the 2024 Notes differ from the requirements applicable to the Notes. Holders of the 2021 Notes and the 2024 Notes are therefore advised to contact the Tabulation Agent to obtain the separate consent solicitation statement applicable to the 2021 Notes and the 2024 Notes. |
||||
| The Transaction: | On December 10, 2019, the Issuer completed the acquisition of 100% of the shares of ADO Group, which resulted in the Issuer indirectly holding a 33.25% stake in ADO Properties, which was the main asset held by ADO Group. On December 15, 2019, the Issuer entered into the Business Combination Agreement with ADO Properties. The transaction structure agreed in the Business Combination Agreement comprises a voluntary public tender offer by ADO Properties for all outstanding shares of the Issuer in the Exchange Offer. The Issuer anticipates that its boards, after having examined the full offer document pertaining to the Exchange Offer and subject to obtaining market standard fairness opinions from investment banks confirming the fairness of the exchange ratio in financial terms, will recommend to its shareholders to accept the Exchange Offer. | ||||
| The Amendments: | The purpose of the Amendments is to allow the Issuer to complete the Transaction without being required to redeem or purchase (or procure the purchase of) Notes as a consequence of the anticipated Change of Control (as defined in the Terms and Conditions) that will result when the Transaction is completed. | ||||
| Requisite Consents: | Adoption of an Amendment in respect of a Series requires the consent of at least 75% of the Votes cast in respect of such Series. In order to have a quorum in respect of a Series, it is required under the Act on Debt Securities that Noteholders representing at least 50% of the aggregate outstanding principal amount of such Series participate in the Voting. The Issuer will publish the results of the Voting on the next Business Day following the end of the Voting Period on its website and as soon as reasonably possible in the Federal Gazette (Bundesanzeiger). | ||||
| Conditions to the Consent Solicitation: | The following Conditions to the Consent Solicitation must be satisfied in respect of an Amendment:
Unless and until all of the Conditions to the Consent Solicitation in respect of a Series are satisfied, no Resolution Fee in respect of a Series will be paid to any Noteholder. |
||||
| No Inter-conditionality of the Votes: | Separate Votes will be held in respect of each Series and the effectiveness of an Amendment with respect to one Series is not dependent on the effectiveness of an Amendment with respect to any other Series, nor on the outcome of the separate consent solicitation to be launched in respect of the 2021 Notes and the 2024 Notes. | ||||
| Effectiveness of the Amendments: | Following receipt of the Requisite Consents to an Amendment, such Amendment will become effective in respect of a Series once
and the amended Terms and Conditions of such Series have been filed with the common safekeeper for Clearstream, Luxembourg and Euroclear and attached to the respective global note(s) representing such Series. If an Amendment becomes effective in respect of a Series, it will be binding on all Noteholders of such Series and their successors and transferees, whether or not such Noteholders consented to such Amendment or participated in the Voting. The Issuer intends to make a public announcement once any Amendments have become effective. If any of the Conditions to the Consent Solicitation in respect of a Series are not satisfied, then an Amendment will not become effective. |
||||
| Registration and Confirmation of Investor Status: | Participation in the Voting is subject to prior registration by Noteholders. In order to register to participate in the Voting, Noteholders are required to register on the Voting Platform (www.lucid-is.com/adler) by no later than the Registration and Instruction Deadline and, through the Clearing Systems, provide a Special Proof with Blocking Instruction. The Tabulation Agent will, within the Voting Period, deliver the Votes received from Noteholders to the Scrutineer.
Noteholders who fail to register will not be eligible to vote. As part of the registration, Noteholders must confirm that they are a non-„U.S. Person“ as defined in Regulation S under the Securities Act. If Noteholders exercise their voting right by submitting their vote directly to the Scrutineer, Noteholders are not required to register on the Voting Platform. However, they need to register themselves no later than the Registration and Instruction Deadline with the Issuer or the Scrutineer and provide a Special Proof with Blocking Instruction. |
||||
| Representation by Proxy: | As regards the exercise of voting rights and the submission of Votes and relevant documents, each Noteholder may be represented by a proxy. The power of attorney and any instructions given to the proxy by the principal must be in text form (as defined in Section 126b of the Civil Code).
The Scrutineer must receive the power of attorney in text form (as defined in Section 126b of the Civil Code) no later than the end of the Voting Period. To the extent applicable, the power of representation of the person issuing the power of attorney shall also be received by the Scrutineer by no later than the end of the Voting Period. |
||||
| Voting Period: | The Voting Period begins on January 27, 2020, 00:00 a.m. CET, and ends on January 29, 2020, 23:59 p.m. CET. | ||||
| Procedures for Delivering Votes: | Votes submitted to the Tabulation Agent prior to the Registration and Instruction Deadline will be presented by the Tabulation Agent to the Scrutineer within the Voting Period. Votes which are received by the Scrutineer prior to or after the Voting Period will be disregarded and of no effect. In order for Noteholders to ensure that the Tabulation Agent will be able to present Votes on their behalf to the Scrutineer during the Voting Period, Noteholders (or their proxies) must submit a Consent Instruction (in registering on the Voting Platform) as described below, prior to the Registration and Instruction Deadline. Noteholders may alternatively submit Votes within the Voting Period directly to the Scrutineer to its contact details set forth on the back cover of the Consent Solicitation Statement. | ||||
| Special Proof with Blocking Instruction: | In order to register for the Voting, Noteholders must provide a special proof with blocking instruction through their Custodian via an electronic instruction through the Clearing Systems stating (i) the full name and address of the Noteholders and (ii) specifying the aggregate principal amount of the Notes credited to such securities account on the date of such statement, and confirming that the respective Notes are blocked during the period from the date thereof until the last day (inclusive) of the Voting Period, i.e. January 29, 2020, 23:59 p.m. CET.
Noteholders are requested to submit the Special Proof with Blocking Instruction by submitting a Consent Instruction in respect of an Amendment. Only Direct Participants may submit Consent Instructions to the relevant Clearing System. Each Noteholder that is not a Direct Participant must arrange for the Direct Participant through which it holds Notes or for the nominee, custodian, intermediary or person acting in a similar capacity for the Noteholder through which it holds the Notes to arrange for their Direct Participant in Clearstream, Luxembourg or Euroclear to submit a Consent Instruction, as the case may be, on its behalf to the relevant Clearing System prior to the deadline(s) specified by such Clearing System and so as to be received by the Tabulation Agent prior to the Registration and Instruction Deadline. Noteholders not having submitted the Consent Instruction must submit the Special Proof with Blocking Instruction by the Registration and Instruction Deadline in text form as defined in Section 126b of the Civil Code. |
||||
| No Revocation Rights: | Any Consent Instructions received by the Tabulation Agent and any Votes received by the Scrutineer may not be revoked by Noteholders. See „The Consent Solicitation—No Revocation Rights.“ | ||||
| Resolution Fee: | In the event that the Requisite Consents in respect of a Series are obtained, the Issuer will make a one-time cash payment equal to €150 per €100,000 principal amount of such Series to all Noteholders of such Series as of 17:00 CET on the last day of the Voting Period, i.e. January 29, 2020 (the „Record Date„) (i) once the statutory contestation period under the Act on Debt Securities has expired (provided that no contestation proceeding is outstanding with respect to the Consent Solicitation or such Amendment at such time) or (ii) if a contestation claim is filed, within three Business Days after such contestation claim has been settled, subject to certain other terms and conditions. No Resolution Fee will be paid if (i) the Consent Solicitation is terminated, withdrawn or otherwise not consummated or (ii) the Requisite Consents are not obtained. | ||||
| Termination or Modification of the Consent Solicitation: | Notwithstanding anything to the contrary set forth in this Consent Solicitation Statement, the Issuer reserves the right, in its sole discretion, subject to applicable law and certain contractual restrictions, at any time prior to the beginning of the Voting Period, to: (i) terminate the Consent Solicitation for any reason, and/or (ii) modify the form or increase the amount of the consideration to be paid pursuant to the Consent Solicitation. | ||||
| Assistance and Information: | Requests for assistance in completing and delivering Votes or any documents related to the Consent Solicitation and requests for additional copies of this Consent Solicitation Statement and other relevant documents may be directed to the Tabulation Agent at its contact details set forth on the back page of this Consent Solicitation Statement. Noteholders may also contact their broker, dealer, commercial bank, custodian, trust company or other nominee for assistance concerning the Consent Solicitation. | ||||
| Solicitation Agent: | J.P. Morgan Securities plc | ||||
| Tabulation Agent: | Lucid Issuer Services Limited | ||||
| Scrutineer: | Karin Arnold, notary public |
KEY ACTIONS TO BE TAKEN BY NOTEHOLDERS
The following is a summary of key actions to be taken by Noteholders who wish to participate in the voting and is qualified in its entirety by the more detailed information appearing elsewhere in this Consent Solicitation Statement.
Noteholders who wish to participate in the Voting should take the following actions:
Step 1: Registration and Voting Form to be completed by Noteholders
| • |
Register on the Voting Platform (www.lucid-is.com/adler) by the Registration and Instruction Deadline in order to receive their Unique Instruction Reference. |
Step 2: Consent Instruction
| • |
Submit an electronic Special Proof through the Clearing Systems confirming the voting direction, the name and address of the Noteholder, the Unique Instruction Reference as obtained on the website and a confirmation that the Notes subject to the instruction have been blocked (Notes will be blocked until the end of the Voting Period). |
BOTH OF THESE STEPS ARE REQUIREMENTS FOR VOTING.
Registration and Instruction Deadline: January 24, 2020, 11:59 p.m. CET
KEY DATES
Noteholders should take note of the following key dates in connection with the Consent Solicitation. The following summary of key dates is qualified in its entirety by the more detailed information appearing elsewhere in this Consent Solicitation Statement. The dates below are subject to modification in accordance with the terms of the Consent Solicitation:
| Event | Calendar Date | Description of Event |
| Launch Date | January 8, 2020 | Commencement of consent solicitation; Consent Solicitation Statement published in the Federal Gazette (Bundesanzeiger). |
| Registration and Instruction Deadline | January 24, 2020, 23:59 CET | The time prior to which Noteholders must register on the Voting Platform (www.lucid-is.com/adler) and submit the Consent Instruction and the Special Proof with Blocking Instruction in order to be eligible to participate in the Voting. |
| Start of Voting Period | January 27, 2020, 00:00 CET | Beginning of the Voting Period during which Votes are presented by the Tabulation Agent to the Scrutineer, and during which Votes may be submitted to the Scrutineer by Noteholders directly. Votes which are received by the Scrutineer prior to the Voting Period will be disregarded and of no effect. |
| End of Voting Period | January 29, 2020, 23:59 CET | End of the Voting Period during which Votes are presented by the Tabulation Agent to the Scrutineer, and during which Votes may be submitted to the Scrutineer by Noteholders directly. Votes which are received by the Scrutineer after the Voting Period will be disregarded and of no effect. |
| Announcement of the results of the Consent Solicitation | January 30, 2020 | The time at which the results of the Consent Solicitation are submitted by the Issuer to the Federal Gazette (Bundesanzeiger) for publication. |
| End of statutory contestation period | One month after publication of the results of the Voting in the Federal Gazette (Bundesanzeiger). The contestation period is expected to expire on or about March 3, 2020, 11:59 CET. | The time prior to which each Noteholder has the statutory right under the Act on Debt Securities to contest any resolution adopted by the Noteholders. |
| Resolution Fee Payment Date | As soon as practical after the end of the statutory contestation period (provided that no contestation proceeding is outstanding with respect to the Consent Solicitation or the Amendments) or, if a contestation claim is filed, within three Business Days after such contestation claim has been settled. | The date on which the Issuer pays the Resolution Fee to the Clearing Systems for all Noteholders as of the Record Date of a Series in respect of which the Requisite Consents have been obtained. No Resolution Fee will be paid if (i) the Consent Solicitation is terminated, withdrawn or otherwise not consummated or (ii) the Requisite Consents are not obtained. |
| Announcement of the effectiveness of any Amendments | As soon as practical after the end of the statutory contestation period (provided that no contestation proceeding is outstanding with respect to the Consent Solicitation or the Amendments). | The date on which the effectiveness of any Amendments are announced by the Issuer. |
Noteholders are advised to check with any nominee, custodian, intermediary or person acting in a similar capacity for the Noteholder whether such nominee, custodian, intermediary or person acting in a similar capacity for the Noteholder would require receipt of instructions to participate in the Voting before the deadlines and within the periods specified in this Consent Solicitation Statement.
RISK FACTORS RELATED TO THE CONSENT SOLICITATION
None of the Issuer, the Solicitation Agent, the Tabulation Agent, the Trustee or any of their respective directors, officers, employees, agents or affiliates makes any recommendation as to whether a Holder should consent to the Amendments and none of the Issuer or its management board has authorised any person to make any such statement. Holders are urged to evaluate carefully all information included in this Consent Solicitation Statement, consult with their own legal, investment and tax advisors and make their own decision whether to provide their consent to the Amendments.
Before making a decision with respect to any Consent Solicitation, Noteholders should carefully consider, in addition to the other information contained in this Consent Solicitation Statement, the following.
If an Amendment in respect of a Series becomes effective, all Notes of such Series will be subject to the terms of, and each Noteholder of such Series will be bound by, such Amendment.
If an Amendment becomes effective in respect of a Series, all Noteholders of such Series will be bound by such Amendment, whether or not such Noteholder delivered a Vote or otherwise affirmatively approved or objected to such Amendment. Once an Amendment becomes effective in respect of a Series, Noteholders of such Series that do not participate in the Voting or do not vote in favor of such Amendment will not be entitled to any rights of appraisal or similar rights of dissenters with respect to the adoption of such Amendment.
Noteholders may be unable to revoke their Consent Instructions and Votes and may experience delays in receiving the Resolution Fee.
Any Consent Instructions received by the Tabulation Agent and any Votes received by the Scrutineer may not be revoked by Noteholders. Furthermore, Noteholders who validly deliver Votes may be required to wait for an extended period of time before receiving the Resolution Fee. In addition, Noteholders will not receive the Resolution Fee at all if (i) the Consent Solicitation is terminated, withdrawn or otherwise not consummated or (ii) the Requisite Consents are not obtained.
Notes of Noteholders that register to participate in the Voting will be blocked from trading through the Clearing Systems until and including the last day of the Voting Period.
In order to participate in the Voting, Noteholders are required to submit certain documents in respect of their Notes, including a Special Proof with Blocking Instruction (as part of the Consent Instruction) issued by the relevant custodian by no later than the Registration and Instruction Deadline. The Blocking Instruction will include a confirmation by the relevant custodian that the respective Notes are not transferable during the period from the date of the Special Proof until the last day (inclusive) of the Voting Period. In the period of time during which Notes are blocked from trading pursuant to the foregoing procedures for registration for, and participation in, the Voting, Noteholders may be unable to promptly liquidate their Notes or timely react to adverse trading conditions and could suffer losses as a result of these restrictions on transferability.
Noteholders will be responsible for assessing the merits of the Consent Solicitation and complying with the procedures of the Consent Solicitation.
Each Noteholder is responsible for assessing the merits of the Consent Solicitation. None of the Issuer, the Solicitation Agent, the Tabulation Agent or the Scrutineer has made or will make any assessment of the merits of the Consent Solicitation or of the impact of the Consent Solicitation on the interests of the Noteholders either as a class or as individuals. Furthermore, the Noteholders are solely responsible for complying with all of the procedures for participating in the Consent Solicitation, including submission of Consent Instructions and the registration for Voting and submission of Votes to the Scrutineer. None of the Issuer, the Solicitation Agent, the Tabulation Agent, or the Scrutineer assumes any responsibility for informing Noteholders of any irregularities with respect to the registration or any Votes delivered.
No third-party determination has been or will be obtained that the Consent Solicitation and the Resolution Fee are fair to Noteholders.
The Issuer has not retained and does not intend to retain any unaffiliated representative to act solely on behalf of the Noteholders for purposes of negotiating the terms of the Consent Solicitation or preparing a report concerning the fairness of the Consent Solicitation. The future value of the Notes following the Consent Solicitation may not equal or exceed the value of the Notes prior to the Consent Solicitation. Also, the Issuer has not obtained and will not obtain a fairness opinion from any financial advisor about the fairness to the Issuer or to Noteholders of the Resolution Fee to be received by Noteholders in connection with the Consent Solicitation.
The Consent Solicitation may be subject to legal challenge during the statutory contestation period.
In accordance with the Act on Debt Securities, each Noteholder has the right to contest any Amendment passed in the Voting within one month after the results of the Voting have been announced to the Noteholders. In order to be eligible to file a contestation claim with the competent court, Noteholders that have participated in the Voting have to object in writing to the results of the Voting. Such objection must be addressed to and received by the Scrutineer within two weeks following the announcement of the results. A contestation claim can be based on a breach of law or of the relevant Conditions to the Consent Solicitation. In the case of a successful contestation claim, a court will declare the relevant Amendment void and no Resolution Fee will be paid.
The completion of the Consent Solicitation may be delayed or may not occur at all.
The Issuer is not obligated to complete the Consent Solicitation, which is conditional on, among other things, the receipt of the Requisite Consents, the expiration of the statutory contestation period under the Act on Debt Securities, and the absence of any outstanding contestation proceeding with respect to the Consent Solicitation and/or the Amendments (or, if a contestation claim has been filed, after the settlement of such claim). Even if the Consent Solicitation is completed, it may not be completed on the schedule described in this Consent Solicitation Statement. Furthermore, the Issuer or its affiliates may become involved in litigation by Noteholders or other third parties challenging the terms or validity of the Consent Solicitation. While the Issuer believes that the Consent Solicitation is in compliance with applicable law, the Terms and Conditions and any other existing financing arrangements, the Issuer and its affiliates may not prevail in such litigation. Any litigation may lead to possible delay, amendment, withdrawal or termination of the Consent Solicitation. Accordingly, Noteholders may not receive the Resolution Fee or may be required to wait for an extended period of time before receiving the Resolution Fee.
BACKGROUND AND REASONS FOR THE CONSENT SOLICITATION
The Transaction
On December 10, 2019, the Issuer completed the acquisition of 100% of the shares of ADO Group Ltd. („ADO Group„), which resulted in the Issuer indirectly holding a 33.25% stake in ADO Properties, which was the main asset held by ADO Group. On December 15, 2019, the Issuer entered into the Business Combination Agreement with ADO Properties. The transaction structure agreed in the Business Combination Agreement comprises a voluntary public tender offer by ADO Properties for all outstanding shares of the Issuer in the form of an exchange offer (the „Exchange Offer„). The Issuer anticipates that its boards, after having examined the full offer document pertaining to the Exchange Offer and subject to obtaining market standard fairness opinions from investment banks confirming the fairness of the exchange ratio in financial terms, will recommend to its shareholders to accept the Exchange Offer. The final terms and conditions of the Exchange Offer will be set forth in the full offer document. Through the Transaction, the Issuer and ADO Properties aim to become a top-3 residential real estate company in Germany.
Rating
Following the announcement of the Transaction by ADO Properties, on December 15, 2019, Standard & Poor’s Credit Market Services Europe Limited („S&P„) placed its „BB“ long-term issuer credit rating for the Issuer and its „BB+“ issue ratings on the Issuer’s unsecured notes on CreditWatch, with positive implications. In S&P’s view, the Transaction could enhance the Issuer’s overall credit quality, notably by expanding its portfolio and reducing its debt leverage, as an integrated part of the combined entity. The placement on CreditWatch reflects the possibility that S&P could consider upgrading the Issuer by up to one notch if the Transaction is completed and in line with S&P’s view of the stronger credit quality of the combined entity. S&P will resolve the placement on CreditWatch when the Transaction is finalized, which is expected within the next three to six months.
S&P is established in the European Community and is registered under Regulation (EC) No 1060/2009 of the European Parliament and of the Council of September 16, 2009 on credit rating agencies, amended by Regulation (EC) No 513/2011 of the European Parliament and of the Council of May 11, 2011. A credit rating is not a recommendation to buy, sell or hold securities and may be subject to revision, suspension or withdrawal at any time by the assigning rating organization. There are no assurances that a rating will remain the same for any given period or that a rating will not be lowered by S&P if, in its judgment, circumstances in the future so warrant. A decision by any rating agency to downgrade or withdraw its rating of the Notes and/or the Issuer could impact the Notes. Similar ratings for different types of issuers and on different types of securities do not necessarily mean the same thing. The significance of each rating should be analyzed independently from any other rating.
Change of Control Provisions under the Terms and Conditions
Under Section 6(3)(a) of the Terms and Conditions for each of the Notes, a Change of Control is deemed to have occurred at each time (whether or not approved by the management board or supervisory board of the Issuer) that any person or persons acting in concert within the meaning of § 2 (5) of the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz) (“Relevant Person(s)”) or any person or persons acting on behalf of any such Relevant Person(s), at any time directly or indirectly acquire(s) or come(s) to own (i) more than 50% of the share capital of the Issuer, or (ii) such number of the shares in the capital of the Issuer carrying more than 50% of the voting rights. Therefore, under the respective Terms and Conditions of the Notes, a Change of Control will occur upon completion of the Transaction.
If a Change of Control occurs, each Noteholder has the right, but not the obligation, to require the Issuer to redeem or, at the Issuer’s option, purchase (or procure the purchase of) in whole or in part his Notes, within the Put Period (as defined in the Terms and Conditions), at 101% of the principal amount of such Notes, plus unpaid interest accrued, if applicable.
The Amendments
The Issuer requests that the Noteholders of each Series, by delivery of their Consents, authorize the Amendment in respect of such Series. Each Amendment in respect of a Series, if given effect, would eliminate any obligation of the Issuer to redeem or purchase (or procure the purchase of) the Notes of such Series as a consequence of the anticipated Change of Control that will result when the Transaction is completed. To effect such change, it is proposed to amend each of the Terms and Conditions as shown in underlined text below:
Amendments to the respective Terms and Conditions of the Notes
|
Ein „Kontrollwechsel“ gilt jedes Mal als eingetreten (unabhängig davon, ob der Vorstand oder der Aufsichtsrat der Emittentin zugestimmt haben), wenn eine oder mehrere Personen, die Sinne von § 2 Abs. 5 Wertpapiererwerbs- und Übernahmegesetz (WpÜG) gemeinsam handeln, außer der Berechtigten Person (die „relevante(n) Person(en)“) oder ein oder mehrere Dritte, die im Auftrag der relevanten Person(en) handeln, zu irgendeiner Zeit unmittelbar oder mittelbar (i) mehr als 50 % des Grundkapitals der Emittentin, oder (ii) eine solche Anzahl von Anteilen der Emittentin, auf die mehr als 50 % der Stimmrechte entfallen, erwirbt bzw. erwerben oder hält bzw. halten. „Berechtigte Person“ bezeichnet ADO Properties S.A., eine société anonyme nach luxemburgischen Recht, mit Sitz in 1B, Heienhaff, L-1736 Senningerberg, Großherzogtum Luxemburg, registriert im Luxemburger Handelsregister (Registre de Commerce et des Sociétés, Luxembourg) unter der Nummer B197554 sowie (a) alle mit ihr verbundenen Unternehmen und (b) jede Person, die in ihrer Funktion als Emissionsbank (Underwriter) im Zusammenhang mit einem öffentlichen oder nicht-öffentlichen Angebot von Aktienkapital der Emittentin tätig wird. |
A “Change of Control” shall be deemed to have occurred at each time (whether or not approved by the management board or supervisory board of the Issuer) that any person or persons acting in concert within the meaning of § 2 (5) of the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz, WpÜG) other than the Permitted Owner (“Relevant Person(s)”) or any person or persons acting on behalf of any such Relevant Person(s), at any time directly or indirectly acquire(s) or come(s) to own (i) more than 50% of the share capital of the Issuer, or (ii) such number of the shares in the capital of the Issuer carrying more than 50% of the voting rights. „Permitted Owner“ means ADO Properties S.A., a société anonyme incorporated under Luxembourg law with its registered office at 1B, Heienhaff, L-1736 Senningerberg, Grand Duchy of Luxembourg, and registered with the Luxembourg Register of Commerce and Companies (Registre de Commerce et des Sociétés, Luxembourg) under number B197554, and (a) any of its affiliates and (b) any Person who is acting as an underwriter in connection with any public or private offering of capital stock of the Issuer, acting in such capacity. |
THE CONSENT SOLICITATION
General
On the terms and subject to the conditions set forth in this Consent Solicitation Statement, the Issuer is soliciting Votes from Noteholders in respect of the Amendments. See „Background and Reasons for the Consent Solicitation—The Amendments.“ The Terms and Conditions of each Series provide that, in accordance with the Act on Debt Securities, the Noteholders may, by majority resolution, agree with the Issuer on amendments of the Terms and Conditions with regard to matters permitted by the Act on Debt Securities. According to the Terms and Conditions, resolutions of Noteholders have to be passed by a majority of not less than 50% plus one vote of the votes cast, unless a higher majority is required under mandatory provisions of statutory law or the Terms and Conditions provide for a higher majority. In accordance with the Act on Debt Securities, resolutions – such as the proposed Amendments – that significantly affect the interests of the Noteholders (including any material amendment decision of Noteholders) require a majority of 75% of the votes cast. Each Noteholder shall participate in the Voting in accordance with the nominal amount of the Notes held by such Noteholder. Each Note in the amount of €100,000 shall count as one Vote.
Requisite Consents
Adoption of an Amendment in respect of a Series requires the consent of at least 75% of the Votes cast in respect of such Series. In order to have a quorum in respect of a Series, it is required under the Act on Debt Securities that Noteholders representing at least 50% of the aggregate outstanding principal amount of such Series participate in the Voting (the „Quorum“). The Issuer will publish the results of the Voting as soon as reasonably possible after the end of the Voting Period on its website and in the Federal Gazette (Bundesanzeiger).
If the Scrutineer determines, after the expiration of the Voting Period, that the Quorum in respect of a Series was not met, a physical meeting of the Noteholders of such Series may be convened for the purpose of repeating the voting on the Amendment in respect of such Series. Such a meeting shall be deemed a „second noteholders‘ meeting“ within the meaning of the Terms and Conditions of such Series and the Act on Debt Securities and shall have a quorum if the persons present at the meeting represent at least 25% of the outstanding aggregate principal amount of such Series.
Conditions to the Consent Solicitation
The following Conditions to the Consent Solicitation must be satisfied in respect of an Amendment:
| • |
The receipt of the Requisite Consents to such Amendment; and |
| • |
The expiration of the statutory contestation period under the Act on Debt Securities and the absence of any outstanding contestation proceeding with respect to the Consent Solicitation and/or such Amendment at such time, or if a contestation claim has been filed by a Noteholder, after the settlement of the contestation claim. |
Unless and until all of the Conditions to the Consent Solicitation in respect of a Series are satisfied, no Resolution Fee in respect of a Series will be paid to any Noteholder.
No Inter-conditionality of the Votes
Separate Votes will be held in respect of each Series and the effectiveness of an Amendment with respect to one Series is not dependent on the effectiveness of an Amendment with respect to any other Series, nor on the outcome of the separate consent solicitation to be launched in respect of the 2021 Notes and the 2024 Notes.
Effectiveness of the Amendments
Following receipt of the Requisite Consents to an Amendment, such Amendment will become effective in respect of a Series once
| (i) |
the statutory contestation period under the Act on Debt Securities has expired (provided that no contestation proceeding is outstanding with respect to the Consent Solicitation or such Amendment at such time) or |
| (ii) |
if a contestation claim has been filed, after the settlement of such contestation claim, |
and the amended Terms and Conditions of such Series have been filed with the common safekeeper for Clearstream, Luxembourg and Euroclear and attached to the respective global note(s) representing such Series.
If an Amendment becomes effective in respect of a Series, it will be binding on all Noteholders of such Series and their successors and transferees, whether or not such Noteholders consented to such Amendment or participated in the Voting. See „Risks Factors Related to the Consent Solicitation— If an Amendment in respect of a Series becomes effective, all Notes of such Series will be subject to the terms of, and each Noteholder of such Series will be bound by, such Amendment.“ The Issuer intends to make a public announcement once any Amendments become effective. If the Conditions to the Consent Solicitation are not satisfied in respect of an Amendment, then such Amendment will not become effective.
Termination or Modification of the Consent Solicitation
Notwithstanding anything to the contrary set forth in this Consent Solicitation Statement, the Issuer reserves the right, in its sole discretion, subject to applicable law and certain contractual restrictions, at any time prior to the beginning of the Voting Period, to: (i) terminate the Consent Solicitation for any reason, and/or (ii) modify the form or increase the amount of the consideration to be paid pursuant to the Consent Solicitation. The Issuer will promptly disclose such termination or modification in a public announcement.
Without limiting the manner in which the Issuer may choose to make a public announcement of any termination of the Consent Solicitation, the Issuer shall have no obligation to publish, advertise, or otherwise communicate any such public announcement, other than by making a timely announcement to Noteholders and complying with any applicable notice provisions of the Terms and Conditions and the Act on Debt Securities.
In the event the Consent Solicitation is abandoned or terminated prior to the beginning of the Voting Period, no Resolution Fee will be paid.
Countermotions and Requests for Additional Resolution Items
Each Noteholder of Notes is entitled to submit own resolution proposals regarding the resolution items to be voted on pursuant to this Consent Solicitation Statement (the „Countermotions„). Any Countermotion submitted by a Noteholder prior to the beginning of the Voting Period will promptly be made available by the Issuer to all Noteholders up to the end of the voting period. One or more Noteholders holding together not less than 5% of the outstanding aggregate principal amount of a Series may request that new items are published for resolution (the „Requests for Additional Resolution Items„). Countermotions and Requests for Additional Resolution Items shall be submitted to the Scrutineer via post, facsimile or email at its contact details set forth on the back cover of this Consent Solicitation Statement prior to the commencement of the Voting Period. Countermotions and Requests for Additional Resolution Items should be accompanied by a Special Proof evidencing the status as Noteholder and (in the case of a Request for Additional Resolution Items) the 5% quorum.
Procedures for Voting
Noteholders who need assistance with respect to any of the procedures for participating in the Voting should contact the Tabulation Agent, the contact details for which are on the last page of this Consent Solicitation Statement.
Registration
Participation in the Voting is subject to prior registration by Noteholders. In order to register to participate in the Voting, Noteholders are required to register on the Voting Platform (www.lucid-is.com/adler) by no later than the Registration and Instruction Deadline. The Tabulation Agent will deliver the Votes received from Noteholders to the Scrutineer during the Voting Period. Noteholders who fail to register on the Voting Platform (www.lucid-is.com/adler) by the Registration and Instruction Deadline will not be eligible to vote. As part of the registration, Noteholder must confirm that they are a non-„U.S. Person“ as defined in Regulation S under the Securities Act.
Representation by Proxy
As regards the exercise of voting rights and the submission of Votes and relevant documents, each Noteholder may be represented by a proxy. The power of attorney and any instructions given to the proxy by the principal must be in text form (as defined in Section 126b of the Civil Code). The Scrutineer must receive the power of attorney by no later than the end of the Voting Period by submitting the power of attorney in text form (as defined in Section 126b of the Civil Code). To the extent applicable, the power of representation of the person issuing the power of attorney shall also be received by the Scrutineer by no later than the end of the Voting Period.
Noteholders that are incorporated as corporations, partnerships or other legal entities under German law (e.g., a stock corporation (Aktiengesellschaft), a limited liability company (GmbH), a limited partnership (Kommanditgesellschaft), a general partnership (Offene Handelsgesellschaft), an entrepreneurial company (Unternehmergesellschaft) or a partnership under the Civil Code (Gesellschaft bürgerlichen Rechts)) or under foreign law (e.g., a limited company under English law) are requested to prove the power of representation of their legal representatives and authorized signatories by the end of the Voting Period, in addition to providing proof of the qualification as Noteholder of Notes of the entity or partnership they represent. This may be done by submitting a current excerpt from the relevant register (e.g., commercial register (Handelsregister), register of associations (Vereinsregister)) or by means of another, equivalent certification (e.g., certificate of incumbency, secretary certificate). Such proof of power of representation is not a condition for accepting participating in the Voting.
If Noteholders are represented by legal representatives (e.g., a child by its parents, a ward by its guardian) or by an official administrator (e.g., an insolvency debtor by its insolvency administrator), the legal representative or the official administrator shall prove their statutory power of representation in adequate form (e.g., by means of a copy of the civil status documents (Personenstandsunterlagen) or the warrant of appointment (Bestellungsurkunde)) in addition to providing proof that the person they represent is a Noteholder of Notes.
Procedures for Delivering Votes
Before delivering Votes on an Amendment, Noteholders should read this Consent Solicitation Statement and the procedures set forth herein. The following describes the method that Noteholders wishing to cast a Vote on an Amendment must follow. There are no other methods for delivering Votes and Noteholders must timely deliver Votes in accordance with the following procedures. Only Noteholders or their duly designated proxies may submit, execute and deliver a Vote. Noteholders can vote in favor or against an Amendment.
Voting Period
The Voting Period begins on January 27, 2020, 00:00 a.m. CET and ends on January 29, 2020, 23:59 p.m. CET. Votes submitted to the Tabulation Agent prior to the Registration and Instruction Deadline will be presented by the Tabulation Agent to the Scrutineer in text form (as defined in Section 126b of the German Civil Code (Bürgerliches Gesetzbuch)) within the Voting Period. Votes which are received by the Scrutineer prior to or after the Voting Period will be disregarded and of no effect. In order for Noteholders to ensure that the Tabulation Agent will be able to present Votes on their behalf to the Scrutineer during the Voting Period, Noteholders (or their proxies) must submit Consent Instructions (in addition to registering on the Voting Platform (www.lucid-is.com/adler)) and the Special Proof with Blocking Instruction as described below, prior to the Registration and Instruction Deadline.
Special Proof with Blocking Instruction
In order to Successfully submit a Vote, Noteholders must complete the following steps:
Step 1: Registration and Voting Form to be completed by Noteholders
| • |
Register on the Voting Platform (www.lucid-is.com/adler) by the Registration and Instruction Deadline in order to receive their Unique Instruction Reference. |
Step 2: Consent Instruction
| • |
Submit an electronic Special Proof through the Clearing Systems confirming the voting direction, the name and address of the Noteholder, the Unique Instruction Reference as obtained on the website and a confirmation that the Notes subject to the instruction have been blocked (Notes will be blocked until the end of the Voting Period). |
BOTH OF THESE STEPS ARE REQUIREMENTS FOR VOTING.
See „Risk Factors Related to the Consent Solicitation—Notes of Noteholders that register to participate in the Voting will be blocked from trading until and including the last day of the Voting Period.“
Noteholders must submit the Special Proof with Blocking Instruction by submitting a Consent Instruction in respect of an Amendment. Noteholders not having submitted the Consent Instruction must submit the Special Proof with Blocking Instruction by the Registration and Instruction Deadline in text form as defined in Section 126b of the German Civil Code.
Only Direct Participants may submit Consent Instructions to the relevant Clearing System. Each Noteholder that is not a Direct Participant must arrange for the Direct Participant through which it holds Notes or for the nominee, custodian, intermediary or person acting in a similar capacity for the Noteholder through which it holds the Notes to arrange for their Direct Participant in Clearstream, Luxembourg or Euroclear to submit a Consent Instruction, as the case may be, on its behalf to the relevant Clearing System prior to the deadline(s) specified by such Clearing System and so as to be received by the Tabulation Agent prior to the Registration and Instruction Deadline.
For Noteholders that are not Direct Participants:
| • |
Noteholders may submit a Consent Instruction in respect of an Amendment, which will instruct the relevant Custodian to appoint the Tabulation Agent (or its nominee) as proxy in respect of the Notes in accordance with this Consent Solicitation Statement and the Terms and Conditions and vote in respect of such Amendment, on the terms and conditions set out in this Consent Solicitation Statement, in respect of all of the outstanding Notes held by it, by submitting or arranging for the submission of a duly completed and valid Consent Instruction to the relevant Clearing System in accordance with the requirements of the relevant Clearing System and in the manner specified herein. |
| • |
The Votes will be cast in accordance with the relevant Consent Instruction. Noteholders may submit a Consent Instruction at any time prior to the Registration and Instruction Deadline. |
| • |
Noteholders are advised to check with any nominee, custodian, intermediary or person acting in a similar capacity for the Noteholder whether such nominee, custodian, intermediary or person acting in a similar capacity for the Noteholder would require receipt of instructions to participate in the Voting before the deadlines and within the periods specified in this Consent Solicitation Statement. The deadlines set by each Clearing System for the submission of Consent Instructions may also be earlier than the relevant deadlines specified in this Consent Solicitation Statement. |
Consent Instructions:
| • |
A Noteholder must clearly state in its Consent Instruction:
|
||||
| • |
Separate Consent Instructions must be submitted on behalf of each Noteholder. The authorizations, instructions and requests described in this paragraph must be irrevocable. Noteholders submitting Consent Instructions must also procure that Clearstream, Luxembourg or Euroclear blocks the Notes which are the subject of the Consent Instruction in accordance with the procedures set out in below in „Procedures in respect of the Clearing Systems.“ |
||||
| • |
By submitting a Consent Instruction, the Noteholder is deemed to represent, warrant and undertake to the Issuer, the Solicitation Agent, the Tabulation Agent and the Scrutineer that with effect from, and including, the date on which the Consent Instruction was submitted until the last day (inclusive) of the Voting Period, i.e. January 29, 2020, 23:59 p.m. CET:
|
||||
| • |
The receipt of a Consent Instruction (as applicable) by the relevant Clearing System will be acknowledged in accordance with the standard practices of such Clearing System and will result in the blocking of the relevant Notes in the securities account of the Noteholder (or the account through which they hold the Notes) at the relevant Clearing System so that no transfers may be effected in relation to such Notes. By blocking such Notes in the relevant Clearing System, each Direct Participant will be deemed to consent to have the relevant Clearing System provide details concerning such Direct Participant’s identity to the Issuer, the Solicitation Agent, the Tabulation Agent and the Scrutineer and their respective legal advisers. |
Procedures in respect of the Clearing Systems:
| • |
Each Noteholder must procure that such Notes subject to a Consent Instruction have been blocked in the securities account to which they are credited in the relevant Clearing System with effect as from, and including, the day on which the Consent Instruction is delivered to the Tabulation Agent, so that no transfers of such Notes may be effected at any time after such date until such date that such Notes are unblocked pursuant to the terms set out in this Consent Solicitation Statement. Such Notes should be blocked in accordance with the procedures of the relevant Clearing System and the deadlines required by the relevant Clearing System. The Tabulation Agent shall be entitled to treat the submission of a Consent Instruction as a confirmation that such Notes have been so blocked. The Tabulation Agent may require the relevant Clearing System to confirm in writing that such Notes have been blocked with effect as from the date of submission of the Consent Instruction. In the event that the relevant Clearing System fails to provide such confirmation, the Tabulation Agent shall inform the Scrutineer, and the Scrutineer shall be entitled, but not obliged, to reject the Consent Instruction and if rejected, the Vote in respect thereof shall be treated as not having been made. |
| • |
Noteholders who are not Direct Participants in Clearstream, Luxembourg or Euroclear must contact their nominees, custodians, intermediaries or persons acting in similar capacity for the Noteholders to arrange for their Direct Participant in Clearstream, Luxembourg or Euroclear through which they hold the Notes to submit a Consent Instruction on their behalf to be received by the Tabulation Agent prior to the Registration and Instruction Deadline. Noteholders of Notes that are held in the name of a nominee, custodian, intermediary or person acting in similar capacity for the Noteholder should contact such entity sufficiently in advance of the Registration and Instruction Deadline if they wish to vote in respect of an Amendment and procure that the Notes are blocked in accordance with the procedures of the relevant Clearing System and the deadlines imposed by such Clearing System. |
| • |
Direct Participants in Clearstream, Luxembourg or Euroclear shall be deemed to have given authority to Clearstream, Luxembourg or Euroclear to disclose their identity to the Solicitation Agent, the Tabulation Agent, the Scrutineer and their respective legal advisers upon submission of a Consent Instruction, and as long as such Consent Instruction has not been withdrawn in accordance with the terms herein prior to the provision of such details. |
All questions as to the form of documents and validity, form, eligibility (including time of receipt) and acceptance of a Vote will be determined by the Scrutineer, which determination shall be final and binding subject to applicable law. The interpretation by the Scrutineer and the Issuer of the terms and conditions of the Consent Solicitation (including the instructions thereto) shall be final and binding on all parties, subject to applicable law. To the extent the Scrutineer determines there are any defects or irregularities in connection with deliveries of Votes, these must be cured prior to the end of the Voting Period. None of the Issuer, the Solicitation Agent, the Tabulation Agent, the Scrutineer or any other person shall be under any duty to give notification of defects or irregularities with respect to deliveries of Votes, nor shall any of them incur any liability for failure to give such notification.
NOTEHOLDERS WHO WISH TO VOTE ARE REQUIRED TO DELIVER REGISTRATION AND VOTING FORMS TO THE TABULATION AGENT AND SUBMIT CONSENT INSTRUCTIONS (INCLUDING THE SPECIAL PROOF WITH BLOCKING INSTRUCTION) BY THE REGISTRATION AND INSTRUCTION DEADLINE IN ACCORDANCE WITH THE INSTRUCTIONS SET FORTH HEREIN.
VOTES WILL BE DELIVERED BY THE TABULATION AGENT TO THE SCRUTINEER, NOT TO THE ISSUER OR THE SOLICITATION AGENT.
IN NO EVENT SHOULD A NOTEHOLDER TENDER OR DELIVER CERTIFICATES EVIDENCING SUCH NOTEHOLDER’S NOTES TO THE ISSUER, THE SOLICITATION AGENT, THE TABULATION AGENT OR THE SCRUTINEER AT ANY TIME.
Noteholders may also vote by submitting their votes within the Voting Period directly to the Scrutineer to its contact details set forth on the back page of this Consent Solicitation Statement. In this case Noteholders must submit their Registration and Voting Forms without voting instructions and together with the Special Proof with Blocking Instruction by the Registration and Instruction Deadline to the Tabulation Agent.
No Revocation Rights
Any Consent Instructions received by the Tabulation Agent and any Votes received by the Scrutineer may not be revoked by Noteholders. See „Risk Factors Related to the Consent Solicitation— Noteholders may be unable to revoke their Votes and may experience delays in receiving the Resolution Fee.“
Resolution Fee
In the event that the Requisite Consents in respect of a Series are obtained, the Issuer will pay to each Noteholder of such Series as of the Record Date a one-time cash payment equal to €150 for each €100,000 principal amount of the Notes of such Series held by such Noteholder (the „Resolution Fee„) (i) once the statutory contestation period under the Act on Debt Securities has expired (provided that no contestation proceeding is outstanding with respect to the Consent Solicitation or such Amendment at such time) or (ii) if a contestation claim is filed, within three Business Days after such contestation claim has been settled.
The Resolution Fee is not transferable with a Note. The Issuer will only make payments of the Resolution Fee to persons who were shown as Noteholders of such Series as of the Record Date. Interest will not accrue on or be payable with respect to the Resolution Fee. No Resolution Fee will be paid in respect of a Series if (i) the Consent Solicitation is terminated, withdrawn or otherwise not consummated in respect of such Series or (ii) the Requisite Consents are not obtained in respect of such Series.
Solicitation Agent
The Issuer has retained J.P. Morgan Securities plc to act as Solicitation Agent in connection with the Consent Solicitation. The Solicitation Agent may contact Noteholders regarding the Consent Solicitation, and may, subject to the terms of this Consent Solicitation Statement and in particular the requirements with respect to confirmation that a Noteholder is a non-U.S. Person, request brokerage houses, custodians, nominees, fiduciaries and others to forward this Consent Solicitation Statement, any notice in relation thereto and related materials to Noteholders. The Issuer has entered into a solicitation agency agreement dated January 6, 2020, with the Solicitation Agent, which contains certain provisions regarding payment of fees, expense reimbursement and indemnity arrangements relating to the Consent Solicitation.
At any time, the Solicitation Agent may trade Notes for its own account, or for the accounts of its customers, and accordingly, may hold a long or short position in the Notes and may participate in the Voting with respect to the Notes held for its own account or those of its customers. The Solicitation Agent and its affiliates have provided in the past, and are currently providing, other investment banking, commercial banking and/or advisory services to the Issuer, for which they have received, and expect to receive, customary fees and expenses.
Tabulation Agent
The Issuer has retained Lucid Issuer Services Limited to act as Tabulation Agent in connection with the Consent Solicitation. The Tabulation Agent will answer questions from Noteholders in respect of the Registration and Voting Forms and Consent Instructions. Questions may be directed to the Tabulation Agent at its contact details set forth on the back cover of the Consent Solicitation Statement.
The Tabulation Agent may contact Noteholders regarding the Consent Solicitation, the registration and the Voting, and may, subject to the terms of this Consent Solicitation Statement and in particular the requirements with respect to confirmation that a Noteholder is a non-U.S. Person, request brokerage houses, custodians, nominees, fiduciaries and others to forward this Consent Solicitation Statement, any notice in relation thereto and related materials to Noteholders. The Issuer has entered into an engagement letter with the Tabulation Agent, which contains certain provisions regarding payment of fees, expense reimbursement and indemnity arrangements relating to the Consent Solicitation.
Scrutineer
The Issuer has appointed the notary public Karin Arnold, Schlüterstrasse 45, 10707 Berlin, Germany, to act as Scrutineer in connection with the Solicitation. The Scrutineer will conduct the Voting. The Scrutineer will determine each Noteholder’s entitlement to vote on the basis of evidence presented and prepare a register of the Noteholders entitled to vote. The Scrutineer will also take minutes of the Voting. The Scrutineer will receive a statutory fee for her services. The contact details of the Scrutineer are set forth on the back cover of this Consent Solicitation Statement.
Fees and Expenses of the Consent Solicitation
The Issuer will bear the costs of the Consent Solicitation and pay all fees and expenses in connection with the Consent Solicitation, except for any fees and expenses incurred by any individual Noteholder in connection with the Consent Solicitation.
Contestation Right of Noteholders
In accordance with the Act on Debt Securities, each Noteholder has the statutory right to contest any resolution adopted by the Noteholders within one month after publication of such resolution in the Federal Gazette (Bundesanzeiger). In order to be eligible to file a contestation claim with the competent court, Noteholders that participated in the Voting have to object in writing to the result of the Voting within two weeks following the publication of the resolutions passed in the Federal Gazette (Bundesanzeiger). A contestation claim can be based on a breach of law or the Terms and Conditions.
Requests for Assistance
Requests for assistance in completing and delivering Votes or any documents related to the Consent Solicitation and requests for additional copies of this Consent Solicitation Statement and other relevant documents may be directed to the Tabulation Agent at its contact details set forth on the back page of this Consent Solicitation Statement. Noteholders may also contact their broker, dealer, commercial bank, custodian, trust company or other nominee for assistance concerning the Consent Solicitation.
Additional Terms of the Consent Solicitation
| (1) |
All communications, payments, notices, certificates, or other documents to be delivered to or by a Noteholder will be delivered by or sent to or by it at the Noteholder’s own risk. None of the Issuer, the Solicitation Agent, the Tabulation Agent or the Scrutineer shall accept any responsibility for failure of delivery of a notice, communication or any other document. |
||||||||||||||||||||||||||||||||||||||||||
| (2) |
All acceptances of delivered Votes shall be deemed to be made on the terms set out in this Consent Solicitation. |
||||||||||||||||||||||||||||||||||||||||||
| (3) |
The Scrutineer may determine the validity of a registration or a delivery of Votes. |
||||||||||||||||||||||||||||||||||||||||||
| (4) |
Noteholders are solely responsible for complying with all of the procedures for participating in the Consent Solicitation, including the submission of Registration and Voting Forms and Consent Instructions to the Tabulation Agent. To the extent the Scrutineer determines there are any defects or irregularities in connection with the registration or deliveries of Votes, these must be cured prior to the end of the Voting Period. None of the Scrutineer, the Issuer or any other person shall be under any duty to give notification of any defects or irregularities in a registration or delivery of Votes, nor shall any of them incur any liability for failure to give such notifications. Such registration and delivery of such Votes may be deemed not to have been made until such irregularities have been cured. |
||||||||||||||||||||||||||||||||||||||||||
| (5) |
Without limiting the manner in which the Issuer may choose to make any public announcement, the Issuer shall have no obligation to publish, advertise or otherwise communicate any such public announcement other than by making a timely announcement to Noteholders and complying with any applicable notice provisions of the Terms and Conditions or the Act on Debt Securities. |
||||||||||||||||||||||||||||||||||||||||||
| (6) |
Each Noteholder who delivers Votes will have represented that it is not an affiliate (verbundenes Unternehmen) of the Issuer in the meaning of section 271 paragraph 2 of the German Commercial Code (Handelsgesetzbuch) and does not hold the Notes for the account of the Issuer or any of its affiliates. In accordance with the Act on Debt Securities, voting rights are suspended with respect to Notes which are (i) attributable to the Issuer or an affiliate of the Issuer or (ii) held for the account of the Issuer or any of its affiliates. |
||||||||||||||||||||||||||||||||||||||||||
| (7) |
The submission of a Consent Instruction to the relevant Clearing System will be deemed to constitute an agreement, acknowledgement, undertaking, representation and warranty by the Noteholder and any Direct Participant submitting such Consent Instruction on such Noteholder’s behalf to each of the Issuer, the Solicitation Agent, the Tabulation Agent and the Scrutineer that at the time of submission of the Consent Instruction prior to the Registration and Instruction Deadline and the date of payment of the Resolution Fee:
If the relevant Noteholder is unable to give any of the representations and warranties described above, such Noteholder should contact the Tabulation Agent. |
||||||||||||||||||||||||||||||||||||||||||
| (8) |
Save as otherwise provided herein, any announcement given to a Noteholder in connection with the Consent Solicitation will be deemed to have been duly given if delivered by the Tabulation Agent for onward transmission through the Clearing Systems. All notices will be given or published in accordance with the Terms and Conditions. |
||||||||||||||||||||||||||||||||||||||||||
| (9) |
Each Noteholder submitting a Consent Instruction in accordance with its terms shall be deemed to have agreed to indemnify and hold harmless on an after-tax basis, the Issuer, the Solicitation Agent, the Tabulation Agent, the Scrutineer, and any of their respective affiliates, directors or employees against all and any losses, costs, claims, liabilities, expenses, charges, actions or demands which any of them may incur or which may be made against any of them as a result of any breach of any of the terms of, or any of the representations, warranties and/or undertakings given pursuant to, such Consent Instruction to vote by such Noteholder. |
||||||||||||||||||||||||||||||||||||||||||
| (10) |
None of the Issuer, the Solicitation Agent, the Tabulation Agent, the Scrutineer or any of their respective affiliates, directors or employees makes any recommendation as to whether or not to accept any Consent Solicitation or otherwise to exercise any rights in respect of the Notes. Noteholders must make their own decision with regard to submitting Consent Instructions in respect of an Amendment. |
||||||||||||||||||||||||||||||||||||||||||
| (11) |
All questions as to the validity, form and eligibility of any Consent Instruction (including the time of receipt or the compliance of such Consent Instruction with all applicable laws and regulations, including any regulations published by a Sanctions Authority) or revocation or revision thereof or delivery of Consent Instructions will be determined by the Scrutineer, in its sole discretion, subject to applicable law, which determination will be final and binding. Subject to applicable law, the Scrutineer’s interpretation of the terms and conditions of and validity, form and eligibility of any Consent Solicitation and any vote (including any instructions in the Consent Instruction) shall be final and binding. No alternative, conditional or (subject to the terms herein) contingent Consent Instructions will be accepted. Subject to applicable law, the Scrutineer may: (a) in its absolute discretion reject any Consent Instruction submitted by a Noteholder or (b) in its absolute discretion elect to treat as valid a Consent Instruction, in both cases, not complying in all respects with the terms of any Consent Solicitation or in respect of which the relevant Noteholder does not comply with all the subsequent requirements of these terms and such determination will be final and binding. |
||||||||||||||||||||||||||||||||||||||||||
| (12) |
Unless waived by the Scrutineer any irregularities in connection with any Consent Instruction must be cured within such time as the Scrutineer shall in its absolute discretion determine. None of the Issuer, the Solicitation Agent, the Tabulation Agent, the Scrutineer or any of their respective affiliates, directors or employees or any other person will be under any duty to give notification of any defects or irregularities in such Consent Instruction, nor will any of such entities or persons incur any liability for failure to give such notification. |
||||||||||||||||||||||||||||||||||||||||||
| (13) |
If any communication (whether electronic or otherwise) addressed to the Scrutineer or the Tabulation Agent is communicated on behalf of a Noteholder by an attorney-in-fact, custodian, trustee, administrator, director or officer of a corporation or any other person acting in a fiduciary or representative capacity (other than a Direct Participant in its capacity as such), that fact must be indicated in the communication, and a power of attorney or other form of authority, in a form satisfactory to the Scrutineer, must be delivered to the Tabulation Agent by the end of the Voting Period. Failure to submit such evidence as aforesaid may result in rejection of the acceptance. Neither the Scrutineer nor the Tabulation Agent shall have any responsibility to check the genuineness of any such power of attorney or other form of authority so delivered and may conclusively rely on, and shall be protected in acting in reliance upon, any such power of attorney or other form of authority. |
||||||||||||||||||||||||||||||||||||||||||
| (14) |
None of the Issuer, the Solicitation Agent, the Tabulation Agent, the Scrutineer or any of their respective affiliates, directors or employees accepts any responsibility whatsoever for failure of delivery of any Consent Instruction or any other notice or communication or any other action required under these terms. The Scrutineer’s determination in respect of any Consent Instruction or any other notice or communication shall be final and binding. |
||||||||||||||||||||||||||||||||||||||||||
| (15) |
If, in respect of a Series, (i) the Requisite Consents are not obtained or (ii) the Consent Solicitation is terminated prior to the beginning of the Voting Period, no Resolution Fee in respect of such Series will be paid or become payable to Noteholders. If an Amendment becomes effective in respect of a Series, it will bind all current Noteholders of such Series and any subsequent Noteholders, regardless of whether such Noteholders consented to such Amendment or participated in the Voting. |
Publication on Website
This Consent Solicitation Statement will be published on the website of the Issuer under https://adler-ag.com/en/investor-relations/corporate-bonds/ or https://adler-ag.com/investor-relations/anleihen/.
TAX CONSEQUENCES
In view of the number of different jurisdictions where tax laws may apply to a Noteholder, this Consent Solicitation Statement does not discuss the tax consequences for Noteholders arising from the Consent Solicitation or the Amendments or the receipt (where applicable) of the Resolution Fee. Noteholders are urged to consult their own professional advisers regarding the possible tax consequences of these transactions under the laws of the jurisdictions that apply to them, as well as the possible tax consequences of holding the Notes after the effectiveness of any Amendment. Noteholders are liable for their own taxes and have no recourse to the Issuer, the Solicitation Agent or the Tabulation Agent with respect to any taxes arising in connection with the Consent Solicitation.
THE ISSUER
ADLER Real Estate Aktiengesellschaft
Joachimsthaler Straße 34
10719 Berlin
Germany
SOLICITATION AGENT
J.P. Morgan Securities plc
25 Bank Street
Canary Wharf
E14 5JP London
United Kingdom
Telephone: +44 20 7134 2468
E-mail: liability_management_EMEA@jpmorgan.com
| TABULATION AGENT
Lucid Issuer Services Limited |
SCRUTINEER
Karin Arnold |
LEGAL ADVISERS
| To the Issuer as to German and U.S. law: White & Case LLP |
To the Solicitation Agent as to German and U.S. law: Clifford Chance Deutschland LLP |
Kommentar hinterlassen