Invitation to the second Creditors Meeting of the Noteholders on 26 October Laurèl GmbH

Transcription

1 Invitation to the second Creditors Meeting of the Noteholders on 26 October 2015 by Laurèl GmbH a limited liability company with its registered office in Aschheim, Administrative District of Munich, entered in the Commercial Register of the Munich Local Court under HRB ( the Issuer or the Bond Debtor and together with its subsidiary Laurèl ) regarding the 7.125% bearer bonds 2012/2017 ISIN: DE000A1RE5T8 / WKN: A1RE5T, divided into 20,000 bearer notes ranking pari passu with each other with a nominal amount of EUR 1, (each individually a Note and all Notes collectively the Bond ) The Issuer herewith invites all holders of Notes pertaining to the Bond (individually and collectively the Creditors or Noteholders ) to attend the Creditors meeting of the Noteholders (the Noteholders Meeting ) on Monday, 26 October 2015, at a.m. (CET) at NH Hotel München Ost, Room Paris, Einsteinring 20, Aschheim, Administrative District of Munich, Germany. Admission is from 9.00 a.m. (CET). Introduction Pursuant to the provisions of Section 5 (1) of the German Debt Securities Act (Schuldverschreibungsgesetz, SchVG ), the terms and conditions of the Bond may provide that the creditors of the same bond pursuant to Chapter 2 of the SchVG consent to amendments to the terms and conditions of the Bond by means of majority resolutions. The terms and conditions of the Bond provide for the adoption of corresponding resolutions of the Creditors of the Bond in Section 12 (a). Page 1/12

2 The Issuer had already pursuant to Section 9(1) SchVG invited the Noteholders to a first Noteholders Meeting on 31 August 2015 in Aschheim, Administrative District of Munich (the First Noteholders Meeting ). At the First Noteholders Meeting, however, the Noteholders were unable to adopt any resolutions because the required quorum for the adoption of resolutions of 50% of the outstanding Notes (Section 15 (3) sentence 1 SchVG was not achieved. In view of the fact that the First Noteholders Meeting was unable to adopt any resolutions, the Issuer now convenes this Second Noteholders Meeting, which is deemed a second meeting as defined by Section 15 (3) sentence 3 of the German Debt Securities Act (SchvG)) and is to be held as a meeting which has to be attended in person. The Issuer has in the meantime in its notification of 7 September 2015 announced that it has sold the rights to use the trademark Laurèl in the People s Republic of China to a company in Hong Kong. The transaction is still subject to the reservation that the normal closing conditions are met. It is expected that the purchase price will be paid in the middle of November The proceeds from the sale of the Chinese trademark rights provide the Issuer in the context of the current corporate restructuring with the necessary financial leeway for the planned next steps and to meet its financial obligations. The Issuer will therefore pay the interest due on the Notes on 16 November 2015 in full if the sales of the trademark rights is carried out as planned. The Issuer is also continuing the process initiated in July 2015 to look for a strategic investor, with whose support the growth plans with their focus on Europe and the USA are to implemented more quickly. The Issuer still wishes at a second Noteholders Meeting to give the Noteholders the possibility to elect a Joint Representative. The other agenda items are being amended as following in line with the changed situation: The intended extension of the term of the Bond previously set forth in Agenda Item 1 of the First Noteholders Meeting (Adoption of resolution on the maturity date for the redemption of the Bond) is no longer put to vote by the Issuer; The intended regulation of the interest charged on the Bond previously set forth in Agenda Item 2 of the First Noteholders Meeting (Adoption of a resolution on a suspension, and respectively, reduction, of the interest charged on the Bond) is now being amended by the Issuer such that only the Joint Representative who is to be elected is to be authorised to decide on the Page 2/12

3 deferral for a period of up to six months of the interest claims which come into existence on 16 November This authorisation should only be used if the sale of the trademark rights for China cannot, contrary to expectations, be carried out as planned or the Issuer does not have the required liquidity at its disposal to pay the interest. Agenda Item 3 of the First Noteholders Meeting (Resolution on the further restrictions of distributions to the shareholders) remains unchanged. Agenda Item 4 of the First Noteholders Meeting (Resolution on the appointment of a joint representative for all Noteholders) remains unchanged, whereby the Issuer now proposes that One Square Advisory Services GmbH, which has its registered office in Munich, is elected as joint representative. Agenda Item 5 (Resolution on the authorisation of the Joint Representative), which was added to the agenda of the First Noteholders Meeting on the basis of a request for an additional agenda item from the lawyer Mr Christian H. Gloeckner of 27 September 2015, is no longer an item on the agenda because this request for an additional agenda item was withdrawn. The numbering of the previous agenda items changed due to the deletion of agenda item 1. A. Agenda The Issuer proposes to the Noteholders that they adopt the following resolutions: 1. Adoption of a resolution on the suspension of interest charged on the Bond The Joint Representative to be elected under agenda item 3 is authorised to decide on the deferral for a period of up to six months of the interest payment due on the Notes on 16 November The Joint Representative is also authorised to declare a temporary waiver of termination rights pursuant to Section 3 (a) of the terms and conditions of the Bond due to interest not being paid. Page 3/12

4 The Joint Representative is in connection with the above authorisation authorised to represent the Noteholders with respect to all measures, acts and declarations which are necessary or appropriate for the implementation and execution of the above deferral of interest and the above waivers of any termination rights of the Noteholders, in particular also give consent to changes to the terms and conditions of the Bond which are related to the exercise of the above authorisations. The Noteholders are not authorised in connection with the above authorisations given to the Joint Representative to assert their rights themselves; they are not in particular authorised during the period in which the Joint Representative is authorised to themselves request, seriously demand or enforce the payment of claims for the payment of interest or to exercise any termination rights due to interest deferral. The authorisation of the Joint Representative is in cases of doubt to be interpreted broadly. 2. Adoption of a resolution on the further restriction of distributions to shareholders In Section 8 of the terms and conditions of the Bond (Limitation on certain payments), the Issuer has undertaken not to carry out either itself or via a subsidiary any payment of dividends or other distributions to direct or indirect shareholders which exceed 50% of the balance sheet profit as shown in the annual financial statements in accordance with the German Commercial Code (Handelsgesetzbuch HGB) on which the dividend payment is in each case based. The possibility to distribute half of the balance sheet profit is to be deleted for the term of the Bond. Section 8 of the terms and conditions of the Bond is amended and reworded as follows: The Issuer undertakes not to carry out either itself or via a subsidiary any dividend payment or other distribution to any direct or indirect shareholder. 3. Adoption of a resolution on the appointment of a joint representative for all Noteholders Page 4/12

5 One Square Advisory Services GmbH with registered office in Munich is appointed as joint representative for all Noteholders (the Joint Representative ). He is authorised to take all measures which are necessary to implement the resolutions of the Noteholders Meeting. The scope of the tasks and authorisations of the Joint Representative is based, insofar as the Noteholders Meeting does not entrust him with additional tasks or grant additional authorisations to him, on the provisions of the German Debt Securities Act (Schuldverschreibungsgesetz SchVG). The Joint Representative receives appropriate remuneration. The liability of the Joint Representative with respect to the Noteholders is limited to wilful intent and gross negligence; liability for gross negligence is limited to the amount of EUR 1.0 million (in words: one million euros). Legal consequence of the resolutions Resolutions adopted with the required majority are binding for all Noteholders, even if they were not involved in the adoption of the resolution or have voted against one or several resolution proposals. Insofar as the Joint Representative is authorised to assert the rights of Noteholders, individual Noteholders are not authorised to assert these rights independently, unless this is expressly stipulated by the majority resolution. The Joint Representative must report to the Noteholders about his activities. B. Registration, eligibility, voting rights, proof 1. For participation in the Noteholders Meeting or exercise of the voting rights, the registration of the Noteholders is necessary prior to the Noteholders Meeting (see 12 (c)(i) of the terms and conditions of the Bond in conjunction with Section 10(2) SchVG). The registration must be submitted at the latest on the third calendar day prior to the Noteholders Meeting, in other words no later than on 23 October 2015 (receipt 24:00 hours CEST), by post to the following address: Better Orange IR & HV AG Laurèl GmbH Anleihegläubigerversammlung Haidelweg Munich Germany Page 5/12

6 or by fax to the fax number +49 (0)89 / or by to the address: Laurel-meldedaten@better-orange.de (Please avoid multiple registrations!). A sample form for the registration is accessible for download on the website of the Issuer at Those Creditors who fail to submit their registration to the address mentioned in this Section B.1 at the latest by 23 October 2015 (receipt by 24:00 hours CEST) shall not be eligible to attend or vote at the Noteholders Meeting. In this case, authorised representatives are also not permitted to attend or vote. 2. Each Creditor who registers for the Noteholders Meeting in due time and proves that he/she is a holder of Notes pertaining to the Bond at the time of the vote at the Noteholders Meeting as specified in B.4. at the latest upon admission to the Noteholders Meeting shall be eligible to participate in the Noteholders Meeting. We recommend, however, that all documents are already submitted by Friday, 23 October 2015 in order to speed up the process of checking participation eligibility on the day of the Noteholders Meeting. 3. Each Creditor shall participate in the Noteholders Meeting in accordance with the nominal amount or the notional amount of its entitlement to the Notes. As long as the entitlement to the Notes lies with, or the Notes are held for the account of, the Issuer or any of its affiliates (Section 271(2) of the German Commercial Code (HGB)), the right to vote in respect of such Notes shall be suspended. The Issuer or any of its affiliates may not transfer the Notes, of which the voting rights are suspended, to another person for the purpose of exercising such voting rights instead of them. Section 6 SchVG shall otherwise apply. 4. Creditors must prove their eligibility to participate in the Noteholders Meeting and shall provide, in each case in text form (Section 126b of the German Civil Code (BGB)), the following proof: special confirmation from the custodian bank as specified in. a) below ( Special Confirmation ); and an instruction from the custodian bank as specified in b) below to the effect that the partial notes of the Creditor are held blocked from the day of issuance of the Special Confirmation until the end of the Noteholders Meeting ( Blocking Notice ). Page 6/12

7 A sample form for the Special Confirmation plus the Blocking Notice which may be used by the custodian bank is available for download on the website of the Issuer at a) Special Confirmation A Special Confirmation is a certificate issued by the custodian bank containing the full name and the full address of the Creditor as well as the number and/or the aggregate nominal amount of Notes credited to the securities account of this Creditor maintained by the custodian bank on the day of issuance of such certificate. Those Creditors who fail to present or transmit the Special Confirmation in text form (Section 126b of the German Civil Code (BGB)) at the latest upon admission to the Noteholders Meeting shall not be eligible to attend or to vote. In this case, authorised representatives are also not permitted to attend or to vote. b) Blocking Notice A Blocking Notice issued by the custodian bank is a notice stating that the Notes pertaining to the Bond held by the Creditor in question are held blocked by the custodian bank at least from the day of issuance of the Special Confirmation until the end of the Noteholders Meeting on 26 October Those Creditors who fail to have their notes blocked or have them blocked too late, or who have not presented or transmitted proof of the blocking in text form (Section 126b of the German Civil Code (BGB)) at the latest upon admission to the Noteholders Meeting shall not be eligible to attend or to vote. In this case, authorised representatives are also not permitted to attend or to vote. Please contact your custodian bank in due time to comply with the formalities of the Special Confirmation and the Blocking Notice. Please use the Special Confirmation and Blocking Notice form or the document issued accordingly by your custodian bank for this. Page 7/12

8 5. Statutory representatives of Creditors who are legal entities or partnerships under German law (e.g. a stock corporation (Aktiengesellschaft), a limited liability company (Gesellschaft mit beschränkter Haftung), a limited partnership (Kommanditgesellschaft), a general partnership (Offene Handelsgesellschaft), an entrepreneurial company (Unternehmergesellschaft) or partnership under the BGB (GbR)) or under foreign law (e.g. a limited company under English law) are requested to prove their powers of representation at the latest upon admission to the Noteholders Meeting in addition to providing proof of the qualification as Creditor of the entity or partnership they represent, pursuant to Section B.4 of this invitation. This may be done by transmitting or presenting a current excerpt from the relevant register (e.g. commercial register (Handelsregister), register of associations (Vereinsregister)) or by means of another, equivalent certificate (e.g. certificate of incumbency, secretary certificate). The presentation of such certificate is not a requirement for the participation in the Noteholders Meeting 6. If Creditors 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 is requested to prove his/her 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 (Bestallungsurkunde)) at the latest upon admission to the Noteholders Meeting in addition to providing proof that the person they represent is a Creditor pursuant to B Upon valid registration and proof of entitlement to participate in the Noteholders Meeting and to exercise the voting right, a voting card will be issued for the respective Creditor upon admission to the Noteholders Meeting. 8. Except for the registration, which has to be made pursuant to Section B.1. above at the latest on 23 October 2015 (receipt by hours CEST), the right to attend the Noteholders Meeting shall be proven upon admission to the Noteholders Meeting at the latest. Merely for the purpose of facilitating and accelerating the verification of eligibility and to reduce waiting time for admission to the Noteholders Meeting, the Creditors are kindly asked to transmit the evidence under B.4. to B.6., where relevant, as well as the power of attorney pursuant to Section C. by post to the following address: Page 8/12

9 Better Orange IR & HV AG Laurèl GmbH Anleihegläubigerversammlung Haidelweg Munich Germany or by fax to the fax number +49 (0)89 / or by to the address: Laurel-meldedaten@better-orange.de at the latest by 23 October 2015 (receipt hours CEST) (please only send once). Upon receipt of the registration and the respective proof required, a voting card will be deposited for the Creditor at the admission to the Noteholders Meeting. C. Representation by authorised representatives in the Noteholders Meeting 1. Each Creditor who has registered in due time pursuant to Section B. of this invitation may be represented by an authorised representative in the Noteholders Meeting (Section 14 SchVG). The custodian bank, a proxy who is provided by the Issuer (see in this connection C.3) or a discretionary third party (such as an acquaintance), but not the notary commissioned with recording the minutes of the Noteholders Meeting, may be considered as authorised representatives. 2. The voting right may be exercised by the authorised representative. The power of attorney and any instructions given to the representative by the principal must be in text form as defined in Section 126b of the German Civil Code (BGB). A form that may be used for granting power of attorney is available for download on the website of the Issuer ( The authorised representative shall by no later than upon admission to the Noteholders Meeting evidence the power of attorney granted to him/her in addition to the proof of the status as Creditor of the person he/she is representing pursuant to B.4 of this invitation. 3. Creditors who do not attend the Noteholders Meeting in person and who do not wish to grant other discretionary third parties a power of attorney to do so, may grant power of attorney with voting instructions, in each case individually and with the right to grant substitute powers of attorney, to Messrs Thomas Wagner and Marcus Graf, both employees of Better Orange IR & HV AG, as the proxy nominated by the Issuer (the Issuer Proxy ). The Issuer Proxy may only Page 9/12

10 exercise his power of representation granted to the extent that he has received instructions on the resolution proposals under Section A. of this invitation. He is obliged to vote as instructed. The Issuer Proxy may not exercise the voting right in votes, the subject of which is not known to the Noteholders Meeting in advance. In such cases, the Issuer Proxy will depending on the voting procedure abstain from voting or not participate in the vote. The same shall apply in the case of voting on a Countermotion without express instruction. The Issuer Proxy cannot be commissioned to make objections, bring forward a resolution proposal or pose questions. A form that may be used for granting power of attorney and instructions to the Issuer Proxy is also available for download on the website of the Issuer ( Creditors who wish to make use of this possibility are requested for this purpose to send the completed and signed power of attorney form including instructions by post to the following address: Better Orange IR & HV AG Laurèl GmbH Anleihegläubigerversammlung Haidelweg Munich Germany or by fax to the fax number +49 (0)89 / or by to the address Laurel-meldedaten@better-orange.de at the latest by 23 October 2015 (receipt by hours CEST) and, at the same time, to deliver proof of the status as Creditor, pursuant to Section B.4 of this invitation and, where relevant, proof of the power of representation, pursuant to Section B.5/B.6 of this invitation as well. D. Countermotions and Requests for Additional Resolution Items 1. Each Creditor is entitled to submit own resolution proposals regarding the resolution subjects on the agenda ( Countermotion ) in the Noteholders Meeting. In this regard, the provisions of the SchVG shall apply. If a Creditor announces a Countermotion in due time to the Issuer, including the exact wording, the Issuer will provided it has properly received in due time make the submitted Countermotion accessible to all Creditors immediately on the website of the Issuer ( Page 10/12

11 2. Creditors jointly holding 5 per cent of the outstanding Notes pertaining to the Bond ( 5% Quorum ) may request in compliance with the provisions of the SchVG and of the terms and conditions of the Bond that further items are presented for resolution ( Request for Additional Resolution Items ). Such a request must be submitted in due time to the Issuer so that it can be made accessible no later than three days before the Noteholders Meeting to the other Creditors in the Federal Gazette and on the website of the Issuer ( 3. Countermotions and Requests for Additional Resolution Items are to be sent to the Issuer at the following address: Laurèl GmbH Management Board Einsteinring Aschheim / Munich Germany or by fax to the fax number or by to anleihe@laurel.de. These should be accompanied by proof of the status as Creditor and in the case of a Request for Additional Resolution Items proof of the 5% Quorum, in each case as specified in Section B.4. a) of this invitation. E. Documents From the date of the invitation up to the date of the Noteholders Meeting, the following documents will be accessible to the Creditors on the website of the Issuer ( This invitation to the Noteholders Meeting and the exact terms and conditions it contains, upon which participation in the Noteholders Meeting and the exercise of the voting right depend; the sample form for the registration; the sample form for the Special Confirmation and Blocking Notice; the sample form for granting the power of attorney to third parties; Page 11/12

12 the sample form for granting the power of attorney and instructions to the Issuer Proxy; answers to frequently asked questions relating to the Noteholders Meeting (FAQs) and the prospectus including the existing terms and conditions of the Bond. At the request of Creditor, he/she will be send copies of the above specified documents without undue delay and free of charge. This request is to be sent by post, fax or to: Laurèl GmbH Management Board Einsteinring Aschheim / Munich Germany or by fax to the fax number or by to anleihe@laurel.de. Aschheim/Munich, September 2015 Laurèl GmbH The Management Page 12/12