- Convenience Translation - SCHIRP NEUSEL & PARTNER Rechtsanwälte mbb

Transcription

1 SCHIRP NEUSEL & PARTNER Rechtsanwälte mbb Singulus Technologies AG Singulus Gläubigerversammlung Hanauer Landstraße Kahl am Main Only by fax: / Berlin, 10 February 2016 Your contact: Mrs Müller Direct tel.: -46 Direct fax: mueller@ssma.de Our reg. no.: /rajb/rajb (please state on every communication) Counter-motions to the Agenda for the Second Meeting of Noteholders of the Singulus-Bond 2012/2017, ISIN: DE000A1MASJ4 / WKN: A1MASJ, to be held on 15 February 2016 in Frankfurt am Main Dear Dr. Rinck, dear Mr. Ehret, Referring to the Second Meeting of Noteholders of the Singulus-Bond referred to above, we hereby wish to inform you that we act as representatives of Mr. Thomas Schmiegel [ ]. A form of proxy for the Meeting of Noteholders was already received by you. Our client is the holder of Notes of Singulus AG (ISIN: DE000A1MASJ4 / WKN: A1MASJ) with a total nominal value of [ ]. A blocking notice proving his ownership was already received by you.

2 In the name and on behalf of our client, we hereby announce the following counter-motions: 1. In respect of item 3 on the Agenda ( Resolution on the Exchange of Notes for Acquisition Rights ), we request to remove item 3 from the Agenda. The Issuer proposes to convert the Notes into acquisition rights, i.e. into rights to acquire new shares on the one hand and into rights to acquire a new secured bond on the other hand. As there is much concern about whether Singulus Technologies AG can survive on the market, this concept is preferable to insolvency proceedings, from the Noteholders point of view, only if the value of security provided for the new bond would be equivalent to the insolvency dividend to be expected otherwise. Only in this case would the Noteholders position not be less favourable than in case of insolvency. Therefore, we generally welcome the idea behind the presented concept. However, the Noteholders are not only asked to vote on an idea. Rather, the Noteholders are asked to approve the overall concept in a binding manner, although not all aspects of the concept have yet been fixed. In particular, it still remains unclear how the new bond is to be collateralised. 3 of the terms and conditions of the New Secured Bond only states criteria which are to be used as a basis for negotiating the specific security to be provided. This is not a sufficient basis for voting! Noteholders must be able to form an independent opinion on whether or not they actually consider the security provided to be of sufficient value. There are concerns, for example, that technologies relating to Blu-ray products are furnished as security, for which a market no longer exists. In our view, the negotiations of the concept first need to be finalised, and in particular the specific security to be provided for the new bond must be clarified, before the Noteholders can vote on this issue.

3 2. In respect of items 4-13 on the Agenda, we request to remove these items from the Agenda if item 3 is not resolved. The measures proposed in the subsequent items on the Agenda are only reasonable in connection with a restructuring. If no such restructuring is resolved, there this no reason for these measures. 3. In respect of item 6 on the Agenda ( Resolution on a waiver of any termination right which may exist in accordance with 7 (a) (vi) (B) second half-sentence of the Terms and Conditions of the Singulus-Bond (or offers or makes an arrangement for the benefits of its creditors generally), we request to add the following: Any terminations effectively declared by Noteholders continue to be effective. The Issuer proposes that Noteholders should waive their termination rights in accordance with 7 (a) (vi) (B) second half-sentence of the Terms and Conditions (or offers or makes an arrangement for the benefits of its creditors generally) until 23 March To the extent that Noteholders have already declared termination, such terminations are not covered by the wording of the waiver as proposed by the Issuer, since a waiver can only relate to the future. Accordingly, anyone who has already exercised his termination right may no longer waive such right. Furthermore, effective terminations may not be retracted retroactively by way of resolution. Notices of termination are given by unilateral declarations of intent which require receipt. They become effective either immediately or within a (statutory or contractual) notice period. Neither is it necessary that the recipient consents to the notice, nor must other requirements be met. A peculiarity of bonds is that a bondholder continues to be a bondholder, despite an effective termination, for as long as the issuer does not fulfil the bondholder s claims for repayment of the bond s nominal amount and interest due for payment

4 ( gestreckter Untergang ). Nonetheless, also in this case has the termination of the contractual relationship been initiated irrevocably by declaring the termination. Therefore, an effective declaration of termination can no longer be retracted retroactively. At best, a new contract may be concluded with the aim of continuing the previous contract. This would require a relevant declaration of intent by the issuer and by the bondholder alike. However, since a lot of issues relating to such notice of termination are not finally clarified from a legal perspective, and for the purposes of legal certainty and to avoid any judicial proceedings which would otherwise be necessary, the continued effectiveness of any terminations which have already been declared effectively should be expressly noted in the resolution. 4. In respect of item 6 on the Agenda ( Resolution on a waiver of any termination right which may exist in accordance with 7 (a) (vi) (B) second half-sentence of the Terms and Conditions of the Singulus-Bond (or offers or makes an arrangement for the benefits of its creditors generally), we request to add the following: Any payments due as a result of terminations effectively declared by Noteholders (in particular interest payments and repayment of the nominal amount) continue to be due for payment. For the purpose of legal clarity and legal certainty, in addition to the express note that effectively declared terminations continue to be effective, it should also be clarified that any consequent payment claims of the relevant Noteholders continue to be due for payment. 5. In respect of item 7 on the Agenda ( Resolution on a waiver of any termination right which may exist in accordance with section 490 of the German Civil Code (BGB) ), we request to add the following: Terminations which have already been declared effectively by Noteholders will continue to be effective.

5 See reasons given for counter-motion In respect of item 7 on the Agenda ( Resolution on a waiver of any termination right which may exist in accordance with section 490 of the German Civil Code (BGB) ), we request to add the following: Any payments due as a result of terminations effectively declared by Noteholders (in particular interest payments and repayment of the nominal amount) continue to be due for payment. See reasons given for counter-motion In respect of item 8 on the Agenda ( Resolution on the further authorisation and empowerment of the Joint Representative appointed on 29 October 2015 for all Noteholders to assert the Noteholders rights ), we request to remove paragraph d) from the Agenda. The Issuer proposes that the Joint Representative should retract Noteholders terminations already declared. We consider this to be legally ineffective. Furthermore, it is not in the Noteholders interest. An effective notice of termination may not be retracted retroactively, see reasons for counter-motion 3. In particular, the Meeting of Noteholders cannot replace the consent that must be given by the Noteholder concerned to the continuation of the previous contract. The powers of a Meeting of Noteholders are regulated in the German Bond Act (Schuldverschreibungsgesetz SchVG ). The majority of Noteholders may arrange contractual relationships for all Noteholders, but may not newly establish such contractual relationships. Accordingly, the Issuer s proposal is precluded by legal concerns already. It is not without reasons that the Issuer provided for the reservation to the extent legally permissible in its proposal.

6 Irrespective of the question of effectiveness, we believe it cannot be in the Noteholders interest that the Meeting of Noteholders, where only 25% of outstanding Notes may be represented, should be able to retroactively retract an individual s declaration of intent which has already been made effectively. Yours sincerely, [Signature illegible] Julia Breier-Struß Attorney-at-law Specialist attorney for banking and capital markets law

7 Statement by SINGULUS TECHNOLOGIES AG regarding the countermotions A to G by Mr. Thomas Schmiegel dated 10 February 2016 Please note, that this publication of the counter-motions submitted by Mr. Thomas Schmiegel, represented by Schirp Neusel & Partner Rechtsanwälte mbb, does not constitute a declaration of consent by SINUGULUS TECHNOLOGIES AG to the announced amendments to the resolution proposals in accordance with these counter-motions. 1. Counter-motion number 1 and 2 (= counter motions A and B) Contrary to the statements made in the reasoning for counter-motion number 1, the noteholders shall not vote on ideas only, but on a precise restructuring concept, based on a restructuring opinion, drawn up in accordance with the standard IDW-S6 and coordinated with the joint representative of the noteholders, One Square Advisory Services GmbH, and as the supplementary motion by the noteholder Prime Capital Debt SCS-SICAV SIF supported by the Company shows a concept that is approved by important noteholders. The concept of the collateral security package for the new secured bond to be issued by the Company will most likely be agreed in a term sheet negotiated by the Company and the joint representative before the meeting of noteholders on 15 February Such term sheet will be further explained to interested noteholders during such meeting of noteholders. 2. Counter-motions number 3 to 6 (= counter motions C to F) The Company also does not support the counter motions in numbers 3 to 6. In the opinion of the Company, the noteholders are not entitled to terminate the notes. However, by restricting the termination right, more legal certainty for the intended restructuring process shall be achieved. Furthermore, the Company wishes to prevent single noteholders, which do not support the restructuring concept, from disturbing the restructuring process by declaring their termination rights and by taking legal actions to the detriment of noteholders voting in favor of the restructuring concept. We will be in need of all of our resources, in order to concentrate on the realization of the restructuring concept. In addition, the German Federal Court of Justice (BGH) made clear, in a recently published decision dated 8 December 2015 (XI ZR 488/14), that majority votes of noteholders in accordance with para 5 of the German Debenture Bond Act (SchvG) are also binding for noteholders having exercised their termination rights. In this decision, the BGH decided on a case, in which the majority of noteholders resolved to exchange the notes in acquisition rights for new shares and new secured notes. The BGH held, that once this majority vote made in the meeting of noteholders becomes effective, an exchange is also binding on the notes, for which noteholders have already declared a termination. The termination becomes unfounded and thus noteholders have no right for repayment of the nominal amount of the terminated note.

8 As to the interest deferral proposed by the Company in agenda item 4, it is further recalled, that the Company s restructuring concept is based on the assumption that interests due on 23 March 2016 no longer have to be paid, but are henceforth accrued interests, which (together with the principal claim) are to be exchanged into new shares and new secured bonds. 3. Counter-motion number 7 (= counter motion G) Further, the Company does not support the counter-motion in number 7. In the opinion of our legal advisors, there are convincing arguments, that the joint representative can be authorized to effectively withdraw the declarations of termination made earlier. Apart from that, in the aforesaid decision the BGH made clear, that such a withdrawal of terminations already declared is not necessary to achieve, that the majority vote made in the meeting of noteholders is also binding for notes that have already been terminated. *** The Management Board hereby would like to call for you to agree to the resolution proposals to agenda items 4 to 7 as well as 11 to 13, as they were each published in the Federal Gazette. Kahl am Main, as of February 2016 SINGULUS TECHNOLOGIES AG The Board of Directors