DRAFT OF THE MERGER AGREEMENT

Transcription

1 DRAFT OF THE MERGER AGREEMENT between Cembra Beteiligungs AG having its principal place of business in Vienna Am Stadtpark 9, 1030 Vienna, Austria commercial register number FN f as the assigning company, on the one hand, and Raiffeisen International Bank-Holding AG having its principal place of business in Vienna Am Stadtpark 3, 1030 Vienna, Austria commercial register number FN m as the acquiring company, on the other hand

2 2 Introduction A. Cembra Beteiligungs AG, commercial register number FN f, having its principal place of business in Vienna and its business address at Am Stadtpark 9, 1030 Vienna, Austria (hereinafter referred to as "Cembra"), is a stock corporation under Austrian law with a share capital of EUR 5,000,000.00, divided into 5,000,000 no-par-value bearer shares. The company was established on August 19, The sole shareholder of Cembra is Raiffeisen International Beteiligungs GmbH (hereinafter referred to as "RI Bet"), Am Stadtpark 9, 1030 Vienna, entered into the commercial register of the Commercial Court of Vienna under the number FN m. The sole shareholder of RI-Bet is Raiffeisen Zentralbank Österreich Aktiengesellschaft, commercial register number FN t, having its principal place of business in Vienna and its business address at Am Stadtpark 9, 1030 Vienna, Austria (hereinafter referred to as "RZB"), B. Raiffeisen International Bank-Holding AG, commercial register number FN m, having its principal place of business in Vienna and its business address at Am Stadtpark 3, 1030 Vienna, Austria (hereinafter referred to as "RI"), is a stock corporation under Austrian law with a share capital of EUR 471,735,875.00, divided into 154,667,500 nopar-value bearer shares. The company was established on July 9, RI shares are quoted on the Vienna Stock Exchange in the Prime Market segment of the Official Market. C. Before the present merger, RZB intends, pursuant to sec. 1 para. 2 sub-para. 2 and sec. 17 of the (Austrian) "Bundesgesetz über die Spaltung von Kapitalgesellschaften, SpaltG" (Federal Act on De-Mergers of Corporations) to transfer its "Corporate Customers" business unit, including the participations connected with it, to Cembra by way of a de-merger for the purpose of absorption based on the provisions of a De-Merger and Acquisition Agreement entered into by RZB and Cembra via universal succession as of 12 midnight, December 31, 2009, taking advantage of the fiscal benefits offered by Art. VI of the Reorganization Tax Act (hereinafter referred to as the "preceding demerger"). The De-Merger and Acquisition Agreement has been attached to the present Agreement as Appendix./1. D. Immediately after the coming into effect of this preceding de-merger, Cembra shall be merged with RI by way of a merger through absorption based on the provisions of the present Merger Agreement pursuant to sections 219 et seq. of the (Austrian) "Aktiengesetz, AktG" (Stock Corporation Act) and, consequently, the company assets of Cembra (including the assets transferred to it by RZB in the course of the preceding demerger) shall also pass to RI as of 12 midnight, December 31, 2009 via universal succession, taking advantage of the fiscal benefits offered by Art. I of the Reorganization Tax Act. This merger constitutes the subject matter of the present Merger Agreement. E. The preceding de-merger is a preparatory step to the said merger of Cembra and RI. That the merger enter into effect by being entered into the commercial register immediately after the de-merger shall have been entered into the commercial register is therefore the basis of transaction underlying the De-merger and Acquisition Agreement. On account of the close linkage between the present merger and the preceding demerger, and on account of the fact that the respective shareholders' meetings of the companies involved must have passed the resolutions approving both measures with the required majority, (i) the De-merger and Acquisition Agreement moreover is in particular subject to the condition that the shareholders meetings of both RI and Cembra shall have passed the resolutions approving the present merger with the required majority and (ii) the present Merger Agreement is in particular subject to the condition that the shareholders meetings of both RZB and Cembra shall have passed the resolutions

3 3 approving the preceding de-merger with the required majority. If, for whatever reason, the situation arises that the de-merger becomes effective but not the subsequent merger, Item 6 of this Agreement shall apply. If this case arises, the contracting parties shall furthermore take all measures that may be necessary and expedient in order to reestablish the original conditions that prevailed before the de-merger. Since the preceding de-merger and the present merger are both scheduled to become effective as of 12 midnight, December 31, 2009 and entirely or partially concern the same assets, demerger and merger are linked by a reorganization plan and the present Merger Agreement is based on the Reorganization Plan drawn up pursuant to sec. 39 of the Reorganization Tax Act, a copy of which Plan has been attached to the present Agreement as Appendix./2. F. The market value of the assets of Cembra (including the assets transferred on account of the preceding de-merger and without taking into account the participation in RI owned by Cembra) and the market value of the assets of RI is positive both on the effective date of the merger and on the day of the entry into the present Merger Agreement. In view of the amount of the fixed capital of RI, which is higher, by comparison, than the share capital of Cembra, the requirements of maintenance of capital and protection of creditors required by judicature may be said to have been complied with to a sufficient degree. The present merger will not have a capital-reducing effect. G. For the purpose of bringing about a merger between Cembra and RI, by which the share capital shall be increased and advantage taken of the fiscal benefits offered by Art. I of the Reorganization Tax Act, the contracting parties herewith enter into the following Merger Agreement. 1. Subject matter of the Agreement Subject to the following provisions, Cembra shall be absorbed by RI by way of a merger through absorption pursuant to sections 219 et seq. of the Stock Corporation Act and subject to the application of Art. I of the Reorganization Tax Act. 2. Subject matter of the Agreement 2.1 Assigning and acquiring company (sec. 220 para. 2 sub-para. 1 of the Stock Corporation Act) The assigning company shall be Cembra, which has its principal place of business in Vienna. The acquiring company shall be RI, which has its principal place of business in Vienna. 2.2 Assignment Agreement (sec. 220 para. 2 sub-para. 2 of the Stock Corporation Act) Cembra and RI agree that the entire assets of Cembra shall be assigned to RI by way of universal succession, waiving the liquidation of Cembra. It is pointed out expressly that the assets owned by Cembra at the time of the coming into effect of the merger pursuant to this Merger Agreement and based on the sequence of the reorganization steps as set out in the Reorganization Plan attached hereto as Appendix./2 also include both the assets and the liabilities transferred to Cembra as a result of the preceding de-merger from RZB pursuant to the De-merger and Acquisition Agreement attached hereto as Appendix./1.

4 4 2.3 Exchange ratio, granting of shares (sec. 220 para. 2 sub-para. 3 of the Stock Corporation Act) The exchange rate between Cembra and RI fixed by the contracting parties is 1:30, In terms of figures, this means that, based on this exchange ratio, the value of shares of Cembra equals the value of shares of RI. a) The 112,671,601 RI shares held by Cembra shall be distributed pursuant to sec. 224 para. 3 of the Stock Corporation Act by way of passing-through of shares (Anteilsdurchschleusung) for the purpose of offering partial compensation to RI Bet as the sole shareholder of Cembra, and transferred to RI Bet ex lege; to this extent, RI Bet shall receive no new shares. b) Taking into account the fixed exchange rate and the shares distributed to RI Bet pursuant to lit. a) above, RI shall grant RI Bet, as the sole shareholder of Cembra, a further bearer shares of RI (hereinafter referred to as the Merger Shares", see below under 2.3.3), in exchange for the transfer of assets pursuant to this Merger Agreement; from an economic point of view, therefore, these Merger Shares constitute the compensation for the assets of Cembra transferred by the merger with and into RI (excluding the RI shares held by Cembra, but including the assets transferred as a result of the preceding de-merger). After entry of the merger into the commercial register, the Merger Shares shall be transferred to the securities account of RI Bet at the request of the trustee appointed pursuant to Item 4. The granting of the Merger Shares shall be effected free of charge for RI Bet The above exchange ratio is based on the valuation of the RI and Cembra enterprises carried out as of July 8, 2010 (valuation date), which took into account all facts and circumstances known on the date of the entry into the present Agreement, including, but not limited to, the de-merger for the purpose of absorption by Cembra of the "Corporate Customers" business unit of RZB and those participations of RZB that are linked to the operative "Corporate Customers" business, to be effected retroactively as of 12 midnight, December 31, 2009, In order to carry out the merger, RI shall increase its share capital from EUR ,00 by EUR ,20 to EUR ,20 by issuing no-par-value bearer shares (see sub-para. b)). The capital increase shall be understood to be the consideration for the compensation paid in return for the company assets of Cembra assigned to RI as a result of the merger (excluding the participation in RI transferred to RI Bet pursuant to Item sub-para. a), but including the assets transferred as a result of the preceding de-merger). The Merger Shares created as a result of the capital increase shall be issued at a price corresponding to the proportional amount of the share capital represented by them (sec. 8 para. 3 sentence 3 of the Stock Corporation Act), i.e., EUR 3.05, without any premium. Pursuant to sec. 223 of the Stock Corporation Act, the remaining shareholders of RI shall have no subscription rights with regard to the new Merger Shares issued in the course of the capital increase of RI. 2.4 Effective date of commencement of profit sharing (sec. 220 para. 2 sub-para. 4 of the Stock Corporation Act) The Merger Shares to be granted to RI Bet shall entitle the holder to participation in the profits as from the start of the business year during which the said shares were issued and handed over to the trustee appointed in accordance with Item 4.

5 5 2.5 Effective date of the merger and retroactive effect (sec. 220 para. 2 sub-para. 5 of the Stock Corporation Act) The merger shall be based on the Closing Balance Sheet of the assigning company, Cembra, drawn up as of December 31, 2009, including the Notes and the auditor s report according to sec. 220 para. 3 of the Stock Corporation Act, which has been attached to this Agreement as Appendix./3; for reasons of clarity and comprehensibility, the effects of the preceding de-merger on the accounts of Cembra are shown separately (Appendix./4). Thus, 12 midnight, December 31, 2009, is the effective date for the merger pursuant to sec. 220 para. 2 sub-para. 5 of the Stock Corporation Act and sec. 2 para. 5 of the Reorganization Tax Act Irrespective of the effect under civil law of the merger at the time of the entry of the merger into the commercial register for the acquiring company, i.e. RI, 12 midnight, December 31, 2009 shall be regarded as the effective merger date. As from 12 midnight, December 31, 2009, all actions affecting the assets transferred in connection with the merger shall be deemed to have been taken for the account of RI in the internal relationship and in particular for purposes of accounting. As from January 1, 2010 (start of the day), all benefits and charges conferred by the transferred assets shall affect RI exclusively. 2.6 Passing of the operative business RI acknowledges and approves the agreements entered into by and between RI and Cembra in connection with the preceding de-merger, according to which Cembra - for the purpose of ensuring business continuity - for the period between the coming into force of the preceding de-merger and the coming into force of the present merger of Cembra and RI, has granted the "Prokuristen" (officers with special powers of attorney granted to them by statutory provisions) of RZB a power of attorney to act and enter into transactions on its behalf in connection with the operative banking business concerning the de-merged business unit "Corporate Customers" business. 2.7 Provisions concerning the "Raiffeisen Participation Capital 2008/2009" The issue of the "Raiffeisen Participation Capital 2008/2009" is functionally linked to the "Corporate Customers" business unit and will therefore be transferred to Cembra in the course of the preceding de-merger and subsequently, in the course of the present merger, to RI. This means that, as a result of the universal succession, all provisions referring to RZB that have been included in the terms and conditions of this issue shall be understood to refer to RI as the legal successor of RZB and Cembra as of the date of the entry of the merger into the commercial register. In the same way, RI as the universal successor of Cembra shall replace RZB as a party to the agreement entered into with the Republic of Austria on the occasion of the subscription of the "Raiffeisen Participation Capital 2008/2009". Due to its specific configuration, the Raiffeisen Participation Capital 2008/2009" has "nominal character". As far as the "Raiffeisen Participation Capital 2008/2009" is concerned, no compensatory or other measures to prevent a dilution of equity pursuant to sec. 23 para. 5 of the (Austrian) "Bankwesengesetz, BWG" (Banking Act) will be taken in connection with the present merger, nor will any equivalent rights be granted anew in connection with the merger or compensation paid for any alteration of rights or for the rights themselves within the meaning of sec. 226 para. 3 of the Stock Corporation Act.

6 6 2.8 Special rights (sec. 220 para. 2 sub-para. 6 of the Stock Corporation Act) No special rights or other rights within the meaning of sec. 220 para. 2 sub-para. 6 of the Stock Corporation Act shall be granted either to shareholders or to holders of debentures or to any other persons within the meaning of sec. 220 para. 2 sub-para. 6 of the Stock Corporation Act. No measures within the meaning of sec. 220 para. 2 sub-para. 6 in conjunction with sec. 226 para. 3 of the Stock Corporation Act shall be taken. 2.9 Special benefits (sec. 220 para. 2 sub-para. 7 of the Stock Corporation Act) Neither the members of the management board or the members of the supervisory board of the companies participating in the merger nor an auditor of the annual accounts, bank auditor, foundation auditor, auditor of residual assets, transformation auditor, de-merger auditor, merger auditor or any other auditor shall be granted any special benefits pursuant to sec. 220 para. 2 sub-para. 7 of the Stock Corporation Act. The reasonable fee to be paid to the merger auditor for auditing the merger is not a special benefit within the meaning of sec. 220 para. 2 sub-para. 7 of the Stock Corporation Act. The same applies with regard to the auditor of the annual accounts, the foundation auditor and any other auditor(s). 3. Stock exchange listing of the Merger Shares RI will request that the Merger Shares be admitted for trade on the Vienna Stock Exchange in the Prime Market segment of the Official Market immediately after the coming into effect of the merger. 4. Trustee Pursuant to the provisions of sec. 225a para. 2 of the Stock Corporation Act, Cembra shall appoint RZB as the trustee for receiving the Merger Shares to be granted. RI shall hand over the Merger Shares to the trustee upon the entry of the merger into the commercial register and instruct it to pass them on to the sole shareholder of Cembra. 5. Passing of the ownership of the assets of the assigning company Ownership of the assets of Cembra shall pass to RI via universal succession pursuant to sec. 225a para. 3 sub-para. 1 of the Stock Corporation Act at the time of the entry of the merger into the commercial register. The dividend paid to Cembra by RI for the business year of 2009 has been left out of account in the determination of the exchange ratio and shall therefore accrue to Cembra s shareholder, i.e., to RI Bet, before the merger. Moreover, Cembra undertakes vis-à-vis RI to refrain from distributing any profits within the period between the coming into force of the preceding de-merger and the coming into force of the present merger.

7 7 6. Action for avoidance or declaration of nullity/ delay in the entry of the merger into the commercial register As far as the application for entry of the merger into the commercial register is concerned, the management board of the acquiring company shall be authorized at the shareholders meeting in which the resolution concerning the present merger is to be passed, to wait, in agreement with the management board of the assigning company, until it has been ascertained that there are no actions for avoidance or declaration of nullity pending in relation to the merger or the resolutions passed in connection with the merger, or that, after due examination of the legal circumstances, such actions are unlikely to prevent the entry of the merger into the commercial register (and, consequently, the coming into effect of the merger as well as the coming into effect of all those resolutions passed in connection with the same). Should the entry into the commercial register of the merger and of the resolutions passed in connection with the same be delayed beyond December 31, 2010 due to pending actions for avoidance or declaration of nullity, the management boards of the companies shall be entitled, subject to the approval of the relevant supervisory board - and without any further resolution on the part of a shareholders meeting being required to rescind the Merger Agreement not yet entered into the commercial register by mutual consent retroactively as of December 31, 2009 and to withdraw the application for entry into the commercial register by mutual consent. 7. Charges and expenses 7.1 The assets of the assigning company, Cembra, do not include real estate within the meaning of sec. 2 of the (Austrian) "Grunderwerbsteuergesetz, GrEStG" (Land Transfer Tax Act). Furthermore, the merger shall not lead to the transfer of 100% participations in real estate-owning companies or to unification of shares of such companies. This means that no land transfer tax and fees for entry into the land register will have to be paid. 7.2 Since on the present date, Cembra has been in existence for more than two years and, consequently, will also have been in existence for more than two years on the date of applying for the entry of the merger into the commercial register, the merger is exempt from company tax pursuant to sec. 6 para. 5 of the Reorganization Tax Act. The same applies pursuant to sec. 6 para. 1 sub-para. 3 of the (Austrian) "Kapitalverkehrssteuergesetz, KVG" (Capital Transfer Tax Act). 7.3 Any transfer taxes and fees for entry into the commercial register accruing in connection with the present Agreement, as well as all expenses incurred in connection with the entry into this Agreement or the transaction of the merger shall be borne by RI. In case no merger should take place, each company shall pay one half of the costs of preparing the merger. 8. Conditions The coming into force of the present Agreement shall be subject to the conditions precedent of its being approved by the shareholders meetings of Cembra and RI; as well as of

8 8 the shareholders meetings of both RZB and Cembra having passed the resolutions approving the de-merger intended as Step 1 by the Reorganization Plan (Appendix./1) with the required majority. For this reason, the merger is only to be completed by being entered into the commercial register if and when the de-merger intended as Step 1 has been carried out by having been entered into the commercial register (see preamble Item E). Furthermore, the entry of the merger into the commercial register is subject to the authorization being granted by the Financial Market Authority pursuant to sec. 21 para. 1 sub-para. 7 of the Banking Act. 9. Final provisions 9.1 Modifications of and amendments to this Agreement, including the present Item 9, shall require a notarial act in order to be valid and effective. 9.2 Should any of the provisions of this Agreement be or become entirely or partially invalid, the validity of the remaining provisions shall not be affected. The contracting parties undertake to replace the invalid provision by a valid regulation fulfilling the purpose of the invalid provision to the greatest possible extent (Severability Clause). 9.3 The present merger shall be governed by the provisions of Article I of the Reorganization Tax Act; the resulting tax benefits shall be taken advantage of in connection with the present merger. The provisions of the Reorganization Tax Act shall be applied as rules of interpretation, so that in case of any ambiguities or of the discovery of circumstances not previously considered, this Agreement shall be supplemented by the rules and provisions that create the prerequisites required according to the Reorganization Tax Act and lead to the legal consequences of a merger according to Article I of the Reorganization Tax Act. 9.4 This Agreement shall be governed exclusively by Austrian substantive law. The application of the (Austrian) "Internationales Privatrechtsgesetz, IPRG" (Act on Private International Law) and other conflict-of-law provisions (including, but not limited to, the Rome I Regulation) shall be excluded to the extent that this is legally possible. 9.5 For any disputes arising under or in connection with this Agreement, the parties agree on the exclusive jurisdiction of the Commercial Court of Vienna. 9.6 For the time after Cembra shall have ceased to exist as a result of the merger, Cembra herewith authorizes RI to make all declarations and sign all documents and petitions drawn up in accordance with the relevant formal requirements that may be considered appropriate, at RI s sole discretion, for the realization of the aims of the merger, including, but not limited to, the transfer of the company assets of Cembra. This authorization shall be granted for an indefinite period and shall not expire upon entry of the merger into the commercial register. 10. Executed copies 10.1 Any number of executed copies may be provided to the parties to this Agreement, as well as to their present and future shareholders, management board members and liquidators, if any, upon unilateral request.

9 The above has been set out in the present Notarial Act, the contents of which have been read out in their entirety to the parties appearing, have been approved by them as corresponding to their intentions and signed by them before me, in my capacity of notary public. Vienna,... Cembra Beteiligungs AG... Raiffeisen International Bank-Holding AG 4 Annexes: De-merger and Acquisition Agreement (Appendix./1) Reorganization Plan according to sec. 39 of the Reorganization Tax Act (Appendix./2) Closing Balance Sheet of the assigning company (Appendix./3) Assets and liability statement showing the effects of the preceding de-merger on the accounts of Cembra (Appendix./4)