DRAFT MERGER AGREEMENT

Transcription

1 English translation of the original German version for convenience only DRAFT MERGER AGREEMENT between PIAG Immobilien AG FN x Absberggasse 47 A-1100 Wien and UBM Realitätenentwicklung Aktiengesellschaft FN x Floridsdorfer Hauptstraße 1 A-1210 Wien as follows: DORDA BRUGGER JORDIS Rechtsanwälte GmbH

2 - 2/8 TABLE OF CONTENTS Preamble Transferring and Acquiring Company ( 220 (2)(1) AktG) Transfer Agreement ( 220 (2)(2) AktG) Exchange Ratio of the Shares and their Allocation ( 220 (2)(3) AktG) Effective Date for the Entitlement to Dividends ( 220 (2)(4) AktG) Merger Record Date and Retro-Active Effect ( 220 (2)(5) AktG) Special Rights and Provisions ( 220 (2)(6) AktG) Special Benefits ( 220 (2)(7) AktG) Taxes Conditions Precedent Miscellaneous... 8 T:\P\Porr\Titan\Entwürfe\Verschmelzung\Verschmelzungsvertrag\Verschmelzungsvertrag_ENGLISH_final docx

3 - 3/8 Preamble (A) (B) (C) (D) PIAG Immobilien AG, FN x, is a joint stock corporation established under Austrian law with its business address at Absberggasse 47, A-1100 Vienna, registration court Commercial Court Vienna ("PIAG" or the "transferring company"). The share capital of PIAG amounts to EUR 14,617,500 (fourteen million sixhundred-seventeen-thousand five-hundred euro), divided into 14,547,500 (fourteen million five hundred and forty seven thousand and five hundred) no-par value ordinary bearer shares, each with a calculated notional amount of EUR 1 (one euro) of the registered share capital (ISIN AT0000A1A5K1) ("PIAG Shares") and 70,000 (seventy thousand) no-par value bearer shares of Category B (with a dividend preference), each with a calculated notional amount of EUR 1 (one euro) of the registered share capital (ISIN AT0000A1A5L9) ("PIAG Shares Category B"). The PIAG Shares are admitted to trading on the Official Market of the Vienna Stock Exchange and trade in the Standard Market Auction segment. UBM Realitätenentwicklung Aktiengesellschaft, FN x, is a joint stock corporation established under Austrian law with its business address at Floridsdorfer Hauptstraße 1, A-1210 Vienna, registration court Commercial Court Vienna ("UBM" or the "acquiring company"). The share capital of UBM amounts to EUR 18,000,000 (eighteen million euro) and is divided into 6,000,000 (six million) no-par value ordinary bearer shares, each with a calculated notional amount of EUR 3 (three euro) of the registered share capital (ISIN AT ) ("UBM Shares"). The UBM Shares are admitted to trading on the Official Market of the Vienna Stock Exchange and trade in the Standard Market Auction segment. By virtue of the Spin-Off and Takeover Agreement dated October 29, 2014, entered into between PORR AG (FN f) as the transferring company and PIAG as the acquiring company, these entities agreed on the transfer of 2,479,836 (two million four-hundred-seventy-nine thousand eight-hundred thirty-six) UBM Shares, corresponding to percent of the total share capital of and total voting rights in UBM ("UBM Shareholding I"), as well as a part of the shareholding in STRAUSS & PARTNER Development GmbH (FN x) ("Strauss & Partner"), which corresponds to a fully paid up share capital of EUR 213,800 (twohundred-thirteen thousand eight-hundred euro) and thus percent of the total share capital ("S&P Shareholding"), by means of a spin-off in accordance with the Spin-off of Corporations Act ("SpaltG") ( 17 ivm 2 ff SpaltG) and applying Article VI of the Restructuring Tax Act ("UmgrStG") with effect as of June 30, 2014 to PIAG as the acquiring company ("Spin-Off"). In October 2014 PIAG acquired 1,500,008 (one million five-hundred-thousand eight) UBM Shares from CA Immo International Holding GmbH (as the legal successor of CA Immo International Beteiligungsverwaltungs GmbH), 23,276 (twenty-three thousand two-hundred-seventy-six) UBM Shares by exercising a call option and 616,012 (six-hundred-sixteen thousand twelve) UBM Shares, which were tendered to PIAG in the course of a public takeover offer in accordance with the Public Takeover Act in the offer period that expired on October 23, Together with 142,184 (one-hundred-forty-two thousand one-hundred-eighty-four) further UBM Shares, which were acquired by PIAG on the basis of sale and purchase agreements at the moment at which the Spin-Off took effect (entry of the T:\P\Porr\Titan\Entwürfe\Verschmelzung\Verschmelzungsvertrag\Verschmelzungsvertrag_ENGLISH_final docx

4 - 4/8 Spin-Off and the post-formation acquisitions pursuant to 45 AktG into the Companies Register), and 612,856 (six-hundred-twelve thousand eight-hundred-fiftysix) UBM-Shares to be acquired prior to the implementation of the Merger based on a put option granted to Amber Privatstiftung and Bocca Privatstiftung, PIAG will therefore have acquired a total of additional 2,894,336 (three million eighthundred-ninety-four thousand three-hundred-thirty-six) UBM Shares ("UBM Shareholding II"). Together with those 2,479,836 (two million four-hundredseventy-nine thousand eight-hundred-thirty-six) UBM Shares of the UBM Shareholding I, PIAG altogether will hold, prior to the Merger, a total of 5,374,172 (five million three-hundred-seventy-four thousand one-hundred-seventy-two) UBM Shares corresponding to percent of the total share capital of and total voting rights in UBM. (E) (F) Shares comprising the UBM Shareholding I are held on a designated share deposit account separately from the UBM Shareholding II shares in order to allow for a clear allocation of the UBM Shareholding I shares to PIAG shareholders with unlimited tax liability (tax resident) in Austria for the purposes of 5 (1)(4) UmGrStG. The joint merger report of the managing boards of PIAG and UBM sets out the commercial considerations for the Merger contemplated by this Merger Agreement. 1. Transferring and Acquiring Company ( 220 (2)(1) AktG) 1.1 PIAG Immobilien AG is the transferring company and has its registered seat in Vienna. 1.2 UBM Realitätenentwicklung Aktiengesellschaft is the acquiring company and has its registered seat in Vienna. 2. Transfer Agreement ( 220 (2)(2) AktG) 2.1 PIAG and UBM agree that PIAG as transferring company shall transfer to UBM as acquiring company by way of a merger its entire assets will all rights and obligations by means of universal legal succession and without recourse to liquidation of PIAG and all 5,374,172 (five million three-hundred-seventy-four thousand onehundred-seventy-two) UBM Shares held by PIAG will be transferred as consideration to the PIAG shareholders ( 224 (3) Stock Corporation Act ("AktG")) and, taking advantage of the tax benefits available under Article I UmgrStG ("Merger"). 2.2 In terms of civil law, the assets of PIAG pass to UBM via universal legal succession upon the registration of the Merger in the Companies Register pursuant to 225a (3)(1) AktG. 2.3 The assets of PIAG to be transferred have a positive market value both as of the Merger Record Date and the date of this Merger Agreement (also without considering the UBM Shares held by PIAG as an asset). 2.4 The restricted capital of UBM as acquiring company totalling EUR 62,641, (sixty-two million six-hundred-forty-one thousand five-hundred-sixty-six euro and fifty-one eurocent) (comprising the share capital of UBM amounting to T:\P\Porr\Titan\Entwürfe\Verschmelzung\Verschmelzungsvertrag\Verschmelzungsvertrag_ENGLISH_final docx

5 - 5/8 EUR 18,000,000 (eighteen million euro) and restricted capital reserves amounting to EUR 44,641, (forty-four million six-hundred-forty-one thousand fivehundred-sixty-six euro and fifty-one eurocent) exceeds the restricted capital of PIAG totalling EUR 62,177, (sixty-two million one-hundred-seventy-seven thousand eight-hundred-sixty-two euro and forty-five eurocent) (comprising the share capital of PIAG amounting to EUR 14,617,500 (fourteen million six-hundredseventeen thousand five-hundred euro) and restricted capital reserves amounting to EUR 47,560,362,45 (forty-seven million five-hundred-sixty thousand threehundred-sixty-two euro and forty-five eurocent). Accordingly, there will be no release of the restricted capital as a result of the Merger. 3. Exchange Ratio of the Shares and their Allocation ( 220 (2)(3) AktG) 3.1 Shares issued by PIAG will be extinguished at the moment at which the Merger takes effect (entry into the Companies Register). 3.2 In order to facilitate the Merger, UBM will increase its share capital from EUR 18,000,000 (eighteen million euro) by EUR 30,000 (thirty thousand euro) to EUR 18,030,000 (eighteen million thirty thousand) through the issue of 10,000 (ten thousand) new no par-value bearer shares with dividend entitlement as of January 1, Such share capital increase of PIAG is effected by means of the transfer of the assets of PIAG as a capital contribution. UBM will issue the new UBM Shares at the calculated notional amount of the share capital of EUR 3 (three euro) per share without premium to the shareholders of PIAG. 3.3 PIAG holds 5,374,172 (five million three-hundred-seventy-four thousand onehundred-seventy-two) UBM Shares that will be transferred to UBM during the course of the Merger. Such UBM Shares are to be used by UBM, to the extent necessary, to compensate the PIAG shareholders in accordance with 224 (3) AktG. 3.4 UBM as acquiring company will grant to the PIAG shareholders as consideration for the transfer of the assets of PIAG at the moment at which the Merger takes effect (entry into the Companies Register) for every 10 (ten) PIAG Shares held (three point seven-zero-one-zero-nine-eight) UBM Shares. The PIAG shareholders will therefore receive as consideration all 5,374,172 (five million three-hundred-seventy-four thousand one-hundred-seventy-two) UBM Shares, which transfer to UBM in the course of the Merger, as well as all 10,000 UBM Shares newly issued to facilitate the Merger. 3.5 No UBM Shares will granted for the 70,000 (seventy thousand) treasury shares (PIAG Shares Category B) held by PIAG ( 224 (1)(1) AktG). 3.6 The above exchange ratio is based on the valuation of PIAG and UBM as of June 30, 2014 ("Valuation Date"). 3.7 Erste Group Bank AG, FN m, Graben 21, 1010 Vienna, ("Escrow Agent") has been appointed as escrow agent according to 225a (2) AktG. The Escrow Agent shall deliver the respective UBM Shares, which will be represented by a global share certificate deposited with Oesterreichische Kontrollbank Aktiengesellschaft ("OeKB"), upon the entry of the Merger into the Companies Register, via the clearing system of OeKB as the central security depositary and the relevant depositary banks in accordance with the terms of this Merger Agreement to the PIAG shareholders' securities accounts. T:\P\Porr\Titan\Entwürfe\Verschmelzung\Verschmelzungsvertrag\Verschmelzungsvertrag_ENGLISH_final docx

6 - 6/8 3.8 The UBM Shares comprising the UBM Shareholding I will also be held by the Escrow Agent separately from the UBM Shares of the UBM Shareholding II. UBM Shares of the UBM Shareholding I will be allocated by the Escrow Agent with regard to the tax regulation of 5 (1)(4) UmgrStG solely to those shareholders that are known to PIAG by name as being tax resident in Austria (with unlimited tax liability). 3.9 Due to the exchange ratio, holders of PIAG Shares will be entitled to quota-based rights in a PIAG Share. A quota-based right to the delivery of a PIAG Share arises if on the day of the Merger becoming effective (entry into the Companies Register) a stock exchange transaction in PIAG Shares is not yet settled ("Share Fractions"). Holders of Share Fractions are not entitled to any shareholder rights. The depositary banks will transfer the allocated UBM Shares attributable as consideration for the Share Fractions via the clearing system of OeKB to the Escrow Agent. The Escrow Agent will sell such UBM Shares on the stock exchange. The sale proceeds will be credited to the accounts of the respective PIAG shareholders in proportion to their Share Fractions UBM as acquiring company does not hold any treasury shares or shares in PIAG as transferring company. 4. Effective Date for the Entitlement to Dividends ( 220 (2)(4) AktG) 4.1 The UBM Shares to be allotted to the PIAG shareholders according to clause 3.1 of this Merger Agreement carry a full entitlement to dividends for the financial year of UBM beginning on January 1, Merger Record Date and Retro-Active Effect ( 220 (2)(5) AktG) 5.1 July 1, 2014 has been set as the record date of the Merger within the meaning of 220 (2)(5) AktG and 2 (5) UmgrStG ("Merger Record Date"). Upon expiry of this day all actions of PIAG as transferring company are deemed to have been effected on account of UBM as acquiring company. In addition, upon expiry of this day all benefits and obligations are on account of UBM. 5.2 The Merger will be based on the Closing Balance Sheet as of July 1, 2014, including notes and the audit opinion, attached to this Merger Agreement as Annex./1. The Pro-Forma Balance Sheet as of the Merger Record Date, which takes into account the effects of the Spin-Off and the acquisition of the additional UBM Shares and a further stake in Strauss & Partner is attached to this Merger Agreement as Annex./2. Furthermore, a merger balance sheet for tax purposes within the meaning of 2 (5) UmgrStG will be prepared with retro-active effect as of the Merger Record Date. 5.3 In terms of civil law, pursuant to 225a (3)(1) AktG, the transfer of the merger assets to UBM by means of universal legal succession becomes effective upon the entry of the Merger into the Companies Register. 6. Special Rights and Provisions ( 220 (2)(6) AktG) 6.1 No special rights or other rights within the meaning of ( 220 (2)(6) AktG) are granted to PIAG, PIAG shareholders, UBM, UBM shareholders or any other person. T:\P\Porr\Titan\Entwürfe\Verschmelzung\Verschmelzungsvertrag\Verschmelzungsvertrag_ENGLISH_final docx

7 - 7/8 6.2 PIAG has issued instruments hat in meaning of 226 (3) AktG, namely mezzanine capitak of EUR 100 (one-hundred) million and hybrid capital of EUR (twenty-five point thirty-three) million. Both instrument grant the holder an entitlement to interest (payable only in case of a profit), but no share in the profits or the liquidation proceeds and no preferential subscription rights. The terms have been agreed being aware of the contemplated Merger. Both the mezzanine capital as well as the hybrid capital will continue at UBM at unchanged (equivalent) terms with UBM replacing PIAG as borrower of the mezzanine capital and as recipient of the hybrid capital upon the Merger taking effect. A change of the terms of such instruments or a compensation for such instruments (termination) in the meaning of 226 (3) AktG does not take place. The rights of each relevant creditor will therefore not be affected by the Merger. 7. Special Benefits ( 220 (2)(7) AktG) 7.1 The members of the managing or supervisory boards of the entities involved in the Merger as well as the statutory auditors, incorporation auditors or merger auditors are not granted any benefits within the meaning of 220 (2)(7) AktG. 7.2 The following individuals exercise functions within the corporate bodies of both PIAG and UBM: a) Karl-Heinz Strauss and Christian B. Maier are members of the managing board of PIAG and members (Chairman and member) of the supervisory board of UBM. b) Iris Ortner is Deputy Chairman of the supervisory board of both PIAG and UBM. 8. Taxes 8.1 The provisions of Article I UmgrStG apply to the Merger. The tax advantages contained in these provisions therefore also apply to the Merger. The application of the UmgrStG shall also serve as an interpretation guideline to this Merger Agreement, such that in case of any ambiguities or circumstances not expressly addressed herein such provisions and gaps are to be interpreted as to provide for the application of the UmgrStG. 8.2 Pursuant to 4 (1)(a) UmgrStG, tax loss carry forwards not yet utilised by PIAG as transferring company pass to UBM as acquiring company. Pursuant to 4 (1)(b) UmgrStG, tax loss carry forwards not yet utilised by UBM as acquiring company continue to be deductible. The capacity as parent of a tax group of UBM as acquiring company within the meaning of 9 KStG remains unaffected by the Merger. 8.3 The Merger does not result in a transfer of 100 percent of shares in property owning companies or a consolidation of all shares in property owning companies. To the knowledge of the entities involved in the Merger, the Merger does not give rise to property transfer tax. 8.4 The Merger does not trigger the capital transfer tax pursuant to 6 (1)(3) Capital Transfer Tax Act as the entire assets of PIAG are transferred in the course of the Merger. T:\P\Porr\Titan\Entwürfe\Verschmelzung\Verschmelzungsvertrag\Verschmelzungsvertrag_ENGLISH_final docx

8 - 8/8 9. Conditions Precedent 9.1 This Merger Agreement is subject to the following conditions precedent: a) the approval of the general shareholders' meeting of PIAG; and b) the approval of the general shareholders' meeting of UBM. 9.2 Due to PIAG's shareholding in UBM and, consequently, an existing controlling influence, the Merger is not subject to a separate notification under the EU Merger Regulation. On September 30, 2014 the European Commission granted an unconditional consent to the acquisition of joint control over UBM by the Ortner Group and the Strauss Group in accordance with the EU Merger Regulation. 9.3 Should the Merger not be registered in the Companies Register by April 30, 2014, each of PIAG und UBM shall be entitled to terminate and withdraw from this Merger Agreement. This right lapses upon the entry of the Merger into the Companies Register. 10. Miscellaneous 10.1 Should a provision of this Merger Agreement be or become illegal, invalid or unenforceable, the effectiveness and enforceability of all other provisions of this Merger Agreement shall not be affected. The entities involved in the Merger shall replace such ineffective or unenforceable provision with a new provision that matches as closely as possible the purpose and economic effect of the original provision. This applies correspondingly to any gaps in this Merger Agreement There are no oral side agreements to this Merger Agreement. Any changes or supplements to this Merger Agreement or this clause must be in writing to the extent that the applicable law does not require a notarial deed or other legal form The parties to this Merger Agreement may request any number of copies of this Merger Agreement at their own cost The attached annexes form an integral part of this Merger Agreement. Annex Index Annex./1 Annex./2 Closing Balance Sheet Pro-Forma Balance Sheet Vienna, November 28, 2014 PIAG Immobilien AG FN x UBM Realitätenentwicklung Aktiengesellschaft FN x T:\P\Porr\Titan\Entwürfe\Verschmelzung\Verschmelzungsvertrag\Verschmelzungsvertrag_ENGLISH_final docx

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