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Frequently asked questions (FAQs)
published in November 2013
regarding the up to EUR 125,000,000 9.25 % bearer bonds 2010/2015 issued
byd 3W Power S.A (previously named 3W Power Holding S.A.) (the "Debtor").
ISIN: DE000A1A29T7 / WKN: A1A29T
Notes:
• With regard to potential questions of bondholders regarding the creditors'
meeting on 25 November 2013 we would like to, by means of this
document, make the following answers accessible to all bondholders.
• This is based on good corporate governance and without an acknowledgement
of an actual legal obligation to do so.
1. Why are the bondholders asked to resolve on the appointment
of a common representative for the bondholders?
Against the background of the current development in business performance
and the stressed liquidity situation the Debtor is reviewing its current capital
structure. As part of this assessment and to create a solid basis for the future
development of the Debtor's business, the Debtor invites the bondholders to a
meeting. With this the legal requirements for the restructuring of the bond
shall be fulfilled to at least defer the upcoming coupon payment and to restructure
the bond. Main agenda item in this context is the appointment of a
common representative for the bond.
2. Who is Mr Klaus Nieding?
Mr Klaus Nieding is a specialist lawyer for Banking and Capital Markets Law
and Managing Partner of the law firm Nieding + Barth, Frankfurt am Main,
Germany. His law firm is one of the market-leading firms in Germany with
respect to the representation of investors' interests. Moreover, he is managing
director of Deutsche Schutzvereinigung für Wertpapierbesitz e.V., Landesverband
Hessen / Rheinland-Pfalz / Saarland, president of Deutsche Anlegerschutzbundes
e.V. (DASB) as well as vice president of Deutsche Schutzvereinigung
für Wertpapierbesitz e.V. (DSW); all being German associations founded
with the aim to protect investors' interest. Mr Nieding is one of the most
renowned investor protection lawyers having successfully represented the
interests of damaged investors and holding for more than 10 years the position
as common representative of bondholders in prominent cases such as
Solar Millennium AG with a volume of EUR 150m, Gold-Zack AG and Gontard&
Metall Bank AG with a volume of EUR 160m and WGF Westfälische
Grundbesitz und Finanzverwaltung AG with a volume of EUR 50m.
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Further information regarding Mr Klaus Nieding can be found on the website
of Nieding + Barth Rechtsanwalts AG
Nieding + Barth Rechtsanwaltsaktiengesellschaft - Über Uns
3. What would be the consequences of a valid and effective positive
resolution on resolution subject 1 with a sufficient quorum
and the required majority?
In case a resolution on resolution subject 1 is adopted, Mr Klaus Nieding
would be vested with the minimum statutory rights as per § 7 para. 1 of the
German Bond Act ("SchVG"):
• the obligation to report to the bondholders in compliance with § 7 para.
2 sentence 4 SchVG;
• the right to call a bondholders' meeting as set forth in § 9 para. 1 sentence
1 SchVG;
• the right to lead the voting procedure pursuant to § 15 para. 1 SchVG;
and
• information rights towards the Debtor in accordance with § 7 para. 5
SchVG.
Moreover, in the event of insolvency of the Debtor, the statute vests in the
common representative the right to exclusively assert the claims of the bondholders
(§ 19 para. 3 SchVG). As common representative Mr Klaus Nieding
would be entitled to a reasonable remuneration from the Debtor as well as the
reimbursement of his expenses (§ 7 para. 6 SchVG).
4. What would be the consequences of a valid and effective positive
resolution on resolution subject 2 with a sufficient quorum
and the required majority?
In case a resolution on resolution subject 2 is adopted, Mr Klaus Nieding
would be entitled to, to the extent the interest which has accrued for the interest
period from 1 December 2012 until 30 November 2013 and is payable
on 1 December 2013 is concerned, exercise the rights of the bondholders and
to negotiate, find and conclude an agreement, that amends the terms of the
bond to that effect (including a reduction, deferral or waiver of this interest
payment or a combination of these measures), with the Debtor and the guarantor
of the bond – in each case in the interest of the bondholders.
5. What would be the consequences of a valid and effective positive
resolution on resolution subject 3 with a sufficient quorum
and the required majority?
The common representative shall exercise his powers with the due diligence
of a prudent and diligent business manager and is, to this extent, liable towards
the bondholders (§ 7 para. 3 sentence 1 SchVG). In case a resolution
on resolution subject 3 is adopted, (i) the liability of the common representative
would be limited to the case of gross negligence and deliberate intention;
and (ii) his liability in case of gross negligence would be limited to ten times
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the annual remuneration which he receives from the Debtor for his role as
common representative.
6. What would be the consequences if the majority of present
bondholders disapproves one or more of the resolution subjects?
If the required quorum is reached in the bondholders' meeting (see in more
detail on that below) and the respective resolution subject is disapproved by
the majority of the present bondholders (see in more detail on that as well
below), the proposed resolution on such resolution subject would be rejected.
(a) Quorum
A resolution of the bondholders' meeting can only be adopted, if the required
quorum is met. A quorum of the bondholders' meeting is met, if the bondholders
who are present in the bondholders' meeting represent at least half of
the aggregate nominal amount of the outstanding bond. If the quorum is met,
the following applies:
(b) Majority requirements
A valid resolution on the resolution subjects 1 and 3 as set out under Section
A. of the invitation to the bondholders' meeting dated November 2013 requires
a simple majority of the voting rights present in the meeting; a valid
resolution on the resolution subject 2 as set out under Section A. of the invitation
to a bondholders' meeting dated November 2013 requires a majority of
at least 75 per cent. of the voting rights present in the meeting (qualified majority)
(cf. for each case § 11(b) of the terms and conditions of the bond in
conjunction with § 5 para. 4 sentences 1 and 2 SchVG).
7. How can a bondholder participate in the bondholders' meeting
and exercise its voting rights?
The bondholders have to register for the bondholders' meeting with the service
provider, Haubrok Corporate Events GmbH. The registration has to be
delivered at the latest by 22 November 2013 (receipt by 24:00 hours CET).
Otherwise the bondholders are neither entitled to attend the bondholders'
meeting nor to exercise their voting rights (§ 11(c)(i) of the terms and conditions
of the bond in conjunction with § 10 para. 2 SchVG). In this case, authorised
representatives are also not entitled to do so. In addition, a proof of
ownership of partial bonds of the bond as of the time of the vote is required
(see in more detail under 9.). The related documents can be either delivered
until the latest by 22 November 2013 (receipt by 24:00 hours CET) via the
same medium and to the same address as the registration to the service provider,
Haubrok Corporate Events GmbH, or submitted at the latest at the admission
to the bondholders' meeting. For further details with regard to registration
and further required proof for participation in the meeting, we refer to
Section D. of the invitation to the bondholders' meeting.
8. May a bondholder be represented in the bondholders' meeting
by a proxy?
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Yes, each bondholder may be represented in the bondholders' meeting by a
proxy (§ 14 SchVG).
The bondholder may choose such proxy freely. The proxy could e.g. be the
depository bank or another discretionary third party (such as an acquaintance).
The voting rights may be exercised by the proxy. The power of attorney and
any instructions given to the proxy by the principal must be in text form as
defined in § 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
Debtor (
Home | AEG Power Solutions under the Section "3W POWER/AEGPS INVESTOR
RELATIONS").
These documents can be either delivered until the latest by 22 November
2013 (receipt by 24:00 hours CET) via the same medium and to the same
address as the registration to the service provider, Haubrok Corporate Events
GmbH, or submitted at the latest at the admission to the bondholders' meeting.
To the extent this has not been done already together with registration, the
proxy has to – at the latest at admission to the bondholders' meeting – submit
the power of attorney and, in each case in appropriate manner, prove his
identity and the status as bondholder of his principal. For further details with
regard to the registration and further proof of the status as bondholder we
refer to Section D. and E. of the invitation to the bondholders' Meeting.
Creditors who do not attend the bondholders' meeting in person and who do
not wish to grant other discretionary third parties with power of attorney to do
so, may grant power of attorney with voting instructions to the Debtor's
proxy. A form that may be used for granting power of attorney and instructions
to the Debtor's proxy is also available for download on the website of
the Debtor (
Home | AEG Power Solutions under the Section "3W POWER/AEGPS INVESTOR
RELATIONS"). This power of attorney should be delivered at the latest by 22
November 2013 (receipt by 24:00 hours CET) via the same medium and to
the same address as the registration to the service provider, Haubrok Corporate
Events GmbH. The Debtor's proxy is obliged to vote only as instructed.
For further details with regard to the representation by the Debtor's proxy in
the bondholders' meeting we refer to Section E.3 of the invitation to the
bondholders' meeting.
9. What are the requirements for the special confirmation with
blocking notice as per Section D.4 of the invitation to the bondholders'
meeting?
Section D.4 of the invitation to the bondholders' meeting deals in full detail
and conclusively with the requirements for the special confirmation with
blocking notice. A certification by the depository bank is required containing
the full name and the full address of the creditor and the aggregate nominal
amount of the partial bearer bonds credited to the securities account of such
creditor maintained by such depository bank on the day of issuance of such
certification.
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Besides eventual further formal requirements asked for by the depository
bank, a blocking notice by the depository bank is also required, i.e. a notice
stating that the partial bearer bonds of the bond held by the creditor in question
are being held blocked by the depository bank at least from the day of
issuance of the special confirmation until the end of the bondholders' meeting
on 25 November 2013. The issuance of such blocking notice requires or, better,
has the result, that the respective partial bearer bonds of the bond are
credited to the securities account and, for the entire period between the issuance
of the blocking notice and the end of the bondholders' meeting, remain
credited to this securities account.
A form for the special confirmation with blocking notice, which can be used by
the respective depository bank, is available for download on the website of
the Debtor (
Home | AEG Power Solutions under Section "3W POWER/AEGPS INVESTOR
RELATIONS").
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