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Capital Markets Newsletter September 2011 CONTENTS Recent transactions Recent legal developments Recent publications Our team/Key contacts Quotes and recommendations Recent and upcoming semi- nars 3 5 8 9 10 11

Capital Markets Newsletter September 2011 Capital Markets – Newsletter September 2011 Capital Markets Germany This newsletter gives you a brief overview of recent transac-tions advised

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Page 1: Capital Markets Newsletter September 2011 Capital Markets – Newsletter September 2011 Capital Markets Germany This newsletter gives you a brief overview of recent transac-tions advised

Capital Markets Newsletter September 2011

CONTENTS

Recent transactions

Recent legal developments

Recent publications

Our team/Key contacts

Quotes and recommendations

Recent and upcoming semi-nars

3

5

8

9

10

11

Page 2: Capital Markets Newsletter September 2011 Capital Markets – Newsletter September 2011 Capital Markets Germany This newsletter gives you a brief overview of recent transac-tions advised

2 Capital Markets – Newsletter September 2011

Capital Markets Germany

This newsletter gives you a brief overview of recent transac-tions advised on and other activities of our capital markets team as well as on recent legal developments. It is written as a general guide only and should not be relied upon as a sub-stitute for specific legal advice. If you would like further information on any aspect mentioned herein, please contact us at any time. If you do not know us yet: put us to the test! We are looking forward to hearing from you. Your Capital Markets Germany Team

This newsletter is published by Hogan Lovells International LLP, practice group capital markets Germany. Practice Head: Prof. Dr. Michael Schlitt Head of Capital Markets Dr. Sven Brandt Head of Debt Capital Markets Dr. Karsten Müller-Eising Head of Equity Capital Markets Hogan Lovells International LLP Untermainanlage 1 60329 Frankfurt am Main

JUVE Awards 2011: Shortlisted for

Bank and Finance Law Firm of the

Year

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3 Capital Markets – Newsletter September 2011

Recent transactions

Hogan Lovells advised the German financial mar-ket stabilisation fund (Sonderfonds Fi-nanzmarktstabilisierung, SoFFin) on the nearly

complete reduction of its silent participations in Commerzbank AG. In the wake of the financial crisis in 2008/2009, the German state through SoFFin acquired a stake of 25% plus one share in the share capital of Commerzbank AG and two si-lent participations of in total € 16.4 billion. Our ad-vice centered on the structuring of the substantial reduction of the silent participations in one capital markets transaction. Members of our team com-menced to act on this matter before joining Hogan Lovells and moving the matter to our firm. The ex-ecution of both steps of the capital markets trans-action for which the parties decided was adviced on after joining Hogan Lovells. This included ad-vice on the issuance of contingent mandatory exchangeable notes (CoMEN) by Commerzbank

and the subsequent capital increase by way of rights issue of Commerzbank, with SoFFin con-

tributing in both steps parts of its silent participa-tions in return for shares (debt-equity-swap). The structure of the transaction was very innovative and developed by Commerzbank and Deutsche Bank. With issue proceeds of in total €11 billion, the transaction is the largest equity capital mar-kets transaction ever in the history of the Federal Republic of Germany. Shortly before, members of our team had advised SoFFin on a liability man-agement transaction of Commerzbank AG with a volume of €625 million in which trust preferred se-curities were bought back from an intermediary in connection with a placement of shares and a capi-tal increase against contribution of the repur-chased securities.

Hogan Lovells also advised M.M.Warburg & CO KGaA on the recent capital increase by way of rights issue of Conergy AG. The shares for which

subscription rights were not exercised were pur-chased by lenders of the issuer against contribu-tion of debt (debt-equity-swap). Hogan Lovells has advised M.M.Warburg & CO KGaA on the latest capital increase of Conergy AG. Taking the re-ceivables contributed by the lenders into consid-eration, the total volume of the transaction amounted to approximately EUR 183.3 million. The new shares were offered solely to the existing shareholders of the company without prior publi-cation of a prospectus. A prospectus was pub-lished for purposes of the subsequent admission of the new shares to trading at the regulated mar-ket (Prime Standard) of the Frankfurt stock ex-change. Conergy mainly develops, produces and sells photovoltaic products and system solutions, including solar cells, modules, module frames and mounting systems. The capital increase followed a capital reduction and served refinancing purposes.

Another equity offering prospectus-free was the recent capital increase of DIC Asset AG on which

Hogan Lovells advised the syndicate banks Commerzbank and Joh. Berenberg Gossler & Co KG, in particular on US law aspects. The

rights offering was extended to existing share-holders only, including shareholders in the US un-der Rule 144A, and the new shares were admitted to trading at the Frankfurt stock exchange. DIC Asset AG is s real estate company with a dedicat-ed investment focus on investing in commercial real estate in Germany. The issue proceeds amounted to €52.2 million.

Hogan Lovells further advised Katjes Interna-tional GmbH & Co KG on its recent bond issu-

ance. The bond matures in 2016 with a coupon of 7.125 per cent per annnum. It was listed in one of the recently established segments for bonds of mid-sized issues, the mittelstandsmarkt at the Dusseldorf stock exchange. The bond was placed with institutional investors and, via the subscrip-tion tool offered by the Dusseldorf stock ex-change, with retail investors. The issue proceeds amounted to EUR 30 million.

Hogan Lovells advised Senator Entertainment AG on its issuance of a bond with warrants. Mem-

bers of the capital markets team had already ad-vised the company on its capital increase in 2005. The bonds are secured by movie rights and were offered in a rights issue to existing shareholders only. Bonds not subscribed for in the rights issue were offered to selected investors. Both the bonds

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4 Capital Markets – Newsletter September 2011

Recent transactions

and the warrants have been listed at the Open Market at the Frankfurt stock exchange.

Hogan Lovells also advised a listed German real estate company on its intended convertible bond

issuance. The convertible bonds were offered to existing shareholders in a rights issue as well as to selected institutional investors in a private placement.

Hogan Lovells represented Barclays Capital, Credit Agricole, DZ Bank AG, Bayerische Landes-bank, Commerzbank, Landesbank Baden-Württemberg, Nordea Bank, RBC and SEB as managers in connection with an offering by Landwirtschaftliche Rentenbank of €1.25bn 2.875% notes due 2021 under its €60bn medium

term note programme with listing on the Luxem-bourg stock exchange.

Hogan Lovells also advised Citigroup Global Mar-kets Limited, Daiwa Capital Markets Europe Lim-ited, HSBC Bank plc and J.P.Morgan Securities Ltd. as joint lead underwriters in connection with a SEC-registered offering by Landwirtschaft-liche Rentenbank of US$1.5bn 1.875% notes

due 2018 under its US shelf registration statement with listing on the SIX swiss exchange.

Hogan Lovells advised FMS Wertmanagement

on its recent EUR 1.5bn 3% benchmark bond is-sue. The issue was fully subscribed by Morgan Stanley, Deutsche Bank, The Royal Bank of Scot-land, Unicredit Bank, Barclays Bank, Bayerische Landesbank, BNP Paribas, Citigroup, Com-merzbank, Goldman Sachs and UBS.

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Recent legal developments

Federal High Court Ruling on Secondary Offerings

The usual structure for a secondary public offering in Germany may be substantially affected by a new court ruling: The German Federal High Court (BGH) held that KfW has to pay damages to Deutsche Telekom with regard to Deutsche Telekom's payments to inves-tors on the grounds of prospectus liability. The back-ground for this ruling is the following: The selling shareholder(s) in a secondary public offering usually have the company write the prospectus and assume the responsibility for its contents (together with the banks) whilst the selling shareholders themselves usually do not assume responsibility for the prospec-tus. The German Federal High Court now held that as-suming responsibility for a prospectus used in connec-tion with a secondary public offering qualifies as a for-bidden repayment of contributions if the selling share-holders do not grant the company an indemnity for any claims against the company made on the grounds of prospectus liability. It does not matter whether the risk of prospectus liability materialises, just taking over the risk already suffices to be considered as forbidden re-payment of contributions.

Given that, in the case of Deutsche Telekom, solely existing shares were placed, there is a discussion on-going whether an IPO in which both, new shares and existing shares, are offered, is affected by the ruling. This begs the question whether the prospectus liability must be shared on a pro rata basis, which is not an-swered by the German Federal High Court. From our perspective, such sharing of liability is not necessary if the primary tranche prevails and the shares still need to be admitted to trading since the company then needs to publish a prospectus anyhow.

Further, the German Federal High Court did not explic-itly deal with the question whether its ruling will have implications for the indemnity granted by the issuer to the underwriters. From our point of view, the better reasons are still speaking in favour of the indemnity being valid, even assuming a forbidden repayment of contributions.

The new ruling will in particular have implications for exit IPOs of private equity investors. It lies in the na-ture of a private equity fund that it will be liquidated once all shares were sold and the proceeds received. An ongoing indemnity obligation is not compatible with such concept. Taking the ruling seriously, a solution might be that the selling shareholder bears the costs of an insurance of the issuer against claims for prospec-tus liability in a reasonable amount. Another solution could be using a foreign vehicle as an issuer, which is not subject to the concept of a forbidden repayment of contributions.

New market segments for corporate bonds of SMEs In the end of 2010, many German stock ex-

changes created new market segments targeting cor-porate bonds. These new segments offer small and medium-sized enterprises ("SME") an alternative to traditional bank loans. This way, inter alia the stock exchanges in Stuttgart, Frankfurt and Düsseldorf ex-tended their concept of equity financing for corporate issuers to raising new capital through bonds. To this end, the new segments are complemented by sub-scription tools allowing for the direct subscription of bonds by (retail) investors.

Bonds listed in the new segments can be issued either by already listed companies or by market newcomers. Although each of the stock exchanges is free to de-termine their own (private law) rulebook for listing re-quirements of a corporate bond, most of the rulebooks (Allgemeine Geschäftsbedingungen) set out more or less the same provisions, e.g. they do not prescribe formal requirements for the size of the company, its business area or a minimum volume of the bond. Re-cent market experience, however, shows that a bond volume with a minimum amount of €25 million can be placed since it is of interest for both, (semi-) institu-tional and retail investors.

With a view to retail investors, each of the stock ex-change rulebooks requires for the admission in one of the new segments firstly a PD-compliant prospectus approved by BaFin and published by the company. Secondly companies are obligated to introduce them-selves to the stock exchange via a brief company pro-file with relevant information on the corporate bond, a corporate calendar and audited annual financial state-ments. The latter can be prepared in accordance with national GAAP, an advantage in comparison to the regulated market of the same stock exchanges, espe-cially for SMEs. Furthermore, most of the stock ex-change rulebooks prescribe, if the company is not yet listed on the regulated market, that the company's cre-ditworthiness has to be additionally assessed by a rat-ing agency and that the balance sheet ratios are being published.

For the duration of the listing, most of the stock ex-changes' regulations require the companies to publish their current annual and half-yearly financial state-ments as well as annual follow-up rating and current balance sheet ratios. As an additional obligation issu-ers are, for investor protection reasons, required to disclose any (price-)sensitive information which is rele-vant to their bond whether the shares of the company are also listed or not.

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6 Capital Markets Newsletter - September 2011

Recent legal developments

"CoCoCo"-Bonds CoCo-bonds are innovative trans-

action structures which are currently widely discussed. They are mandatory convertible bonds converting into shares upon occurrence of certain trigger events. Ac-cording to Basel III, they qualify as additional tier 1 capital for banks and, according to Solvency II, as tier 1 basic own funds for insurance companies. Such con-tingent convertible bonds can also be issued by other industries. They are governed by the regime provided for convertible bonds in the German stock corporation act, convertible into shares from contingent capital, so that the rules on contributions in kind do not apply. Such "CoCoCo"-bonds (contingent corporate converti-ble bonds) can be issued under the current regime. However, the upcoming reform of the German stock corporation act will clarify and confirm certain features. Additionally, the reform will likely give up the limitation of the possible amount of contingent capital available for such bonds, currently set at 50 per cent of the ex-isting share capital.

"CoCoCo"-bonds could prove useful in case of a pend-ing acquisition, still subject to antitrust clearance. It would offer the right "equity story" given that the new shares will only be issued if the acquisition closes. Al-so any future acquisition could be financed by issuing a "CoCoCo"-bond, which would make it a SPAC-like instrument. However, as for any convertible bond, the company needs a shareholders' authorization to issue a convertible bond and a conditional capital created by shareholders' resolution. The usual wording of such authorisations usually covers also mandatory converti-ble bonds. From our perspective, it would not need to mention explicitly the contingency of mandatory con-version since a contingency limits shareholders' inter-ests less than a traditional mandatory conversion fea-ture. Volume-wise conversion must be limited to up to 10% of the existing share capital to make use of the facilited exclusion of pre-emptive rights. If the volume is higher, the bond must generally be offered to the shareholders first.

Basel III & CRD IV – New proposals for banking regulation Since banks have been at the centre of the

financial crisis the global economy is facing since 2008, the Basel Committee of Banking Supervision developed a comprehensive set of reform measures ("Basel III") which aim to improve the banking sector's ability to absorb shocks arising from financial and eco-nomic stress. The reform`s target is twofold: imple-menting a modern regulation at the level of each bank, or now so called "microprudential", regulation, raising the resilience of individual banks in times of crisis and a "macroprudential" system that can be built across the banking sector. For more than 8,000 banks opera-tive in Europe, Basel III has to be implemented into first European and, in case of a directive, afterwards

national law. For this purpose, the EU commission has brought forward several proposals for the implementa-tion of Basel III in August 2011. These proposals are broadly known under the working title Capital Re-quirement Directive IV, "CRD IV".

As an overarching goal of the various proposals, the EU commission tries to strengthen the resilience of the EU banking sector while ensuring that banks continue to finance economic activity and growth. Among oth-ers, the commission's proposals have three specific goals:

Capital requirements: The proposal will require banks to hold more and better capital to resist fu-ture shocks on their own. With a greater focus on common equity the minimum total common equity requirement will be raised to 4.5% of risk weighted assets. Furthermore, banks will have to build up 'capital buffers' as a further cushion against loss-es. On the one hand a capital buffer will comprise common equity of 2.5% of risk-weighted assets, bringing the total common equity standard to 7%. On the other hand banks have to build up a so called counter-cyclical buffer within a range of 0-2.5% comprising common equity, when authorities judge that their credit growth in their jurisdiction is resulting in an unacceptable build-up of systemat-ic risk. Constraint on a bank's discretionary distri-butions will be imposed when its common equity falls below the combined buffer range resulting from these two capital buffers.

Corporate governance: Taking effect as a gold plating on top of Basel III, the EU commission wants to set up a new governance framework giv-ing supervisors new powers to monitor banks more closely and take action through possible sanctions when they spot risks, for example to re-duce credit when it looks like it is growing into a bubble.

Level playing field: By putting together all the ma-jor portion of the new legislation applicable on this matter into an ordinance which is directly applica-ble within the member states and does not allow any deviation, the EU commission proposes to have one "single rule book" for banking regulation. The aim is to improve both transparency and en-forcement.

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7 Capital Markets Newsletter - September 2011

Recent legal developments

The EU proposals are technically split into two parts: a directive governing the access to deposit-taking activities and a regulation governing how activities of credit institutions and investment firms have to be carried out. According to the EU com-mission announcements, the new rules should be in place by the end of 2012. The directive has to be implemented into national law. Many rules will be phased in gradually to give banks and invest-ment firms time to adjust. The rules are therefore expected to be fully effective from 2019.

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Recent publications

February 2011 Article on the listing of corporate

bonds of SMEs (Mittelstandsanleihen) and the new stock exchange segments in the legal journal "Corporate Finance Law" (Schlitt/Kasten)

February 2011 Article on the German Bank Re-

structuring Act (Banken-Restrukturierungsgesetz) in the legal journal "BetriebsBerater" (Müller-Eising/Brandi/Sinhart/Lorenz)

February 2011 Article on corporate bonds of

SMEs (Mittelstandsanleihen) in the journal ”FiM (Finanzierung im Mittelstand)” (Schlitt/Kasten)

February 2011 Article on SEDA financings in the

liber amicorum for Uwe H. Schneider (Schlitt/Becker)

March 2011 Chapter "Country Q&A Germany" on

equity and debt capital markets in the new edition of the Capital Markets handbook issues by Practi-cal Law Company (Müller-Eising/Brandt)

March 2011 Chapters on reporting obligations

and the duties of the management board in the new edition of Semler/Volhard, Handbook on Shareholders' Meetings (Schlitt/Becker)

March 2011 Interview on dual track IPOs in the electronic journal "Platow Recht" (Schlitt/Habetha)

April 2011 Article on increased transparency on

the market for OTC derivatives in the electronic journal "Platow Recht" (Brandt/Rogge)

May 2011 Article on corporate bonds of SMEs

(Mittelstandsanleihen) in the legal journal “Der Be-trieb spezial” (Schlitt/Kasten)

May 2011 Article on hybrid bonds in the legal journal “Corporate Finance Law” (Schlitt/Brandi/Gemmel/Ernst)

June 2011 Article on current developments in

high-yield bond issuances in the legal journal ”Die Aktiengesellschaft“ (Schlitt/Hekmat/Kasten)

July 2011 Article on new legislation on naked short sales in the legal journal "Wertpapiermittei-lungen" (Findeisen/Tönnigsen)

August 2011 Interview on Deutsche Telekom III

ruling of the German Federal High Court in the electronic journal "Platow Recht" (Schlitt/Schäfer)

September 2011 Article on reporting require-

ments for the creation of authorized capital in the legal journal "Gesellschafts- und Wirtschaftsrecht" (Th. Stoll)

September 2011 Interview on "CoCoCo"-Bonds in the newspaper "Börsen-Zeitung" (Schlitt)

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9 Capital Markets – Newsletter September 2011

Our team

German expertise

Hogan Lovells' German capital markets team led by Prof. Dr. Michael Schlitt comprises fellow partners Dr. Sven Brandt, Head of Debt Capital Markets Germany, Dr. Karsten Müller-Eising, Head of Equity Capital Markets Germany, Dr. Susanne Schäfer and Rainer Süßmann, all situated in Frankfurt. They are supported in Frankfurt by Dr. Christian Ries and Dr. Julian Fischer, both counsels, senior associates Dr. Thorsten Becker, Dr. Cornelia Ernst, Anna Rogge and Thomas Stoll as well as associates Dr. Roman Kasten and Franziska Neumann and legal support lawyers Daniela Schmitt, Jan Winzen, Philipp Weihrauch and Florian Kolling. Additionally, Hogan Lovells has capital markets capacities in each of the German offices: partner Dr. Lutz Anger-er and senior associate Dr. Maximilian Findeisen in Munich, Dr. Dirk Besse and Dr. Philipp Semmer in Berlin, Dr. Jörg Paura in Hamburg and Dr. Michael Leistikow in Düsseldorf.

U.S. expertise

Hogan Lovells has very experienced U.S. attorneys in the various European offices to deal with the U.S. aspects of European capital markets transactions, some of which are now based in Europe for more than 20 years. This includes i.a. German-speaking U.S. partner Sina Hekmat, who shares his time be-tween New York and Frankfurt, London-based part-ners John Basnage and Peter Kohl, supported by U.S. counsel Julie Lasso and U.S. associate Chris-topher Osborne (both London) and the German-speaking associates Laura Kilian (Berlin) and Julian Seiguer and Christian Ulrich from the U.S. The inte-grated team of German and U.S. capital markets specialists is in an excellent position to advise on all U.S. aspects of German capital markets transac-tions, including transactions with a Rule 144A ele-ment.

Key contacts

Prof. Dr. Michael Schlitt

T +49 69 96236 430 [email protected]

Dr. Sven Brandt T +49 69 96236 200 [email protected]

Dr. Karsten Müller-Eising

T +49 69 96236 340 [email protected]

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Quotes and recommendations

THE GERMAN CAPITAL MARKETS PRACTICE IS

JUVE Awards 2011: Shortlisted for Bank and Finance Law Firm of the Year

„recommended firm for equity capital markets (Cham-bers Europe 2011)

‘extremely committed’... with a ‘very high level of ser-vice’(Legal 500, 2011)

"recommended firm for equity capital markets law that has improved its positioning step by step. [...] partners from leading competitors, too, confirmed they are doing an "excellent job"". (JUVE Handbuch, 2010/2011)

PROF. DR. MICHAEL SCHLITT IS

mentioned as leading lawyer (capital markets: equity) in the 1st tier out of 4 in (Chambers Europe 2011)

"held in high esteem" by clients, "one of the most rec-ognised capital markets lawyers in Germany" and his academic background is "the best" (Legal 500, 2011)

recognized for his ability to quickly analyse the legal implications of a transaction, and for being "one of the most knowledgeable lawyers in the market for hot top-ics" (Chambers Global 2011)

“one of the most knowledgeable, senior and committed lawyers in the German ECM market, according to cli-ents and they praise him as “one of the best at as-sessing the legal feasibility of structures and their im-plementation” (Chambers Europe 2011)

recommended as individual in capital markets (equity) by Chambers Global and Chambers Europe 2011

DR.SVEN BRANDT

“has a strong reputation and has led the German [DCM] team in many of its big-ticket instructions” (Chambers Europe 2011)

is a respected figure in the market (Chambers Global 2011)

"maintains an overview also in complex matters, he is solution-driven and pleasant to work with", (competitor in JUVE Handbuch 2010/2011)

DR. KARSTEN MÜLLER-EISING

is mentioned as often recommended lawyer (IPOs and equity raisings as well as corporate law) (JUVE Hand-buch, 2010/2011)

is recommended as individual for equity capital markets by PLC which lawyer 2011

RAINER SÜßMANN

recognized as recommended lawyer for equity capital markets (Legal 500, 2011)

DR. SUSANNE SCHÄFER, LL.M.

has extensive experience of equity transactions, espe-cially equity-linked bonds (Chambers Global 2011)

is recommended as individual in capital markets (equi-ty) by Chambers Global and Chambers Europe 2011.

SINA HEKMAT

is listed as individual in the Equity Capital Markets sec-tion under "Experts based abroad" (Chambers Global 2011)

HOGAN LOVELLS IN GERMANY

was shortlisted for Equity Deal of the Year with the IPO by way of rights issue of Drägerwerk AG & Co. KGaA (€105 million) by IFLR Europe Awards 2011

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11 Capital Markets – Newsletter September 2011

Recent and upcoming seminars

RECENT SEMINARS

• Seminar on Basel III/CRD IV, Frankfurt, August 2011

• Seminar on capital markets financing for SMEs, Berlin, 1 September 2011

The slides are available upon request.

UPCOMING

• Seminar on the company limited by shares (Kom-manditgesellschaft auf Aktien (KGaA)), Frankfurt, 29 September 2011

• Presentations on equity raisings and restructuring measures at the Forum Institut seminar on stock corpo-rations, Munich, 25/25 October 2011

• Presentations on the legal aspects of capital markets products at Handelsblatt seminar Corporate Finance, Frankfurt, 28 October 2011

• Securities Offerings Series: A series of presentations on equity, equity-linked, debt and structured finance trans-actions, including, inter alia, dual tracks, spin-offs, cor-porate bonds of SMEs (Mittelstandsanleihen), coco bonds and other current topics.

Programme

17 October 2011: initial public offerings

28 November 2011: rights issues

12 December 2011: 10% capital increases

23 January 2012: Secondary offerings (secondary pub-lic offerings, accelerated bookbuilt offerings/block trades)

27 February 2012: convertible bonds, bonds with war-rants, exchangeable bonds

26 March 2012: corporate bonds, hybrid bonds, high-yield bonds, programmes

16 April 2012: structured finance

7 May 2012: U.S. securities law aspects

18 June 2012: public takeovers

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