| RHI AG with its registered seat in Vienna and its business address Wienerbergstraße 9, 1100 Vienna, registered in the commercial register of the Commercial Court of Vienna under the number FN 103123 b (“RHI”), as the transferring company, intends to demerge by way of demerger for absorption in accordance with § 1 para 2 number 2 in conjunction with § 17 Spaltungsgesetz (Austrian Demerger Act) (“SpaltG“) its entire business operations including the participations listed under section 4.10.1 of the demerger and acquisition agreement in accordance with the provisions of the demerger and acquisition agreement by means universal succession applying the tax advantages of Art VI Umgründungssteuergesetz (Austrian Reorganization Tax Act) (“UmgrStG“) as of the effective date 31 December 2016, 24:00 hrs, to its subsidiary RHI Feuerfest GmbH with its seat in Vienna and its business address Wienerbergstraße 9, 1100 Vienna, registered in the commercial register of the Commercial Court of Vienna under the number FN 442121d (“RHI GmbH”), as the absorbing company (the “Demerger“). The contractual relationships and assets listed in section 4.10.2. of the demerger and acquisition agreement shall not be transferred in the course of the Demerger. The Demerger shall be effected without the issuance of shares, the shareholders of RHI shall remain invested in RHI as they were before the Demerger (verhältniswahrend). The Demerger shall be effected into an absorbing company in a different legal form than the transferring company (rechtsformübergreifend).
After a review of the demerger and acquisition agreement by the management board of RHI and the managing director of RHI GmbH, the joint demerger auditor and the supervisory boards of RHI and RHI GmbH the demerger and acquisition agreement was submitted by RHI and RHI GmbH to the commercial register of the Commercial Court Vienna of in accordance with § 7 para. 1 SpaltG. Provision of documents in accordance with § 7 para. 2 SpaltG and § 17 (5) SpaltG in conjunction with § 96 para. 2 GmbH in conjunction with § 221a para 2 AktG (Austrian Stock Corporation Act) (a) demerger and acquisition agreement; (b) audited financial statements and management reports of RHI for the last three financial years (2014, 2015, 2016) including the corporate governance reports (2014,2015,2016) insofar as they had to be prepared pursuant to statutory provisions; (c) financial statements of RHI GmbH for the last two financial years (2015, 2016) – RHI GmbH was established in the year 2015; (d) the audited closing balance sheet of RHI at 31 December 2016; (e) the joint demerger report of the management board of RHI and the managing director of RHI GmbH; (f) audit report of the court-appointed demerger auditor PKF Österreicher-Staribacher Wirtschaftsprüfungs GmbH & Co KG, FN 320092 z; and (g) the joint demerger report of the supervisory boards of RHI and RHI GmbH. |
| It is intended to merge RHI as the transferring company, into RHI-MAG N.V. with its seat in Arnhem and its business address Wienerbergstraße 9, 1100 Vienna, registered in the Netherlands in the commercial register of the Netherlands Chamber of Commerce under register number 68991665 (“RHI-MAG”), as the absorbing company, by means of a cross border merger by absorption (“Merger”). The Merger shall be implemented as of 31 December 2016, 24:00 hrs, as the effective date of the Merger on the basis of the joint merger terms dated 23 June 2017. The Merger shall be effected applying the tax advantages conferred by Art I UmgrStG, by transferring the entire assets of RHI, including all assets and liabilities as well as rights and duties in accordance with the provisions of the EU Merger Act (“EU-VerschG”), §§ 219 to 233 Austrian Stock Corporation Act (“AktG”) in conjunction with § 3 para 2 EU-VerschG and the Dutch Civil Code (“DCC“). The merger is based on the audited closing balance sheet of RHI at 31 December 2016, 24:00 hrs, which was issued with an unqualified auditor’s opinion.
The joint merger terms prepared by the management board of RHI and the board of RHI-MAG dated 23 June 2017 were submitted to the commercial register of the Commercial Court of Vienna in accordance with § 3 para 2 EU-VerschG in conjunction with § 221a para 1 AktG after the audit by the merger auditor and the supervisory board of RHI. It is necessary in terms of the structure of the transaction for the Demerger to be carried out before the Merger, but both are prepared and resolved upon in parallel by RHI shareholders and RHI-MAG shareholders. In light of the close technical and economic link that exists between the Demerger and the Merger, and given that resolutions regarding both measures will need to be adopted in each case with required majority by the shareholders’ meeting of RHI and RHI-MAG, (i) the demerger and acquisition agreement is in particular subject to the required majorities voting in favor of the Merger at the shareholders’ meetings of RHI and RHI-MAG, and (ii) the merger terms that are required to be prepared under Section 5 of the EU Merger Act are in particular subject to the required majorities voting in favor of the Demerger and Merger at the shareholders’ meeting of RHI and in favor of the Demerger at the general meeting of RHI GmbH and that this is recorded in the Companies Register. Provision of the documents in accordance with § 3 para 2 EU-VerschG in conjunction with § 221a para 2 AktG: (a) copy of the joint merger terms including enclosures; merger terms AT merger terms NL (b) the audited financial statements and management reports for the last three financial years (2014, 2015, 2016) including the corporate governance reports (2014, 2015, 2016) of RHI, insofar as they had to be prepared pursuant to statutory provisions (there are no financial statements of RHI-MAG since it was only formed in 2017); (c) the audited closing balance sheet of RHI as per 31 December 2016; closing balance sheet closing balance sheet adjusted closing balance sheet (english version) (d) the joint merger report of the management board of RHI and the board of RHI-MAG; (e) the audit report of PKF Österreicher-Staribacher Wirtschaftsprüfungs GmbH & Co KG, FN 320092 z, as the merger auditor appointed by the supervisory board of RHI (Download PDF) (english version without appendixes); (f) the audit report of ENDYMION Accountants B.V., CoC no. 67281605, as the merger auditor appointed by the board of RHI-MAG; (g) the report of the supervisory board of RHI (english version); an equivalent to the report of the supervisory board in accordance with § 3 para 2 EU-VerschG in conjunction with § 220c AktG is not required by the DCC as the board of RHI-MAG is organized as a one-tier board; therefore, no such report has to prepared. RHI-MAG N.V. Akte van Statutenwijziging (RHI-MAG N.V. Deed of Amendment of Articles of Association) |
| Declarations of submission
Notarial record of general meeting of RHI-MAG N.V. dated 16 August 2017 Publication Wiener Zeitung (22 August 2017) |