CORPORATE LAW / M&A
TABLE OF CONTENTS 01 FPS Legal Advice. Made for You. PAGE 03 02 Selected References... PAGE 04 03 Corporate Law / M&A at FPS... PAGE 06 04 Incorporation and Structuring of Corporations... PAGE 08 05 Corporate Governance... PAGE 09 06 Corporate Finance... PAGE 10 FPS CORPORATE LAW / M&A 07 Ongoing Corporate Law Advice... PAGE 11 08 Legal Advice for Governing Bodies and Management... PAGE 13 09 Corporate Compliance... PAGE 14 10 Mergers and Acquisitions (M&A)... PAGE 17 11 Capital Market Transactions... PAGE 18 12 Corporate Groups and Reorganizations... PAGE 21 13 Restructuring and Reorganization... PAGE 22 14 Litigation... PAGE 25 15 Corporate Succession... PAGE 26 16 Client Structure and Industries... PAGE 29 17 International Network... PAGE 30 FPS CORPORATE LAW / M&A 1
01 FPS LEGAL ADVICE. MADE FOR YOU. FPS is an independent, nationwide full-service law firm whose origins date back to the year 1846. As one of the leading business law firms in Germany, we operate with 140 attorneys and notaries based at our various offices in Berlin, Düsseldorf, Frankfurt am Main and Hamburg. We advise numerous reputable national and international clients in all areas of private and public business law. We consider ourselves problem solvers pursuing a pragmatic yet systematic approach. We offer our clients professional expertise as well as common sense to respond to questions of our clients in a diligent and thorough manner. Using our well-developed business sense, we always strive to find the most economical solution for our clients. One particular focus of our services is corporate law / M&A. Our clients benefit from our broad legal and business management experience, which we have gathered not only as attorneys, but also as members of management, as executive board or supervisory board members, as in-house legal counsel or corporate office staff, as well as through our social engagement. BERLIN DÜSSELDORF FRANKFURT HAMBURG 2 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 3
02 SELECTED REFERENCES JUVE 2014 / 2015 A law firm highly regarded for its corporate law and M&A practice. Traditionally, broadly diversified client base of mid-sized companies. Increasing representation of members of governing bodies, especially supervisory board members. KANZLEIEN IN DEUTSCHLAND 2014 FPS continues its successful growth, with higher revenues, more attorneys and a stronger corporate law practice. The firm s professionals clearly demonstrate that they see themselves not as members of a mega law firm, but rather as members of a mid-sized firm. This is evident not only from the surprisingly pleasant lawyer-client interaction all the way up to the top of the firm, but also from the excellent price-performance ratio for which the firm is known on the market. The considerable number of long-term clients speaks for itself. KANZLEIMONITOR 2013 / 2014 Survey of in-house attorneys published in BUJ Legal Department Report : FPS received multiple recommendations for various practice areas, including capital market law. AZUR 100 TOP EMPLOYERS 2014 Among the azur 100 ranking 2014, FPS is once again ranked as one of the top employers for young professionals in Germany. HANDELSBLATT / BEST LAWYERS INTERNATIONAL 2014 In the year 2014, the U.S. publication Best Lawyers, working exclusively for Handelsblatt, again named the attorneys who are recommended by other attorneys as the best attorneys in Germany. Eight of our attorneys are top-ranked for various practice areas, including corporate, corporate governance & compliance and M&A. FOCUS SPEZIAL, OCTOBER / NOVEMBER 2014 EDITION The top 50 business law firms in Germany: FPS is among Germany s top business law firms for various practice areas, including corporate law. 4 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 5
03 CORPORATE LAW / M&A AT FPS Corporate attorneys at FPS advise clients on all aspects of the development of a company, from corporate structuring and incorporation to operational management to sale or dissolution. As a full-service law firm, we work closely together with our colleagues in other FPS practice areas; beyond providing advice on issues of corporate law, where appropriate, we are also able to offer our clients legal services that are specifically tailored to the particular requirements of each client matter. In the area of corporate law / M&A, we offer special expertise on the following matters: Incorporation and Structuring of Corporations Corporate Governance Corporate Finance Ongoing Corporate Law Advice Legal Advice for Governing Bodies and Management Corporate Compliance Mergers and Acquisitions (M&A) Capital Market Transactions Corporate Groups and Reorganizations Restructuring and Reorganization Litigation Corporate Succession 6 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 7
04 INCORPORATION AND 05 CORPORATE GOVERNANCE STRUCTURING OF CORPORATIONS Corporate governance provides the framework for effective and sustainable business management and for purposeful cooperation between a company s governing bodies. Moving beyond the formula of comply or explain, we assist our clients with developing company-specific, appropriate corporate governance structures that will increase enter- Incorporation, in particular when new companies are incorporated in a national or interna- prise value in the long term. tional context, raises specific questions of strategic significance. The top priority for us is to develop and design a corporate structure that is appropriate from a business manage- Drawing on many years of experience, we advise our clients on issues arising, inter alia, ment perspective. In the interests of our clients, we design efficient structures in the in the following areas: following areas: Structure of corporate governance Advice on corporate structures, including the choice of corporate form (partnerships, stock operations) Cooperation between various corporate bodies (supply of information, reporting duties, consent Tax optimization and tax-oriented design of corporate structures requirements) Equity investments and debt investments, including convertible bonds, options, trust agreements, Organization and coordination of the activities of corporate bodies (bylaws, committees) silent partnerships Code compliance, in particular with the German Corporate Governance Code Private equity and venture capital investments, including consortium and pool agreements, employee participation models Statements of compliance, corporate governance reporting, transparency National and international joint ventures Code of conduct, mission statements, corporate commitments Articles and bylaws, partnership agreements, shareholder agreements Efficiency review, identification of potential for optimization Rules and procedures (executive board / management board, supervisory board / advisory board) Coordination of stakeholder groups (shareholders, employees, customers, suppliers, general public) Service agreements for managing directors and members of the executive board Corporate structuring, squeeze-outs 8 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 9
06 CORPORATE FINANCE 07 We apply our extensive experience to design complex financing structures for particular projects or transactions, as well as for investments or for our clients ongoing business operations. We customize the legal aspects of financing structures to meet the specific financing needs of each client, and develop new, innovative products to address, inter alia, the following issues: ONGOING CORPORATE LAW ADVICE We help our clients effectively and efficiently address issues of corporate law that arise on an ongoing basis, allowing our clients to devote their resources to operational demands. Our long-term clients rely on our services with regards to the following matters, to name just a few: Capitalization and preservation of capital Preparation and implementation of (equity) capitalization measures, in particular capital increases and capital reductions, conditional and approved capital Advice on the procurement of debt capital, including corporate bonds, loans, syndications Advice on hybrid financing structures, in particular mezzanine capital Legal and tax support for acquisition and investment financing structures Intra-group financing structures (cash pooling) Ongoing legal advice on general issues of corporate law (corporate housekeeping) Preparation and documentation of resolutions of governing bodies (corporate office for the executive board / management board and supervisory board / advisory board) Advice on the purchase and sale of treasury shares (safe harbor regulations) Advice on exercising shareholder rights, including rights to disclosure of information Preparation and convention of partners meetings and shareholders meetings, including drafting agenda guidelines, providing advice on demands for disclosure (Q&A), and back-office support Capital market transactions Corporate disputes, in particular shareholder actions, clearance proceedings, valuation proceedings, shareholder disputes 10 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 11
08 LEGAL ADVICE FOR GOVERNING BODIES AND MANAGEMENT We advise companies and their governing bodies on all issues related to the obligations of governing bodies, in particular in special situations or with respect to decisions of particular significance to the company or its governing bodies. Drawing on personal business experience in the industry, our attorneys have the business acumen necessary for successfully advising clients in this sensitive area. We advise and represent companies and members of governing bodies in numerous high-profile legal actions involving liability of governing bodies. In this area, we also offer special expertise for insurance- and employment-related issues. Traditionally, our attorneys have advised governing bodies and management in particular on the following issues: Structuring and negotiation of service agreements with members of the executive board and with managing directors, including parachute clauses, bonus agreements Appointment and dismissal of members of governing bodies Ongoing legal advice and continued training for corporate bodies and their members (board counseling and legal coaching) Advice on issues related to capital market communication Advice on all issues involving liability of governing bodies (executive board / management board, supervisory board / advisory board), including litigation and dispute resolution D&O insurance policies, other third-party liability insurance policies covering financial losses 12 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 13
09 CORPORATE COMPLIANCE If you think compliance is expensive, try being non-compliant. This short statement alone shows how important compliance is nowadays. Against this backdrop, we advise companies from different industries on structuring and implementing compliance organizations and compliance systems in accordance with corporate law. We review existing compliance programs for their efficacy and risks. We assist our clients with all aspects of uncovering and prosecuting compliance violations, including internal investigations, special audits and government investigations. We work closely together with the responsible departments of our clients and use our in-depth know-how in particular for the following services: Evaluation of existing measures to guarantee compliance with and performance of the legal duties of governing bodies Implementation of compliance management systems Introduction of whistleblower systems, privacy policies, reporting lines, etc. Training of staff in compliance-relevant areas Recommendations for course of action in critical situations Performance and support of internal investigations, including special audits and special representatives Prosecution of and defense with respect to compliance violations 14 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 15
10 MERGERS AND ACQUISITIONS (M&A) Our goal for the purchase or sale of companies is to develop the optimal structure for the specific transaction. We assist clients with finding and implementing the best possible overall solution for their specific projects. Depending on whether our clients are involved in the transaction as owners, investors, managers or creditors, we provide legal advice on the successful preparation and execution of divestments, the integration of newly acquired companies, or the reinvestment of sales proceeds. Our M&A practice advises both purchasers and sellers on the following: Evaluation and implementation of necessary reorganization and restructuring measures preceding contemplated transactions Planning, organization and tax structuring of contemplated transactions, including process design and financing Legal support for bidding processes Support for the preparation of company information packages (teasers) and information memoranda Support for the pre-contractual initiation and negotiation phase, in particular drafting non-disclosure agreements, letters of intent and term sheets in preparation for the transaction Legal / tax due diligence reviews for both vendors and buyers; drafting due diligence reports, including transaction recommendations Designing and drafting the transaction documentation prior to signing, including share purchase agreements (SPA) / asset purchase agreements (APA) and contract negotiations Support for the closing of transactions, in particular review of any closing conditions, merger approval, requirements under the Foreign Trade Act (AWG), etc. Post-closing measures (integration and implementation) Advice and representation in post-m&a litigation 16 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 17
11 CAPITAL MARKET TRANSACTIONS Capital market transactions require a high degree of specialization and extensive experience on the part of the advising attorneys. Increasing regulation, in particular at the European level, presents numerous pitfalls, which we reliably detect and avoid in the interests of our clients. Our lawyers have capital market experience in particular in the following matters: Initial public offerings, preemptive rights issues, stock exchange listings, segment changes, corporate bonds Preparation and implementation of capital increases, including due diligence reviews Preparation and review of prospectuses and memoranda, legal opinions Advice on legal obligations of listed companies, in particular publication obligations, voting right notifications in accordance with the German Securities Trading Act (WpHG) and German Stock Corporation Act (AktG), insider trading laws, directors dealings, annual document, etc. Preparation, implementation and defense of public takeovers on the regulated and non-regulated market, including business combination agreements Legal advice on capital market communication (ad hoc notices, corporate news) Negotiations with regulatory authorities (BaFin) Delisting, downgrading 18 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 19
12 CORPORATE GROUPS AND REORGANIZATIONS Corporate group structures are defined by the financial, corporate and tax relationships between the various group affiliates, with relevant legal issues arising for smaller groups as much as for larger groups. With this in mind, we review whether the creation, development or modification of corporate group structures makes sense and is appropriate. Companies are increasingly focusing on their core business, spinning off and selling business divisions. We also consider special corporate law and tax aspects when cor porate group structures are terminated or relaxed, for example by what are known as carve-outs. Multifaceted issues on which our attorneys advise on a regular basis include the following: Preparation and implementation of intra-group measures and reorganization measures, including hive-offs, mergers, carve-outs (national and international) Advice on commercial, tax and employment law consequences of restructuring measures Advice on the conclusion and effective maintenance of intercompany agreements, including control and profit transfer agreements and business management agreements Advice on intra-group financing, including cash pooling and related financing models Advice on issues of control and dependence within the group, including compensation for losses, de facto corporate groups Advice for governing bodies of controlling and controlled companies on management obligations specific to corporate groups 20 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 21
13 RESTRUCTURING AND REORGANIZATION Each crisis of a business is at the same time an opportunity to start over again. For despite obvious problems, businesses in crisis often still have enormous operational and financial potential. We assist managing directors / members of the executive board and shareholders with raising and utilizing this potential in order to avoid problems, or even insolvency, for the company. Even during preliminary insolvency proceedings, it is still possible to set the course for a successful continuation of business or to sell a business that is still operational. We advise shareholders, prospective buyers, large lenders, and insolvency administrators on developing and implementing financing and transaction structures in relation to the following: Implementation of early risk detection systems and other measures designed to prevent business crises Development and implementation of / support for restructuring plans, also taking into consideration tax and financing aspects Preparation and implementation of equity capital and debt capital measures, contribution of receivables in exchange for shares (e.g., debt-to-equity swaps), etc. Legal advice for governing bodies of companies in crises, in particular with respect to the duty to file an insolvency application and to report losses; support for insolvency proceedings, enforcement of claims Analysis and prevention of liability risks of governing bodies and defense of corresponding claims Advice for creditors on how to secure and enforce their claims; representation on creditors committees Advice for shareholders of companies in distress, in particular with respect to the corporate duty of loyalty and the duty to make additional capital contributions, as well as with respect to potential claims of the insolvency administrator Advice for investors on the acquisition of a business or business division in crisis or insolvency (distressed M&A) 22 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 23
14 LITIGATION Representing clients in business disputes is part of our daily practice. We advise our clients on measures that must be taken prior to litigation, including steps to avoid disputes, and we represent clients in court vigorously enforcing or defending claims. We prepare risk analyses and dispute resolution strategies for specific conflict situations. Our understanding of the litigation risks involved allows us to protect the interests of our clients by implementing practical, economical and common sense solutions. In addition to representing clients in traditional court proceedings, we also assist our clients in various alternative dispute resolution proceedings. We are regularly engaged in disputes involving issues of corporate law with respect to the following issues: In- and out-of-court representation in disputes involving shareholders, managing directors / members of the executive board or members of the supervisory board / advisory board, including mediation proceedings Representation in national and international arbitration proceedings Planning, preparation, implementation, and defense of corporate disputes, including valuation proceedings, shareholder actions, clearance proceedings, exclusion proceedings, and dismissal proceedings Advice on litigation strategy, for example on the collaborative defense of multiple defendants Support for and negotiation of dispute resolutions in and out of court, preparation of necessary resolutions of governing bodies, including the meeting of the shareholders and supervisory board, and support for and negotiation of settlement agreements and waivers of claims 24 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 25
15 CORPORATE SUCCESSION Missing or unclear succession provisions can burden affected family businesses, and in many cases even lead to their demise. Therefore, we advise our clients on how to make provisions for corporate succession early on to meet their individual needs. We assist clients with bringing the different interests of the business owner, the business owner s family and, in some cases, unrelated prospective buyers into alignment. Drawing on our many years of experience in this area, we support our clients in passing their companies on from one generation to the next, preserving assets, and securing qualified successors for the company s management. Our extensive expertise in issues of corporate succession includes advice on the following issues: Development and tax optimization of corporate succession provisions (e.g., in vivo transfers or testamentary provisions for the event of death, succession agreements, sale scenarios) Drafting of trusts and wills Implementation of risk prevention measures and mediation of any disputes arising in connection with corporate succession (e.g., succession agreements, succession clauses in articles and bylaws, establishment of advisory boards, wills, advance health care directives, durable powers of attorney) Continuation of companies through transformation into stock corporations / foundation models Execution of (last) wills Representation and mediation in connection with disputes between heirs 26 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 27
16 CLIENT STRUCTURE AND INDUSTRIES We advise mid-sized companies, listed stock operations, international enterprises and their subsidiaries, as well as shareholders and shareholder groups, individual shareholders, and members of governing bodies. Thanks to our experience and organizational structure, we are known as a reputable partner for companies that seek to build a lasting attorney-client relationship that offers flexibility and reasonable prices. We advise clients from many different industries, including the following: Automotive Chemical, Pharmaceutical, Medical Energy Financial Services Commerce Real Estate and Construction Industrial Services IT and Special Technologies Consumer and Luxury Goods Food Products Logistics Mechanical and Industrial Engineering Media and Advertising Raw Materials and Recycling Toys Textile Industry 28 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 29
17 INTERNATIONAL NETWORK For cases with international aspects, FPS is able to assign the most appropriate specialists from local jurisdictions. We maintain long-standing, tried and tested relationships with selected attorneys, accountants and tax advisors abroad who have expertise in their respective practice areas. In addition, FPS is a member of Geneva Group International (GGI), one of the leading international networks of independent law firms, tax consulting firms, accounting firms, and business consulting firms. All GGI members are committed to maintaining the same high quality and service standards (www.ggi.com). QUALITY INTERNATIONALITY TEAM OF EXPERTS 30 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 31
YOUR CONTACTS FPS BERLIN Kurfürstendamm 220, 10719 Berlin, T +49 30 88 59 0 FPS FRANKFURT AM MAIN Eschersheimer Landstr. 25, 60322 Frankfurt, T +49 69 95 95 70 Christoph von Arnim von-arnim@fps-law.de +49 30 88 59 27 520 Certified attorney for commercial and corporate law Johannes R. Jeep jeep@fps-law.de +49 30 88 59 27 736 Certified attorney for tax law Certified attorney for commercial and corporate law Dr. Sebastian von von-schweinitz@fps-law.de +49 30 88 59 27 793 Schweinitz, LL.M. (Georgetown), Notary Dr. Robin Fritz fritz@fps-law.de +49 69 95 95 73 12 8 Dr. Uwe Hartmann hartmann@fps-law.de +49 69 95 95 75 05 Tax advisor, Notary Dr. Holger Jakob jakob@fps-law.de +49 69 95 95 78 77 Tax advisor, Certified accountant Certified attorney for tax law Certified attorney for insolvency law Susanne Lang lang@fps-law.de +49 69 95 95 78 77 Solicitor (England & Wales) Hellmut Sieglerschmidt sieglerschmidt@fps-law.de +49 30 88 59 27 230 Notary Stefanie Kalke kalke@fps-law.de +49 30 88 59 27 704 Certified attorney for commercial and corporate law FPS DÜSSELDORF Königsallee 60 C (KÖ-Höfe), 40212 Düsseldorf, T +49 211 30 20 15 0 Adrian Müller a.mueller@fps-law.de +49 69 95 95 73 12 6 Certified attorney for commercial and corporate law, Notary Stephan Nikschick, LL.M. nikschick@fps-law.de +49 69 95 95 73 12 6 Alexa Clauss clauss@fps-law.de +49 69 95 95 75 05 Business lawyer (University of Bayreuth) Certified attorney for tax law Ingrid Burghardt-Richter burghardt-richter@fps-law.de +49 211 30 20 15 33 Certified attorney for commercial and corporate law Dr. Heiko A. Giermann, LL.M. (McGill) giermann@fps-law.de +49 211 30 20 15 36 Benjamin Ehrlich ehrlich@fps-law.de +49 69 95 95 75 05 Catrin Geil geil@fps-law.de +49 69 95 95 78 77 Su Chin Kim kim@fps-law.de +49 69 95 95 73 12 6 Martin Schröder m.schroeder@fps-law.de +49 69 95 95 78 77 Dr. Georg-Peter Kränzlin kraenzlin@fps-law.de +49 211 30 20 15 60 Dr. Reinhard Nacke nacke@fps-law.de +49 211 30 20 15 26 Certified attorney for tax law FPS HAMBURG Große Theaterstr. 42, 20354 Hamburg, T +49 40 37 89 01 0 Anja Krüger krueger@fps-law.de +49 211 30 20 15 36 Dr. Sebastian Weller weller@fps-law.de +49 211 30 20 15 60 Dr. Carsten Harms Certified attorney for insurance law harms@fps-law.de +49 40 37 89 01 0 32 FPS CORPORATE LAW / M&A FPS CORPORATE LAW / M&A 33
DISCLOSURE IN ACCORDANCE WITH THE REGULATIONS ON DISCLO- SURE OBLIGATIONS OF SERVICE PROVIDERS (DL-INFOV) FPS Fritze Wicke Seelig Partnerschaftsgesellschaft von Rechtsanwälten mbb FPS Fritze Wicke Seelig is a partnership with limited liability organized under the German Partnership Act (Partnerschaftsgesetz) and is recorded in the Partnership Register. Registered office and registration: Frankfurt in Main, Local Court of Frankfurt am Main, PR 1865 VAT identification number: DE219074277 A list of the partnership s partners can be viewed at www.fps-law.de under the link Partners in the Legal Notice. MULTIDISCIPLINARY SERVICES, PROFESSIONAL ASSOCIATIONS The partners have joined in a partnership for long-term professional purposes. Some partners also provide services as notaries, tax advisors and / or certified public accountants. Notarial services are provided exclusively at the offices in Berlin and Frankfurt am Main. Attorneys are prohibited from representing conflicting interests under applicable professional standards (Section 43a paragraph 4 of the Federal Lawyers Act (BRAO)). Therefore, new matters are always reviewed for conflicts of interest before they are accepted. MEDIATION If disputes arise between attorneys and their clients, a request for mediation may be filed with the Regional Bar Association office. The appropriate Regional Bar Association offices for attorneys of FPS are located in Berlin, Düsseldorf, Frankfurt am Main or Hamburg, depending on the office in which the attorney works (see Section 73 paragraph 2 no. 3 in conjunction with 73 paragraph 5 of the Federal Lawyers Act (BRAO)). Information is available on the websites of the Regional Bar Association offices. In the alternative, a party may also call on the mediation office of the Federal Bar Association (see Section 191 et seq. of the Federal Lawyers Act (BRAO)). Additional information is available on the website of the Federal Bar Association (www.brak.de) or may be requested by e-mail from schlichtungsstelle@brak.de. For all other information required to be disclosed under the Regulations on Disclosure Obligations of Service Providers (DL-InfoV), please refer to the legal notice on our website at www.fps-law.de. LEGAL NOTICE 2015 FPS Fritze Wicke Seelig Partnerschaftsgesellschaft von Rechtsanwälten mbb BERLIN Kurfürstendamm 220 10719 Berlin T +49 30 88 59 27-0 F +49 30 88 22 26-0 berlin@fps-law.de DÜSSELDORF Königsallee 60 C (KÖ-Höfe) 40212 Düsseldorf T +49 211 30 20 15-0 F +49 211 30 20 15-90 duesseldorf@fps-law.de FRANKFURT AM MAIN HAMBURG Große Theaterstr. 42 20354 Hamburg T +49 40 37 89 01-0 F +49 40 36 62 98 hamburg@fps-law.de Eschersheimer Landstr. 25 27 60322 Frankfurt am Main T +49 69 95 957-0 F +49 69 95 957-455 frankfurt@fps-law.de