CURRENT PUBLIC TENDER OFFERS UNDER THE GERMAN SECURITIES ACQUISITION AND TAKEOVER ACT

TAKEOVER MONTHLY2015 | 4

necessary to appoint new members to Adler’s management board or to remove members from Westgrund’s management board.

Possible changes that will be made in the course of the integra-tion relating to the organizational structure and processes may result in job cuts in the administrative departments of West-grund and, possibly, also the Adler group. Adler pursues the target of consolidating Westgrund. It has reserved the right to use all legally admissible means to align the company structures of the Westgrund group and the Adler group. Adler also intends to use the Adler group’s know-how to privatize those parts of the Westgrund group’s real estate portfolio that do not fit into the Adler group’s business strategy.

After the completion of the takeover offer, Adler plans to review whether it should cause Westgrund to apply for a change of the Westgrund-Shares’ listing (namely from the Prime Standard sub-segment of the regulated market of the Frankfurt Stock Exchange to the Entry Standard sub-segment of the Open Market segment of the Frankfurt Stock Exchange) as well as for delisting its shares from trading on the regulated market of the Düsseldorf Stock Exchange.

COMPLETED OFFERSAmended takeover offer for shares of Data Modul AGThe amended takeover offer of Arrow Central Europe Hold-ing Munich GmbH, with registered office in Munich (“Arrow CEHM”), to the shareholders of Data Modul AG, Munich (“Data Modul”), to acquire their no-par value bearer shares in Data Modul (“Data Modul-Shares”) against a cash consideration of 27.50 euros per Data Modul-Share was accepted for approx. 19.44 percent of the Data Modul-Shares. The total of Data Modul-Shares for which the offer was accepted and additional Data Modul-Shares (equivalent to approx. 34.22 percent of the share capital), which Arrow CEHM acquired outside the offer on the basis of a share purchase agreement, amounts to approx. 53.66 percent of the Data Modul-Shares.

Acquisition offer to the shareholders of Youniq AGThe voluntary acquisition offer of Corestate Ben BidCo AG, Frankfurt am Main, to the shareholders of Youniq AG, Frankfurt am Main, to acquire their ordinary bearer shares of Youniq AG (“Youniq-Shares”) against a cash consideration of 1.40 euro per Youniq-Share was accepted by approx. 8.69 percent of You-niq AG’s share capital. Together with Youniq-Shares for which the offer was accepted, Corestate Ben BidCo AG increased its shareholding in Youniq AG from approx. 83.50 percent to approx. 92.20 percent of Youniq AG’s share capital.

The offer also involves another interesting aspect: Because Corestate Ben Bidco AG had completed a mandatory offer for the acquisition of Youniq-Shares against a cash consideration of 1.02 euro per Youniq-Share in December 2014, any acquisition of Youniq-Shares by acceptance of the voluntary acquisition offer during the relevant one year period also constituted an off-market acquisition of Youniq-Shares against a higher consideration than that offered in the mandatory offer. As a consequence, the share-

holders of Youniq AG who accepted the previous mandatory offer are entitled to a payment of the differential, which is 0.38 euro, for each Youniq-Share acquired in the previous mandatory offer.

Amended takeover offer for shares of DMG MORI SEIKI AGThe amended takeover offer of DMG MORI GmbH, Stuttgart, to the shareholders of DMG MORI SEIKI AG, Bielefeld (“DMG MS AG”), to acquire all no-par value bearer shares in DMG MS AG (“DMG MS AG-Shares”) against an increased cash consideration of 30.55 euros for each DMG MS AG-Share was accepted by approx. 11.90 percent of DMG MS AG’s share capital.

DMG MORI GmbH acted jointly with its sole shareholder and parent company DMG MORI SEIKI CO., LTD., Yamato-Koriyama, Nara, Japan (“DMG MS CO”). Through acquisitions of additional DMG MS AG-Shares during the acceptance period, DMG MS CO increased its shareholding in DMG MS AG from approx. 26.50 percent to approx. 33.70 percent. In addition, also DMG MORI GmbH acquired approx. 6.94 percent of the DMG MS AG-Shares outside the offer proceeding. Together with the DMG MS AG-Shares for which the offer was accepted, the DMG MS AG-Shares held and acquired by DMG MS CO and DMG MORI GmbH correspond to a total of approx. 52.54 percent of DMG MS AG’s share capital.

Amended takeover offer for shares of MeVis Medical Solu-tions AGThe takeover offer of VMS Deutschland Holdings GmbH, Darmstadt (“VMS”), to the shareholders of MeVis Medical Solutions AG, Bremen (“MeVis”), to acquire their no-par value registered shares of MeVis (“MeVis-Shares”) against a cash consideration of 17.50 euros per MeVis-Share was accepted by approx. 73.52 percent of MeVis’s share capital. As VMS, an indirect subsidiary of Varian Medical Systems, Inc., with its registered office in Wilmington, Delaware, USA, did not hold MeVis-Shares before the offer, it now holds approx. 73.52 per-cent of MeVis’s share capital.

Takeover offer for shares of Vossloh AGThe takeover offer of KB Holding GmbH, Grünwald, to the share-holders of Vossloh AG, Werdohl (“Vossloh”), to acquire their no-par value bearer shares in Vossloh (“Vossloh-Shares”) against a cash consideration of 48.50 euros per Vossloh-Share was accepted by approx. 0.22 percent of Vossloh’s share capital. The completion of the offer is still subject to certain merger control clearances being obtained until and including January 29, 2016. Together with Vossloh-Shares for which the offer was accepted, KB Holding GmbH increased its shareholding from approx. 29.99 percent to approx. 30.21 percent of Vossloh’s share capital, therewith acquiring control of Vossloh. As a result of having acquired control on the basis of the takeover offer, KB Holding GmbH is not obliged to make a mandatory offer if it further increases its shareholding in Vossloh.

COMBINED CASH AND ExCHANGE OFFER FOR SHARES OF WESTGRUND AGThe current takeover offer to the shareholders of Westgrund AG is a combined cash and exchange offer. Prior to this offer, only five public tender offers pursuant to the WpÜG have been made since the entry into force of that Act, which either offered securi-ties as an alternative to cash or offered a combination of both as consideration. The last combined cash and exchange offer was the takeover offer to the shareholders of Gagfah S.A., which was published in December 2014.

The takeover offers for shares of Data Modul AG, DMG MORI SEIKI AG, MeVis Medical Solutions AG and Vossloh AG, as well as the acquisition offer for shares of Youniq AG, have been completed.

CURRENT PUBLIC TENDER OFFERS UNDER THE GERMAN SECURITIES ACQUISITION AND TAKE-OVER ACT (“WPÜG”): OFFERS, RESULTS AND ANALYSESTakeover offer for shares of Westgrund AGAdler Real Estate AG, Frankfurt am Main (“Adler”), is offering the shareholders of Westgrund AG, Berlin (“Westgrund”), to acquire their bearer shares of Westgrund (“Westgrund-Shares”) during the acceptance period until May 28, 2015. In exchange for three tendered Westgrund-Shares, Adler offers a twofold consid-eration consisting of (i) a cash payment in the amount of 9.00 euros, as well as (ii) 0.565 new bearer shares of Adler including the right to share in profits as of January 1, 2015. If Westgrund-Shares are created by conversion of the Westgrund convertible bond 2014/2016 before the expiration of the additional accep-tance period, Adler’s takeover offer, which is directed at acquiring all Westgrund-Shares, will also apply to such Westgrund-Shares.

The offer’s completion conditions require the entry in the com-mercial register of the implementation of the capital increase against contributions in kind to the extent required to complete the takeover offer until October 31, 2015. In addition, West-grund’s share capital may not be increased by more than 10 per- cent (not considering possible increases of the share capital as result of conversions of the convertible bond 2014/2016) until the expiration of the acceptance period. During the same period of time, Westgrund’s shareholders’ meeting may not pass a resolution on distributing dividends, or on any amendment of the articles of association providing for a change of a majority requirement for all or certain resolutions of the shareholders’ meeting or other corporate bodies of Westgrund or on dissolving Westgrund. Moreover, neither a loss of 50 percent of West-grund’s share capital nor the application or commencement of insolvency proceedings involving the assets of Westgrund may occur during the same period of time.

Adler is acting jointly with its subsidiaries, as well as with Mezzanine IX Investors S.A., with registered seat in Luxembourg (Grand Duchy of Luxembourg), which holds approx. 37.04 percent of Adler’s share capital. Adler and its subsidiaries did not hold Westgrund-Shares before the offer but Mezzanine IX Investors

S.A. holds approx. 2.88 percent of the Westgrund-Shares. Adler has entered into agreements with shareholders of Westgrund regarding the tendering of Westgrund-Shares, as well as regarding Westgrund-Shares resulting from the conversion of Westgrund convertible bonds 2014/2016, for acceptance of the offer.

Due to the 95 percent threshold applicable in German real estate transfer tax law where any direct or indirect acquisition of at least 95 percent of the shares in a company means that all real property of that company located in Germany becomes subject to real estate transfer tax, Adler, for tax reasons, intends to acquire a maximum of 94.9 percent of the Westgrund-Shares as result of the takeover offer. For the purpose of avoiding this tax risk, Adler has entered into Non Tender Agreements with two shareholders of Westgrund (“Non Tender Shareholders”). They provide that these Non Tender Shareholders will only accept the takeover offer for the Westgrund-Shares held by them at the time of concluding the Non Tender Agreements after being requested to do so by Adler. In case the total number of Westgrund-Shares tendered for acceptance of the takeover offer were to result in a participation of Adler of more than 94.9 per-cent of Westgrund’s share capital, the Non Tender Shareholders have, among others, undertaken in additional agreements with Adler and the Settlement Agent for the takeover offer to exercise their respective rights of withdrawal from the acceptance of the takeover offer for as many Westgrund-Shares, pro rata together with the respective other Non Tender Shareholder’s tendered Westgrund-Shares, as needed to stay below the 94.9 percent threshold.

The takeover offer aims at achieving synergies from cost reduc-tions by combining both enterprises. After the completion of the offer, it is planned to carry out an analysis of possible syner-gies. In case of a successful completion of the offer, Westgrund will become a subsidiary of Adler and thus part of the Adler group. To the extent legally admissible, Westgrund’s real estate portfolio is to be integrated into the real estate portfolio of the Adler group. The combined group is to be under Adler’s strategic and operative leadership. To the extent legally admissible, the financing of the Adler group (including the Westgrund group) is to be newly structured. According to Adler’s knowledge, the Westgrund group has entered into financing agreements that include change of control clauses which could be triggered in the event of a successful takeover offer. If lending banks or creditors of Westgrund bonds were to terminate financing agreements or bonds or demand repayment, on the basis of such change of control clauses, Adler would have to refinance the Westgrund group at short notice.

Adler intends to use its voting rights after completing the offer in Westgrund’s shareholders’ meeting to achieve a representation in Westgrund’s supervisory board that adequately reflects its shareholding in Westgrund. In addition, within its possibilities as a shareholder, Adler wishes to work towards changes in West- grund’s management board, in particular with a view to staff-ing the management boards of Adler and Westgrund entirely or partly with the same persons. For this purpose it may become

takeover monthly 2015 | 4 takeover monthly 2015 | 42 3

necessary to appoint new members to Adler’s management board or to remove members from Westgrund’s management board.

Possible changes that will be made in the course of the integra-tion relating to the organizational structure and processes may result in job cuts in the administrative departments of West-grund and, possibly, also the Adler group. Adler pursues the target of consolidating Westgrund. It has reserved the right to use all legally admissible means to align the company structures of the Westgrund group and the Adler group. Adler also intends to use the Adler group’s know-how to privatize those parts of the Westgrund group’s real estate portfolio that do not fit into the Adler group’s business strategy.

After the completion of the takeover offer, Adler plans to review whether it should cause Westgrund to apply for a change of the Westgrund-Shares’ listing (namely from the Prime Standard sub-segment of the regulated market of the Frankfurt Stock Exchange to the Entry Standard sub-segment of the Open Market segment of the Frankfurt Stock Exchange) as well as for delisting its shares from trading on the regulated market of the Düsseldorf Stock Exchange.

COMPLETED OFFERSAmended takeover offer for shares of Data Modul AGThe amended takeover offer of Arrow Central Europe Hold-ing Munich GmbH, with registered office in Munich (“Arrow CEHM”), to the shareholders of Data Modul AG, Munich (“Data Modul”), to acquire their no-par value bearer shares in Data Modul (“Data Modul-Shares”) against a cash consideration of 27.50 euros per Data Modul-Share was accepted for approx. 19.44 percent of the Data Modul-Shares. The total of Data Modul-Shares for which the offer was accepted and additional Data Modul-Shares (equivalent to approx. 34.22 percent of the share capital), which Arrow CEHM acquired outside the offer on the basis of a share purchase agreement, amounts to approx. 53.66 percent of the Data Modul-Shares.

Acquisition offer to the shareholders of Youniq AGThe voluntary acquisition offer of Corestate Ben BidCo AG, Frankfurt am Main, to the shareholders of Youniq AG, Frankfurt am Main, to acquire their ordinary bearer shares of Youniq AG (“Youniq-Shares”) against a cash consideration of 1.40 euro per Youniq-Share was accepted by approx. 8.69 percent of You-niq AG’s share capital. Together with Youniq-Shares for which the offer was accepted, Corestate Ben BidCo AG increased its shareholding in Youniq AG from approx. 83.50 percent to approx. 92.20 percent of Youniq AG’s share capital.

The offer also involves another interesting aspect: Because Corestate Ben Bidco AG had completed a mandatory offer for the acquisition of Youniq-Shares against a cash consideration of 1.02 euro per Youniq-Share in December 2014, any acquisition of Youniq-Shares by acceptance of the voluntary acquisition offer during the relevant one year period also constituted an off-market acquisition of Youniq-Shares against a higher consideration than that offered in the mandatory offer. As a consequence, the share-

holders of Youniq AG who accepted the previous mandatory offer are entitled to a payment of the differential, which is 0.38 euro, for each Youniq-Share acquired in the previous mandatory offer.

Amended takeover offer for shares of DMG MORI SEIKI AGThe amended takeover offer of DMG MORI GmbH, Stuttgart, to the shareholders of DMG MORI SEIKI AG, Bielefeld (“DMG MS AG”), to acquire all no-par value bearer shares in DMG MS AG (“DMG MS AG-Shares”) against an increased cash consideration of 30.55 euros for each DMG MS AG-Share was accepted by approx. 11.90 percent of DMG MS AG’s share capital.

DMG MORI GmbH acted jointly with its sole shareholder and parent company DMG MORI SEIKI CO., LTD., Yamato-Koriyama, Nara, Japan (“DMG MS CO”). Through acquisitions of additional DMG MS AG-Shares during the acceptance period, DMG MS CO increased its shareholding in DMG MS AG from approx. 26.50 percent to approx. 33.70 percent. In addition, also DMG MORI GmbH acquired approx. 6.94 percent of the DMG MS AG-Shares outside the offer proceeding. Together with the DMG MS AG-Shares for which the offer was accepted, the DMG MS AG-Shares held and acquired by DMG MS CO and DMG MORI GmbH correspond to a total of approx. 52.54 percent of DMG MS AG’s share capital.

Amended takeover offer for shares of MeVis Medical Solu-tions AGThe takeover offer of VMS Deutschland Holdings GmbH, Darmstadt (“VMS”), to the shareholders of MeVis Medical Solutions AG, Bremen (“MeVis”), to acquire their no-par value registered shares of MeVis (“MeVis-Shares”) against a cash consideration of 17.50 euros per MeVis-Share was accepted by approx. 73.52 percent of MeVis’s share capital. As VMS, an indirect subsidiary of Varian Medical Systems, Inc., with its registered office in Wilmington, Delaware, USA, did not hold MeVis-Shares before the offer, it now holds approx. 73.52 per-cent of MeVis’s share capital.

Takeover offer for shares of Vossloh AGThe takeover offer of KB Holding GmbH, Grünwald, to the share-holders of Vossloh AG, Werdohl (“Vossloh”), to acquire their no-par value bearer shares in Vossloh (“Vossloh-Shares”) against a cash consideration of 48.50 euros per Vossloh-Share was accepted by approx. 0.22 percent of Vossloh’s share capital. The completion of the offer is still subject to certain merger control clearances being obtained until and including January 29, 2016. Together with Vossloh-Shares for which the offer was accepted, KB Holding GmbH increased its shareholding from approx. 29.99 percent to approx. 30.21 percent of Vossloh’s share capital, therewith acquiring control of Vossloh. As a result of having acquired control on the basis of the takeover offer, KB Holding GmbH is not obliged to make a mandatory offer if it further increases its shareholding in Vossloh.

COMBINED CASH AND ExCHANGE OFFER FOR SHARES OF WESTGRUND AGThe current takeover offer to the shareholders of Westgrund AG is a combined cash and exchange offer. Prior to this offer, only five public tender offers pursuant to the WpÜG have been made since the entry into force of that Act, which either offered securi-ties as an alternative to cash or offered a combination of both as consideration. The last combined cash and exchange offer was the takeover offer to the shareholders of Gagfah S.A., which was published in December 2014.

The takeover offers for shares of Data Modul AG, DMG MORI SEIKI AG, MeVis Medical Solutions AG and Vossloh AG, as well as the acquisition offer for shares of Youniq AG, have been completed.

CURRENT PUBLIC TENDER OFFERS UNDER THE GERMAN SECURITIES ACQUISITION AND TAKE-OVER ACT (“WPÜG”): OFFERS, RESULTS AND ANALYSESTakeover offer for shares of Westgrund AGAdler Real Estate AG, Frankfurt am Main (“Adler”), is offering the shareholders of Westgrund AG, Berlin (“Westgrund”), to acquire their bearer shares of Westgrund (“Westgrund-Shares”) during the acceptance period until May 28, 2015. In exchange for three tendered Westgrund-Shares, Adler offers a twofold consid-eration consisting of (i) a cash payment in the amount of 9.00 euros, as well as (ii) 0.565 new bearer shares of Adler including the right to share in profits as of January 1, 2015. If Westgrund-Shares are created by conversion of the Westgrund convertible bond 2014/2016 before the expiration of the additional accep-tance period, Adler’s takeover offer, which is directed at acquiring all Westgrund-Shares, will also apply to such Westgrund-Shares.

The offer’s completion conditions require the entry in the com-mercial register of the implementation of the capital increase against contributions in kind to the extent required to complete the takeover offer until October 31, 2015. In addition, West-grund’s share capital may not be increased by more than 10 per- cent (not considering possible increases of the share capital as result of conversions of the convertible bond 2014/2016) until the expiration of the acceptance period. During the same period of time, Westgrund’s shareholders’ meeting may not pass a resolution on distributing dividends, or on any amendment of the articles of association providing for a change of a majority requirement for all or certain resolutions of the shareholders’ meeting or other corporate bodies of Westgrund or on dissolving Westgrund. Moreover, neither a loss of 50 percent of West-grund’s share capital nor the application or commencement of insolvency proceedings involving the assets of Westgrund may occur during the same period of time.

Adler is acting jointly with its subsidiaries, as well as with Mezzanine IX Investors S.A., with registered seat in Luxembourg (Grand Duchy of Luxembourg), which holds approx. 37.04 percent of Adler’s share capital. Adler and its subsidiaries did not hold Westgrund-Shares before the offer but Mezzanine IX Investors

S.A. holds approx. 2.88 percent of the Westgrund-Shares. Adler has entered into agreements with shareholders of Westgrund regarding the tendering of Westgrund-Shares, as well as regarding Westgrund-Shares resulting from the conversion of Westgrund convertible bonds 2014/2016, for acceptance of the offer.

Due to the 95 percent threshold applicable in German real estate transfer tax law where any direct or indirect acquisition of at least 95 percent of the shares in a company means that all real property of that company located in Germany becomes subject to real estate transfer tax, Adler, for tax reasons, intends to acquire a maximum of 94.9 percent of the Westgrund-Shares as result of the takeover offer. For the purpose of avoiding this tax risk, Adler has entered into Non Tender Agreements with two shareholders of Westgrund (“Non Tender Shareholders”). They provide that these Non Tender Shareholders will only accept the takeover offer for the Westgrund-Shares held by them at the time of concluding the Non Tender Agreements after being requested to do so by Adler. In case the total number of Westgrund-Shares tendered for acceptance of the takeover offer were to result in a participation of Adler of more than 94.9 per-cent of Westgrund’s share capital, the Non Tender Shareholders have, among others, undertaken in additional agreements with Adler and the Settlement Agent for the takeover offer to exercise their respective rights of withdrawal from the acceptance of the takeover offer for as many Westgrund-Shares, pro rata together with the respective other Non Tender Shareholder’s tendered Westgrund-Shares, as needed to stay below the 94.9 percent threshold.

The takeover offer aims at achieving synergies from cost reduc-tions by combining both enterprises. After the completion of the offer, it is planned to carry out an analysis of possible syner-gies. In case of a successful completion of the offer, Westgrund will become a subsidiary of Adler and thus part of the Adler group. To the extent legally admissible, Westgrund’s real estate portfolio is to be integrated into the real estate portfolio of the Adler group. The combined group is to be under Adler’s strategic and operative leadership. To the extent legally admissible, the financing of the Adler group (including the Westgrund group) is to be newly structured. According to Adler’s knowledge, the Westgrund group has entered into financing agreements that include change of control clauses which could be triggered in the event of a successful takeover offer. If lending banks or creditors of Westgrund bonds were to terminate financing agreements or bonds or demand repayment, on the basis of such change of control clauses, Adler would have to refinance the Westgrund group at short notice.

Adler intends to use its voting rights after completing the offer in Westgrund’s shareholders’ meeting to achieve a representation in Westgrund’s supervisory board that adequately reflects its shareholding in Westgrund. In addition, within its possibilities as a shareholder, Adler wishes to work towards changes in West- grund’s management board, in particular with a view to staff-ing the management boards of Adler and Westgrund entirely or partly with the same persons. For this purpose it may become

takeover monthly 2015 | 4 takeover monthly 2015 | 42 3

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The Morgan Lewis takeover monthly is a documentation of current public tender offers in Germany which Morgan Lewis publishes for its clients and interested persons. This issue covers published and announced offers until May 12, 2015.

All issues of the Morgan Lewis takeover monthly are available at our website www.morganlewis.de.

If you have any questions regarding Morgan Lewis or this takeover monthly, please contact your contact partner at Morgan Lewis and/or Dr. Christian Zschocke in the Frankfurt office at takeover@morganlewis.de.

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