Rechtsformwechsel & Sitzverlegung

Am 8. März 2021 haben Vorstand und Aufsichtsrat der Stabilus S.A. (ISIN: LU1066226637) beschlossen, den Rechtsformwechsel (die Umwandlung) der Gesellschaft von einer Société Anonyme (S.A.) nach Luxemburger Recht in eine Europäische Aktiengesellschaft (Societas Europaea, SE) und eine anschließende Sitzverlegung der Gesellschaft von Luxemburg nach Deutschland vorzubereiten.

Ad-hoc-Meldung vom 8. März 2021

Unternehmensmitteilung vom 8. März 2021

 

Die folgenden Fragen und Antworten (Q&A) erläutern die wesentlichen Aspekte des Rechtsformwechsels und der Sitzverlegung.

 

Fragen und Antworten (Englisch)

Change of legal form (conversion)

What is a Societas Europaea (SE)?

The SE is a legal form under European law which is available in all member states of the European Union and other signatory states to the Agreement on the European Economic Area (EEA). Its share capital is divided into shares and held by shareholders. It is intended in particular for companies operating across borders. An SE with registered office in Luxembourg is largely comparable to a Luxembourg public limited liability company (Société Anonyme, S.A.) and – with registered office in Germany – largely corresponds to a German stock corporation.

Do other companies use this legal form?

Today many renowned European companies listed in DAX, MDAX and SDAX, having a global footprint and activities, use the legal form of an SE, e.g. Airbus SE, BASF SE, Norma Group SE, SAF-Holland SE and Traton SE.

What is the reason for Stabilus to use the legal form of an SE?

The SE is a European Company emphasizing the international orientation and global activities, rather than being a purely Luxembourg or German company. This legal form is today well accepted by capital markets and market participants. Therefore, Stabilus considers this as a suitable legal form.

Furthermore, the SE offers the flexibility to transfer its registered office within the EU or the EEA. This transfer is based on express statutory regulations and allows for a transfer without changing the legal entity or the legal form. This allows Stabilus to easily relocate its registered office to Germany in the legal form of an SE. Also the SE allows Stabilus to maintain its dualistic system with separate bodies for management (management board) and supervision (supervisory board).

What are the major steps to change the legal form from a S.A. to an SE?

The management board and the supervisory board resolve to enter into the conversion process. At the same time, all relevant documents for the conversion are being prepared, e.g. the Draft Terms of the Conversion, the Conversion Report of the management board and revised Articles of the Association.

In the Conversion Report the legal and economic aspects of the conversion are explained and justified as well as the effects of the conversion to the legal form of an SE on shareholders and employees are outlined.

The Draft Terms of the Conversion shall be published in accordance with the legal provisions applicable in Luxembourg.

An auditor must certify that the net assets of the Company are at least equal to the amount of the share capital plus non-distributable reserves.

The general meeting of the Company shall resolve on the conversion as well as on the conversion documents required under the company law at the earliest one month after the publication of the Draft Terms of the Conversion.

After the general meeting the conversion into an SE must be filed for registration with the commercial register in Luxembourg. The registration concludes the change from the S.A. to an SE.

Is a quorum required for the general meeting resolving the conversion?

Yes, a quorum is required. The quorum requires that more than 50% of the shareholders holding voting rights are present or represented.

What majority is required in the general meeting resolving the conversion?

The resolutions on the conversion require the approval of more than 2/3 of the votes of the shareholders present or represented.

What if the quorum is not reached for the general meeting resolving on the conversion?

If the previously mentioned quorum is not reached at the general meeting, the Company may convene a further general meeting, which may also pass resolutions without a quorum. At this further general meeting too, the approval of more than 2/3 of the votes of the shareholders who are present or represented is required.

When is the conversion legally effective?

The conversion becomes effective when it is registered in the Luxembourg commercial register. It is currently planned to achieve this registration shortly after the extraordinary general meeting, which is expected to take place in the fourth quarter of calendar year 2021.

Is the conversion affecting the stock exchange listing?

No. The listing of Stabilus shares on the Frankfurt Stock Exchange is not affected by the conversion. The shareholders’ rights and the financial reporting will also not be affected by the conversion.

What will change for the shareholders?

Shareholders of Stabilus S.A. remain shareholders of Stabilus SE once the conversion is legally effective. The legal status of the shareholders of Stabilus S.A. will in priciple remain unaffected. Each shareholder will hold the same numbers of shares in Stabilus SE as previously held in Stabilus S.A.

Does the WKN or ISIN change?

No, the WKN and ISIN remain unchanged by the conversion.

Does the conversion of the S.A. into an SE trigger income tax effects at level of the Company?

The conversion from a S.A. into an SE should not trigger substantial income tax effects at level of the Company.

Does the conversion of the S.A. into an SE trigger income tax effects at level of the shareholders?

No substantial tax effects at level of the shareholders should be triggered by the conversion. Notwithstanding the foregoing, the assessment of the tax consequences requires a consideration of the individual circumstances of the shareholder. It is therefore recommended that the shareholders consult their own tax advisors with respect to their individual tax situations.

Why will the Company’s share capital be increased from own funds as part of the conversion of the legal form?

The increase of the share capital is a preparatory step for the relocation that is intended. It is not a general prerequisite for the transfer of the registered office of an SE. However, for the purpose of transferring the registered office to Germany, each Stabilus share must correspond to at least € 1.00 of the share capital. Currently Stabilus shares have a nominal value of € 0.01 per share. In order to increase the proportionate amount of the shares in the share capital from € 0.01 to € 1.00, an increase in the share capital from Company’s own funds is planned.

Does the capital increase trigger tax effects at level of the shareholders?

No substantial income tax effects at level of the shareholders should be triggered by the capital increase from the share premium account, i.e., the Company’s own funds.

Please note, for German tax resident shareholders there is no clear guidance from German tax authorities available with respect to a capital increase from the share premium account without the issuance of new shares. Moreover, also no clear tax literature opinion or court rulings exist. In the past, German depositary banks levied withholding tax or adjusted acquisition cost in case of foreign capital measures to which no clear legal situation applied, even if the income tax neutrality of the foreign capital measure was later confirmed by German tax authorities. Currently, Stabilus S.A. is coordinating with German tax authorities, in order to receive confirmation of the tax neutrality of the capital increase from the share premium account in advance. Based on this confirmation, depositary banks can then refrain from withholding taxes or adjusting acquisition costs.

Notwithstanding the foregoing, the assessment of the tax consequences requires a consideration of the individual circumstances of the shareholder. It is therefore recommended that the shareholders consult their own tax advisors with respect to their individual tax situations.

 

Transfer of the registered office to Germany (relocation)

Why should the registered office of the Company be transferred from Luxembourg to Germany?

Stabilus S.A. as the ultimate parent company of the Stabilus Group is a holding company and is located in Luxembourg due to the shareholder structure prior to the IPO in 2014. Stabilus was founded in Germany.

The transfer of the registered office to Germany is another step to further simplify the overall group structure.

The Company’s shares are listed on the Frankfurt Stock Exchange. After the transfer of the registered office to Germany, the Company will have its registered office in the same country in which its shares are listed.

The Company is the ultimate parent company of the Stabilus Group and after the transfer it will have its registered office in the same country where some of its major subsidiaries are registered.

The transfer of the registered office to Germany reduces administrative complexity as well as cost, e.g. in the areas of accounting, financing, legal and tax. This will facilitate the management of the Company and the Group.

What are the financial effects of the transfer of the registered office for the Stabilus Group?

It is expected that the transfer of the registered office will lead to sustained savings in the annual running costs. In particular, there will be no longer expenses for maintaining the holding functions in Luxembourg, i.e. savings can be achieved in advisory, consulting, financing, other administrative costs and taxes.

Does the transfer of the registered office change the legal form of the SE?

The transfer of the registered office does not lead to a change in the legal form of the SE. The SE as a European legal form enables the migration from one member state of the EU or another EEA state to another EU member state or EEA state. However, Stabilus SE is governed by the SE Regulation and by Luxembourg law before the transfer and will be governed by the SE Regulation and by German law after the transfer, i.e. as of the date the transfer of the registered office comes into legal effect. With the transfer of the registered office, the SE largely corresponds to a German stock corporation.

Which effects will the transfer of registered office have on the shareholders?

The legal relationships of Stabilus SE, which is primarily governed by the SE Regulation and Luxembourg law, are subject to the SE Regulation and German law as of the date of the transfer of the registered office and, thus, also the rights and obligations of the shareholders. Therefore, the Company will adapt its Articles of Association to the requirements of German law by transferring its registered office.

What are the main steps of a transfer of a registered office from Luxembourg to Germany?

The transfer of the registered office of a Luxembourg SE requires a resolution of the management board as well as the preparation and publication of the documents required under the SE Regulation, such as the relocation plan and the relocation report of the management board; the relocation report is a report that explains and justifies the legal and economic aspects of the transfer and explains the implications of the transfer for shareholders, creditors and employees. Furthermore, the Articles of Association must be adapted to the requirements of German law and a corresponding resolution must be adopted by the general meeting of the Company.

Is a quorum required for the general meeting resolving the relocation?

Yes, a quorum is required. The quorum requires that more than 50% of the shareholders holding voting rights are present or represented.

What majority is required in the general meeting resolving the relocation?

The resolutions on the relocation require the approval of more than 2/3 of the votes of the shareholders present or represented.

What if the quorum is not reached for the general meeting resolving on the relocation?

If the previously mentioned quorum is not reached at the general meeting, the Company may convene a further general meeting, which may also pass resolutions without a quorum. At this further general meeting, the approval of more than 2/3 of the votes of the shareholders who are present or represented is required.

When shall the transfer of the registered office take place?

It is planned that the extraordinary general meeting of the Company, which is expected to take place in the first quarter of calendar year 2022 following the annual general meeting, will decide on the transfer of the registered office. The legal preparation of the transfer of the registered office will begin after the conversion of the legal form of the Company into an SE. A period of at least two months must pass between the publication of the transfer plan and the general meeting which is to decide on the transfer of the registered office.

When shall the transfer of the registered office come into legal effect?

The transfer of the registered office becomes effective when it is registered in the competent German commercial register. It is currently planned to achieve this registration shortly after the general meeting, which adopts the resolution on the transfer of the registered office. This general meeting is planned for the first quarter of calendar year 2022.

Is a change in the corporate governance of the Company planned with the transfer of the registered office?

The Company maintains its dualistic model with a management board and a supervisory board, which is mandatory for German stock corporations and also exists at most German SEs.

Does the relocation trigger immediate tax effects at level of Stabilus SE?

As a result of the relocation, the Company will have to determine its profits for Luxembourg tax purposes as if it would have been liquidated. This applies to any gains allocable to its investments. However, such gains are generally tax exempt. It is currently assumed that no significant income tax burden is triggered at level of Stabilus SE for Luxembourg tax purposes.

Stabilus SE becomes subject to resident corporate income tax liability in Germany following the migration. As a result, Stabilus SE is generally subject to corporate income tax plus solidarity surcharge and trade tax with its total income in Germany.

Does the migration trigger immediate income tax effects at level of the shareholders of Stabilus SE?

Generally, no immediate income tax burdens should be triggered for the shareholders. Notwithstanding the foregoing, the assessment of the tax consequences requires a consideration of the individual circumstances of each shareholder. It is therefore recommended that the shareholders consult their own tax advisors with respect to their individual tax situations.

Does the migration trigger tax effects with respect to taxation of dividends and capital gains at level of German tax resident shareholders?

Dividends and capital gains remain subject to German resident income / corporate income tax liability at level of German tax resident shareholders.

Depending on the individual situations of each shareholder, Luxembourg could, however, have had a withholding taxation right with respect to dividends. In this case Germany generally had to credit such withholding tax. After the migration, Luxembourg does no longer have any withholding taxation right. With respect to capital gains, a Luxembourg taxation right should have been excluded by the double taxation treaty between Germany and Luxembourg for shareholders entitled to treaty benefit.

Notwithstanding the foregoing, the assessment of the tax consequences requires a consideration of the individual circumstances of the shareholder. It is therefore recommended that the shareholders consult their own tax advisors with respect to their individual tax situations.

Does the migration trigger tax effects with respect to taxation of dividends and capital gains at level of non-German tax resident shareholders due to German tax law?

Dividends received by a shareholder not tax resident in Germany will firstly be subject to German withholding tax at 25% plus 5.5% solidarity surcharge thereon. However, (i) a corporate shareholder may apply for refund of German withholding tax exceeding 15% plus 5.5% solidarity surcharge thereon; (ii) in case the foreign corporate shareholder is resident in a EU member state holding directly at least 10%, withholding tax is reduced to nil; (iii) in case the non-German shareholder is resident in a treaty jurisdiction, a refund to usually 15% (possibly further refunds possible) can be claimed according to the relevant double taxation treaty. Both the refund and the reduction of German withholding tax depend on whether certain additional prerequisites can be fulfilled (e.g. formal and substance requirements).

Capital gains from the sale of shares by a shareholder not resident in Germany are only taxable in Germany if the shareholder holds a qualifying shareholding (i.e. at least 1% of the capital within the last five years has been held directly or indirectly; gratuitous transfers from predecessors must be taken into account). In such cases, the relevant double taxation treaties usually provide for partial or complete exemption from German taxation.

Notwithstanding the foregoing, the assessment of the tax consequences requires a consideration of the individual circumstances of each shareholder. It is therefore recommended that the shareholders consult their own tax advisors with respect to their individual tax situations.

Investorenkontakt

Andreas Schröder
Stabilus S.A.