prospectus for the public offering of shares of chorus clean energy ag

PROSPECTUS FOR
THE PUBLIC OFFERING
OF SHARES OF
CHORUS CLEAN
ENERGY AG
D_CCE_Prospekt-Umschlag_150616.indd 1
16.06.15 14:33
PROSPECTUS DATED JUNE 19, 2015
29MAY201516384881
Prospectus
for the public offering
of
12,000,000 newly issued bearer shares from an ordinary capital increase against contribution in cash
resolved by an extraordinary general shareholders’ meeting of the Company held on May 20, 2015
and of
737,384 existing bearer shares from the holdings of the Selling Shareholders
and of
1,909,928 existing bearer shares from the holdings of CHORUS CleanTech Solar GmbH & Co. KG,
CHORUS CleanTech Solar GmbH & Co. 2. KG, CHORUS CleanTech Solar GmbH & Co. 3. KG,
CHORUS CleanTech Solar GmbH & Co. 4. KG, CHORUS CleanTech Solar GmbH & Co. 5. KG,
CHORUS CleanTech Solar GmbH & Co. 6. KG, CHORUS CleanTech Solar GmbH & Co. 7. KG,
CHORUS CleanTech Solar GmbH & Co. 8. KG, CHORUS CleanTech Solar PP GmbH & Co. 3. KG,
CHORUS CleanTech Solar PP GmbH & Co. 4. KG, CHORUS CleanTech Solar PP GmbH & Co.
5. KG, CHORUS CleanTech Wind PP GmbH & Co. 6. KG, CHORUS CleanTech Wind
PP GmbH & Co. 7. KG, CHORUS CleanTech Wind PP GmbH & Co. 9. KG, CHORUS CleanTech
Solar PP GmbH & Co. 12. KG, CHORUS CleanTech Wind GmbH & Co. 10. KG, CHORUS
CleanTech Wind GmbH & Co. 11. KG, CHORUS CleanTech Portfolio GmbH & Co. KG, CHORUS
Equity CleanTech GmbH & Co. KG and CHORUS Equity CleanTech GmbH & Co. 2. KG to cover a
potential over-allotment
and at the same time for the
admission to trading on the regulated market segment (regulierter Markt) of the Frankfurt
Stock Exchange with simultaneous admission to the sub-segment of the regulated market
with additional post-admission obligations (Prime Standard) of the
Frankfurt Stock Exchange
of
up to 12,000,000 newly issued bearer shares and 17,448,539 existing bearer shares
each such share with a notional value of e1.00 and full dividend rights as of January 1, 2015
of
CHORUS Clean Energy AG
Neubiberg (county of Munich), Germany
Price Range: g9.75 to g12.50
International Securities Identification Number (ISIN): DE000A12UL56
WKN: A12UL5
Common Code: 122487342
Trading Symbol: CU1
Sole Global Coordinator
Berenberg
and Joint Bookrunners
Berenberg
BHF-BANK
(This page has been left blank intentionally.)
TABLE OF CONTENTS
Page
SUMMARY .................................................................................................................
SECTION A – INTRODUCTION
1
WARNINGS .................................................................
1
SECTION B – ISSUER ................................................................................................
1
SECTION C – SECURITIES ..........................................................................................
14
SECTION D – RISKS .................................................................................................
15
SECTION E – OFFER ................................................................................................
18
GERMAN TRANSLATION OF THE SUMMARY/ZUSAMMENFASSUNG ...............................
26
ABSCHNITT A – EINLEITUNG
A.
B.
C.
AND
WARNHINWEISE ............................................................
26
ABSCHNITT B – EMITTENT .........................................................................................
26
ABSCHNITT C – WERTPAPIERE ....................................................................................
41
ABSCHNITT D – RISIKEN ............................................................................................
43
ABSCHNITT E – ANGEBOT ..........................................................................................
45
RISK FACTORS ........................................................................................................
54
I.
RISKS RELATED
TO
54
II.
RISKS RELATED
TO THE
MARKET
III.
RISKS RELATED
TO THE
REORGANIZATION
IV.
RISKS RELATING
UND
REGULATION .........................................................................
AND
BUSINESS
OF THE
CHORUS GROUP ..................
PRE-IPO ..............
74
SHARES ..............................................
76
GENERAL INFORMATION .............................................................................................
79
I.
RESPONSIBILITY STATEMENT ..............................................................................
79
II.
PURPOSE
PROSPECTUS ..........................................................................
79
III.
FORWARD-LOOKING STATEMENTS ........................................................................
80
IV.
SOURCES
81
V.
DOCUMENTS AVAILABLE
VI.
CURRENCY PRESENTATION
VII.
PRESENTATION
OF THE
OF
OFFERING
TO THE
OF THE
AND THE
CHORUS GROUP
59
MARKET DATA ..............................................................................
FOR INSPECTION ..............................................................
FIGURES ......................................
84
FINANCIAL INFORMATION ...........................................................
84
THE OFFERING ........................................................................................................
86
I.
SUBJECT MATTER
86
II.
PRICE RANGE, OFFER PERIOD, OFFER PRICE
III.
EXPECTED TIMETABLE
IV.
GENERAL
V.
TRANSFERABILITY
OF
OF THE
AND
PRESENTATION
83
OF
OFFERING ...................................................................
FOR THE
ALLOTMENT ..................................
86
OFFERING ............................................................
88
AND
SHARES ...............................
88
SHARES .......................................................................
89
VI.
ALLOTMENT CRITERIA .......................................................................................
89
VII.
STABILIZATION MEASURES, OVER-ALLOTMENTS
GREENSHOE OPTION ...............
89
VIII.
MARKET PROTECTION AGREEMENT/SELLING RESTRICTIONS (LOCK-UP).........................
90
IX.
ADMISSION
LISTING ...................................................................
91
X.
DESIGNATED SPONSOR .....................................................................................
92
XI.
INTEREST
92
AND
TO
OF
SPECIFIC INFORMATION CONCERNING
OF THE
TRADING
AND
PERSONS INVOLVED
IN THE
THE
AND THE
OFFERING ................................................
i
D.
REASONS
OFFERING
AND
USE
E.
DIVIDENDS, DIVIDEND POLICY
AND
EARNINGS
FOR THE
OF
PROCEEDS .....................................................
94
SHARE .................................................
95
I.
DIVIDENDS .....................................................................................................
95
II.
DIVIDEND POLICY ............................................................................................
95
III.
EARNINGS
SHARE ......................................................................................
96
AND INDEBTEDNESS .............................................................................
97
I.
CAPITALIZATION ..............................................................................................
97
II.
NET FINANCIAL INDEBTEDNESS ...........................................................................
98
III.
CONTINGENT LIABILITIES
OTHER FINANCIAL LIABILITIES .......................................
98
IV.
WORKING CAPITAL STATEMENT ..........................................................................
98
V.
NO SIGNIFICANT CHANGE
TRADING POSITION .................................
98
G.
DILUTION ...............................................................................................................
99
H.
SELECTED FINANCIAL INFORMATION ..............................................................................
100
I.
COMBINED INCOME STATEMENT ..........................................................................
101
II.
COMBINED STATEMENT
OF
FINANCIAL POSITION ......................................................
102
III.
COMBINED STATEMENT
OF
CASH FLOWS ..............................................................
103
IV.
CONSOLIDATED INCOME STATEMENT ....................................................................
104
V.
CONSOLIDATED STATEMENT
OF
FINANCIAL POSITION ................................................
105
VI.
CONSOLIDATED STATEMENT
OF
CASH FLOWS ........................................................
106
I.
SELECTED PRO FORMA CONSOLIDATED FINANCIAL INFORMATION .........................................
107
J.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS ..........................................................................................................
108
I.
OVERVIEW .....................................................................................................
108
II.
KEY FACTORS AFFECTING RESULTS
OPERATIONS ...............................................
110
III.
COMPARABILITY
FINANCIAL INFORMATION ..........................................................
113
IV.
KEY ITEMS
COMBINED INCOME STATEMENTS ............................................
115
V.
RESULTS
OF
OPERATIONS .................................................................................
117
VI.
LIQUIDITY
AND
CAPITAL RESOURCES ....................................................................
121
VII.
FINANCIAL POSITION ........................................................................................
125
VIII.
OFF-BALANCE SHEET ARRANGEMENTS .................................................................
130
IX.
CONTINGENT LIABILITIES ...................................................................................
130
X.
CRITICAL ACCOUNTING POLICIES .........................................................................
130
XI.
ADDITIONAL INFORMATION FROM CHORUS CLEAN ENERGY AG’S FINANCIAL
STATEMENTS FOR THE SHORT FINANCIAL YEAR ENDED DECEMBER 31, 2014 PREPARED
IN ACCORDANCE WITH HGB ...............................................................................
131
INDUSTRY ..............................................................................................................
132
I.
MARKETS
RENEWABLE ENERGY ....................................................................
132
II.
PHOTOVOLTAICS .............................................................................................
134
III.
WIND ENERGY ................................................................................................
139
IV.
COMPETITION
144
F.
K.
CAPITALIZATION
PER
OF
FROM THE
FOR
AND
AND
IN
FINANCIAL
OF
PER
AND
COMPETITIVE POSITION
OF THE
ii
CHORUS GROUP ..........................
L.
M.
N.
O.
P.
REGULATION ...........................................................................................................
146
I.
REGULATORY ENVIRONMENT
AND
LEGAL FRAMEWORK
IN
EUROPE ...............................
146
II.
REGULATORY ENVIRONMENT
AND
LEGAL FRAMEWORK
IN
GERMANY .............................
146
III.
REGULATORY ENVIRONMENT
AND
LEGAL FRAMEWORK
IN ITALY
IV.
REGULATORY ENVIRONMENT
AND
LEGAL FRAMEWORK
V.
REGULATORY ENVIRONMENT
AND
VI.
REGULATORY ENVIRONMENT
VII.
REGULATORY ENVIRONMENT
..................................
150
IN
FRANCE ...............................
153
LEGAL FRAMEWORK
IN
AUSTRIA ..............................
154
AND
LEGAL FRAMEWORK
IN
SCANDINAVIA .........................
155
AND
LEGAL FRAMEWORK
IN THE
UK ...............................
155
BUSINESS ..............................................................................................................
157
I.
OVERVIEW .....................................................................................................
157
II.
HISTORY
CHORUS GROUP ....................................................................
158
III.
COMPETITIVE STRENGTHS .................................................................................
158
IV.
STRATEGY .....................................................................................................
160
V.
ENERGY GENERATION ......................................................................................
161
VI.
ADVISORY SERVICES ........................................................................................
171
VII.
INTELLECTUAL PROPERTY RIGHTS
IT .............................................................
173
VIII.
FIXED ASSETS
REAL PROPERTY ...................................................................
173
IX.
EMPLOYEES ...................................................................................................
173
X.
MATERIAL CONTRACTS .....................................................................................
173
XI.
LEGAL PROCEEDINGS .......................................................................................
174
XII.
INSURANCE ....................................................................................................
174
OF THE
REORGANIZATION
AND
OF THE
AND
CHORUS GROUP ..................................................................
176
I.
THE CHORUS GROUP
REORGANIZATION ...........................................
176
II.
THE REORGANIZATION ......................................................................................
176
SHAREHOLDER INFORMATION ......................................................................................
178
I.
SHAREHOLDER STRUCTURE ...............................................................................
178
II.
THE SELLING SHAREHOLDERS ............................................................................
179
III.
MANAGEMENT STOCK OPTION PROGRAM ..............................................................
179
RELATED PARTY TRANSACTIONS ..................................................................................
180
PRIOR TO THE
I.
CONSULTING AGREEMENT
PELABA CONSULT GMBH .......................................
180
II.
CONTRIBUTION AGREEMENTS .............................................................................
180
III.
INDEMNIFICATION AGREEMENT WITH PELABA ANLAGENVERWALTUNGS GMBH & CO. KG
AND HEINZ JAROTHE ........................................................................................
180
IV.
LEASE AGREEMENT
WITH
PELABA VERMÖGENSVERWALTUNGS GMBH & CO. KG ..........
180
V.
SHORT-TERM LOAN
GRANTED BY
PELABA VERWALTUNGS GMBH...............................
180
VI.
MERGER AGREEMENT
PELABA VERWALTUNGS GMBH .....................................
181
VII.
MANAGERIAL
VIII.
AUTHORIZATION
IX.
WITH
WITH
FUND KGS ..................................
181
MANAGEMENT PARTICIPATION/STOCK OPTION PROGRAM ....
181
INDEMNIFICATION AND COST REIMBURSEMENT DECLARATIONS BY THE SELLING
SHAREHOLDERS ..............................................................................................
181
AND
OTHER SERVICES RENDERED
TO
SET-UP
A
iii
TO
Q.
R.
S.
T.
U.
V.
GENERAL INFORMATION
ABOUT
CHORUS CLEAN ENERGY AG
CHORUS GROUP ......
182
I.
HISTORY
CHORUS GROUP ...........................................
182
II.
REGISTERED OFFICE, FINANCIAL YEAR, TERM, CORPORATE PURPOSE .........................
182
III.
GROUP STRUCTURE .........................................................................................
182
IV.
NOTICES, PAYING AGENT ..................................................................................
183
V.
INFORMATION CONCERNING SIGNIFICANT SUBSIDIARIES .............................................
183
DESCRIPTION
AND
OF
DEVELOPMENT
AND THE
SHARE CAPITAL
OF THE
RELATED INFORMATION ............................................
184
SHARES .............................................................................
184
SHARE CAPITAL ................................................................
184
AND
I.
SHARE CAPITAL
II.
DEVELOPMENT
III.
AUTHORIZATION
OTHER INSTRUMENTS ...................
184
IV.
AUTHORIZED CAPITAL .......................................................................................
185
V.
CONDITIONAL CAPITAL ......................................................................................
186
VI.
AUTHORIZATION
SELL TREASURY SHARES ......................................
187
VII.
STOCK OPTION PROGRAM .................................................................................
188
VIII.
GENERAL PROVISIONS GOVERNING ALLOCATION
DIVIDEND PAYMENTS ...
189
IX.
GENERAL PROVISIONS RELATING
COMPANY ............................
189
X.
GENERAL PROVISIONS GOVERNING CHANGES
SHARE CAPITAL ..........................
189
XI.
GENERAL PROVISIONS GOVERNING SUBSCRIPTION RIGHTS ........................................
190
XII.
EXCLUSION
190
XIII.
DISCLOSURE REQUIREMENTS
OF
AND
OF THE
TO ISSUE
TO
CONVERTIBLE BONDS
ACQUIRE
AND
TO
AND
OF
LIQUIDATION
PROFITS
OF THE
IN THE
AND
MINORITY SHAREHOLDERS .............................................................
TAKEOVER BIDS ......................
191
GOVERNING BODIES ........................................................................
194
I.
OVERVIEW .....................................................................................................
194
II.
MANAGEMENT BOARD .......................................................................................
195
III.
SUPERVISORY BOARD.......................................................................................
198
IV.
GENERAL SHAREHOLDERS’ MEETING ....................................................................
201
V.
CORPORATE GOVERNANCE ................................................................................
202
TAXATION ..............................................................................................................
204
I.
TAXATION
IN
GERMANY .....................................................................................
204
II.
TAXATION
IN
AUSTRIA .......................................................................................
214
UNDERWRITING .......................................................................................................
218
I.
COMMISSIONS ................................................................................................
218
II.
SECURITIES LOAN
GREENSHOE OPTION ..........................................................
218
III.
TERMINATION/INDEMNIFICATION ...........................................................................
219
IV.
SELLING RESTRICTIONS ....................................................................................
219
MANAGEMENT
AND
RECENT DEVELOPMENTS
AND
FOR
SHAREHOLDINGS
AND
OUTLOOK ........................................................................
R-1
W. GLOSSARY .............................................................................................................
G-1
X.
FINANCIAL INFORMATION ............................................................................................
F-1
Y.
SIGNATURE PAGE ....................................................................................................
S-1
AND
iv
SUMMARY
Summaries are made up of disclosure requirements known as ‘‘Elements’’. These Elements are
numbered in Sections A – E (A.1 – E.7). This summary (the ‘‘Summary’’) contains all the Elements
required to be included in a summary for this type of securities and issuer. Because some Elements are
not required to be addressed, there may be gaps in the numbering sequence of the Elements. Even
though an Element may be required to be inserted in the Summary because of the type of securities and
issuer, it is possible that no relevant information can be given regarding the Element. In this case, a short
description of the Element is included in the Summary with the mention of ‘‘not applicable’’.
SECTION A – INTRODUCTION
A.1
A.2
AND
WARNINGS
Warnings.
This Summary should be read as an introduction to this prospectus
(‘‘Prospectus’’). Any decision to invest in the securities should be
based on consideration of the Prospectus as a whole.
Where a claim relating to the information contained in the Prospectus is
brought before a court, the plaintiff investor might, under the national
legislation of the member states of the European Economic Area (the
‘‘Member States’’), have to bear the costs of translating the Prospectus,
before the legal proceedings are initiated.
CHORUS Clean Energy AG, Neubiberg (county of Munich), Germany
(the ‘‘Company’’ or the ‘‘Issuer’’ and together with the legal entities that
are fully consolidated in the Issuer’s consolidated financial statements,
‘‘we’’, ‘‘us’’, ‘‘our’’, ‘‘CHORUS’’ or the ‘‘CHORUS Group’’), along with
Joh. Berenberg, Gossler & Co. KG (‘‘Berenberg’’ or ‘‘Sole Global
Coordinator’’) and BHF-BANK Aktiengesellschaft (‘‘BHF-BANK’’, and
together with Berenberg, the ‘‘Joint Bookrunners’’ or the
‘‘Underwriters’’), assume responsibility for the content of this
Summary, including its German translation in accordance with
Section 5(2b) No. 4 of the German Securities Prospectus Act
(Wertpapierprospektgesetz). Those persons who are responsible for
the Summary, including the translation thereof, or for the issuing
(Veranlassung), can be held liable but only if the Summary is
misleading, inaccurate or inconsistent when read together with the other
parts of the Prospectus or if it does not provide, when read together with
the other parts of the Prospectus, all necessary key information.
Information regarding Not applicable. Consent of the Company regarding the use of the
the subsequent use of Prospectus for a subsequent resale or final placement of the Company’s
the Prospectus.
shares by financial intermediaries has not been granted.
SECTION B – ISSUER
B.1
B.2
B.3
Legal and commercial
name.
Domicile, legal form,
legislation under
which the issuer
operates, country of
incorporation.
The legal and commercial name of the Issuer is CHORUS Clean Energy
AG.
CHORUS Clean Energy AG has its registered seat in Neubiberg (county
of Munich), Germany, and is registered with the commercial register
(Handelsregister) maintained by the local court (Amtsgericht) of Munich,
Germany, under HRB 213342. The Company is a German stock
corporation (Aktiengesellschaft) incorporated under and governed by
the laws of the Federal Republic of Germany.
Current operations
CHORUS is an independent power producer and a full-service asset
and principal business manager with a long-standing focus on investments in renewable
activities and principal energy power facilities. In addition, CHORUS provides advisory and
markets in which the
asset management services to professional investors in the renewable
issuer competes.
energy sector. Since its specialization in the renewable energy field in
2006, CHORUS has initiated 21 German limited partnerships
(Kommanditgesellschaften) and three Luxembourg special investment
funds focused on the renewable energy sector, which, advised by
CHORUS, executed total investments in 67 solar and wind parks
located in Germany and other European countries with a total capacity
1
of 254 MW (solar parks: 151 MW; wind parks: 103 MW), representing a
total investment volume of approximately e673 million. Between 2009
and 2014, the total electricity generated per year by the solar and wind
parks managed and operated by CHORUS grew from 1.3 MWh in 2009
to 252,843 MWh in 2014. CHORUS owns and operates 62 of these
parks (the ‘‘CHORUS Portfolio’’) and manages and operates five wind
parks for the Luxembourg special investment funds initiated by it (the
‘‘Managed Portfolio’’). Following the acquisition of a solar or wind park
for its own portfolio or for professional funds and investors, CHORUS
provides operations and asset management services to the legal
entities owning the solar and wind parks.
As part of a recent reorganization of the CHORUS Group, the existing
portfolio of solar and wind parks formerly held by most of the German
limited partnerships together with the asset management and advisory
service companies have been transferred to the Issuer. CHORUS
believes to be one of the largest independent power producers and
full-service asset managers in the renewable energy sector in Germany,
measured by the cumulative capacity of the CHORUS Portfolio.
The business activities of CHORUS are divided into two business lines:
‘‘energy generation’’ and ‘‘asset management’’.
•
In its business line ‘‘energy generation’’, CHORUS acquires and
operates solar and wind parks in Europe, with a focus on Germany.
The CHORUS Portfolio produced a total of 219,249 MWh in the
financial year 2014—which is enough energy to meet the annual
energy needs of approximately 73,000 average German
two-person households1. CHORUS’ 57 solar parks generated
164,034 MWh and its five wind parks 55,214 MWh in 2014. In its
business line ‘‘energy generation’’, CHORUS will continue to invest
in renewable energy power facilities in European countries which it
believes to provide a reliable regulatory environment, with a
continued focus on solar and wind energy, but also regularly
assesses investment opportunities in other forms of proven
renewable energy technologies, such as hydro power or energy
storage systems.
•
In its business line ‘‘asset management’’, CHORUS initiates funds
for professional investors or (as part of its ‘Tailored Investment
Solutions’ services) tailors and structures other investments for
professional investors in the field of renewable energy against a fee
and provides operations services for existing power plants held by
professional investors. In April 2014, CHORUS received final
regulatory approval for the initiation of its first Luxembourg
regulated special investment fund, CHORUS Infrastructure
Fund S.A. SICAV-SIF (‘‘CHORUS SICAV-SIF’’), which aims at
acquiring a diversified portfolio of infrastructure assets, in particular
renewable energy parks, in selected European countries with a
current focus on Germany. Two sub-funds of CHORUS SICAV-SIF
have already invested their initially raised capital in 2014 by
acquiring wind parks with a total investment volume of more than
e150 million. A third sub-fund has recently been admitted by the
Luxembourg regulator and currently is in the process of distribution
to investors. In addition, in this ‘‘asset management’’ business line,
CHORUS provides its operations and asset management services
to the legal entities owning the parks of the CHORUS Portfolio and,
for a recurring remuneration, the Managed Portfolio.
1
Based on an average energy consumption of a German two-person household without electronic warm water preparation per year
of 3,000 KWh (Source: BDEW – Bundesverband der Energie- und Wasserwirtschaft e.V., Electricity Consumption in Private
Households, October 2013).
2
CHORUS believes that the following competitive strengths have driven
its value creation in the past and will continue to distinguish CHORUS in
the future from its competitors:
•
CHORUS has a large diversified portfolio of high quality solar and
onshore wind parks.
•
CHORUS applies a risk-reduced investment focus, and has broad
access to investment opportunities and a strong pipeline of
investment opportunities.
•
CHORUS has strong operations capacities.
•
CHORUS has excellent access to professional investors.
•
CHORUS generates steady and predictable cash flows through a
broad portfolio of solar and onshore wind parks.
•
CHORUS has an experienced management team and optimized
operations.
CHORUS strives to continue the profitable expansion of its current
portfolio of solar and wind parks through the acquisition of additional
facilities, to expand its fund initiation and investment structuring
activities for professional investors and to further develop its asset
management and advisory activities. CHORUS aims to achieve these
objectives by pursuing the following strategy:
•
CHORUS aims to extend its energy generation business through
the acquisition of new solar and wind parks.
•
CHORUS aims to expand its fund initiation activities and
investments for professional investors.
•
CHORUS intends to expand the asset management for renewable
energy parks of third parties.
•
CHORUS aims to assume the technical management for facilities.
CHORUS’ business is highly regulated and dependent on the
applicable regulatory framework in all countries where the CHORUS
Group currently operates. Government incentives are of particular
importance for energy generation from renewable energy sources and,
therefore, for CHORUS’ financial condition. Germany, for example,
aims to constantly and cost effectively increase the share of renewable
energy sources in the overall electricity supply to at least 80% in 2050
and provides certain financial incentives to promote electricity
generated from renewable energy sources. Since 2000, energy
generation from renewable sources in Germany has been promoted by
the Renewable Energy Sources Act (Erneuerbare Energien Gesetz –
‘‘EEG’’), which initially granted certain fixed feed-in-tariffs as an abovemarket payment by the grid operator to the producer of such electricity,
accompanied by obligations of the relevant grid operator to connect
facilities that generate electricity from renewable energy sources to the
grid and to feed the electricity generated by such facility into its grid. In
its latest amendment of the EEG, Germany has recently replaced the
fixed feed-in tariffs by a system of compulsory direct marketing of the
renewable energy generated combined with the payment of a so-called
‘‘market premium’’. Under this direct marketing system, the operator of a
renewable energy facility channels its electricity ‘‘unpromoted’’ through
the public grid and sells it, based on energy supply agreements, to
intermediaries or directly at the electricity power exchange. As a
subsidization, in addition to the market sales price, the facility operator
receives a market premium from the grid operator if certain conditions
are met.
In Italy, for example, electricity generated from renewable energy
sources historically has been promoted through a number of incentive
schemes, providing for guaranteed payments for solar facilities or
feed-in tariffs. However, in 2014, the Italian legislator decided to reduce
3
the promotion for solar facilities with retrospective effect for facilities that
had already entered into operation.
Other European countries, in which the CHORUS Group operates,
promote renewable energy in similar ways.
The European landscape for renewable energy has changed over the
past years and has seen a considerable expansion of solar and wind
energy. With regard to the targets set by the European Commission for
the proportion of electricity to come from renewable energy in 2020,
there is a great need for further development and growth of the
renewable energy sector. Whereas few countries in Europe, such as
Germany and Italy, have taken the lead in the solar and wind sector for
the past years, other countries have to catch up rapidly in order to meet
the set targets. (Source: Eurostat, ‘‘Share of renewable energy in gross
final energy consumption’’)
In Germany, the most important market in Europe for CHORUS, the
2014 share of renewable energy of the gross electricity generation was,
according to figures published by the Arbeitsgemeinschaft
Energiebilanzen e.V., at approximately 27.8%. Although in 2013 for the
first time in years, the newly installed photovoltaic capacity in Germany
decreased, Germany was still the top European photovoltaic market.
(Source: European Photovoltaic Industry Association – ‘‘EPIA’’ Global
Market Outlook For Photovoltaics 2014-2018) The German wind power
industry had an exceptional year in 2014. (Source: Global Wind Energy
Council – GWEC, ‘‘Global Wind Report Annual Market Update 2014’’)
B.4a Most significant recent
trends affecting the
issuer and the
industries in which it
operates.
B.5
CHORUS expects that the targets agreed at the European Union (EU)
summit in Brussels on climate policy in October 2014 on greenhouse
gas emissions reduction, improving energy efficiency and the increase
of the share of renewable energy will have a positive impact on the
promotion of renewable energy under the different legal frameworks
within the EU. Apart from that, CHORUS is affected by the recent
changes within the legal frameworks governing the promotion of
renewable energies in the countries in which it operates, most notably in
Germany by the most recent amendments of the EEG in August 1, 2014
and in Italy by the reduction with retrospective effect in 2014 of the
promotion granted for solar facilities that had already entered into
operation.
Description of the
The Company is the parent entity of the CHORUS Group. The following
group and the issuer’s chart provides an overview (in simplified form) of the CHORUS Group
position within the
as of the date of this Prospectus:
group.
4
CHORUS Clean Energy AG
*
German Solar and
Wind Operations **
100%
CHORUS Vertriebs
GmbH
100%
100%
100%
100%
Italian Solar
Operations **
French Wind
Operations **
Austrian Wind
Operations **
100%
100%
100%
CHORUS
CleanTech
Management GmbH
CHORUS Clean
Energy Advisor
GmbH
CHORUS Clean Energy
Assetmanagement
GmbH
CHORUS Clean
Energy Invest
GmbH
100%
CHORUS GmbH
40%
CHORUS Clean
Energy Verwaltungs
GmbH
100%
Several purely
administrative companies
(Germany)
15JUN201510051285
*
CHORUS does not hold a 100% participation in four of its total of 26 SPVs operating solar parks in Germany; the remaining
solar parks each are all wholly-owned. In addition, CHORUS owns three wind parks in Germany (100%).
**
The solar and wind operations mentioned are organized in all of Germany, Italy (solar only), France and Austria (both wind
only) through SPVS directly or held by the Company on these countries, and which SPVs directly own the solar and wind
parks.
B.6
Persons who, directly
or indirectly, have a
(notifiable) interest in
the issuer’s capital or
voting rights.
According to voting right notifications received and the knowledge of the
Issuer, the following entities hold a major interest in the Issuer as of the
date of this Prospectus:
PELABA Anlagenverwaltungs GmbH & Co. KG and PELABA
Ökofinanz GmbH(1) ........................................................................... 20.73%
Management Board members(2) ........................................................... 2.44%
CHORUS CleanTech Solar GmbH & Co. 8. KG(3) ................................... 4.32%
Other Fund KGs(4) ............................................................................ 12.00%
Former Fund KG shareholders(5) .......................................................... 60.50%
Total .............................................................................................
100%
(1)
PELABA Anlagenverwaltungs GmbH & Co. KG and PELABA Ökofinanz GmbH both
are companies affiliated with the chairman of the Supervisory Board, Peter
Heidecker, which is why he is an indirect shareholder of the Company. PELABA
Anlagenverwaltungs GmbH & Co. KG holds a total of 3,598,388 shares in the
Company, and PELABA Ökofinanz GmbH indirectly holds a total of 18,597 shares in
the Company.
(2)
Of the total of 426,392 shares (or 2.44% of the share capital prior to the Offering)
held by the members of the Management Board, Holger Götze holds 3,362 shares
(or 0.02% of the share capital prior to the Offering), Heinz Jarothe holds 419,721
shares (or 2.41% of the share capital prior to the Offering) and Helmut Horst holds
3,309 shares (or 0.02% of the share capital prior to the Offering). The members of
the Management Board have informed the Company that they do not intend to
subscribe or acquire shares as part of the Offering.
(3)
CHORUS CleanTech Solar GmbH & Co. 8. KG is a German limited partnership
set-up by CHORUS as a fund (Fund KG, as defined below under C.1). The figure
shown for CHORUS CleanTech Solar GmbH & Co. 8. KG prior to the Offering also
includes 350,998 of the Offered Existing Shares (as defined below under C.1), which
are indirectly held by Selling Shareholders (as defined below under C.1) through
their participation in CHORUS CleanTech Solar GmbH & Co. 8. KG.
(4)
Other Fund KGs includes the remaining Fund KGs (as defined below under C.1)
holding less than 3% of the shares in the Company prior to the Offering. This
includes a total of 386,386 of the Offered Existing Shares (as defined below under
C.1) indirectly held by Selling Shareholders (as defined below under C.1) through
their participation in the respective Fund KGs (as defined below under C.1).
(5)
Prior to the date of this Prospectus, all Fund KGs (as defined below under C.1)
holding shares in the Company transferred large parts of the shares held in the
Company to their fund shareholders as a distribution in kind, so that such former
5
Fund KG shareholders became direct shareholders of the Company and ceased
being fund shareholders. These former Fund KG shareholders are not bound by a
lock-up obligations regarding their shares in the Company. As per June 15, 2015, a
total of 10,556,805 shares of the Company (or 60.50% of the Company’s share
capital) were distributed to former Fund KG shareholders this way across all Fund
KGs (taking into account failed distributions until that point in time). Post such share
distribution, no individual former fund shareholder holds more than 3% in the share
capital in the Company.
Voting rights.
Direct or indirect
control over the issuer
and nature of such
control.
B.7
Each Company’s share carries one vote at the Company’s
shareholders’ meeting. There are no restrictions on voting rights. All
shares have identical voting rights.
Not applicable (no control).
Selected key historical The financial information contained in the following tables is taken from
financial information.
the audited combined financial statements of the Company as of and for
the short financial year ended December 17, 2014 and the financial
years ended December 31, 2013 and 2012 (together, the ‘‘Combined
Financial Statements’’), the audited consolidated financial statements
of the Company as of and for the financial year ended December 31,
2014 including comparative figures for the financial year ended
December 31, 2013 (the ‘‘Consolidated Financial Statements 2014’’)
as well as the unaudited interim condensed consolidated financial
statements of the Company for the three months ended March 31, 2015
(the ‘‘Unaudited Interim Condensed Consolidated Financial
Statements’’). The Combined Financial Statements and the
Consolidated Financial Statements 2014 have been prepared in
accordance with International Financial Reporting Standards as
adopted in the European Union (‘‘IFRS’’) and have been audited in
accordance with Section 317 of the German Commercial Code
(Handelsgesetzbuch) and German generally accepted standards for the
audit of financial statements, which are promulgated by the Institute of
Public Auditors in Germany (Institut der Wirtschaftsprüfer), by KPMG
AG Wirtschaftsprüfungsgesellschaft, Munich, Germany, who issued on
each an unqualified audit opinion. The Unaudited Interim Condensed
Consolidated Financial Statements have been prepared in accordance
with IFRS as adopted by the EU for interim financial reporting (IAS 34).
Each of the Combined Financial Statements, the Consolidated
Financial Statements 2014 and the Unaudited Interim Condensed
Consolidated Financial Statements (together, the ‘‘Financial
Statements’’) was prepared on the basis of the nature of expense
method.
The Combined Financial Statements were prepared on the basis of the
‘‘common management’’ approach in accordance with the working
paper of the Fédération des Experts Comptables Européens (FEE)
dated February 2013. While the financial information used in the
preparation of the Combined Financial Statements is effectively
equivalent to the financial information as of and for the full twelve-month
period ending December 31, 2014, common management ceased to
exist upon the first contribution of the holding and operating entities to
the Company becoming effective on December 17, 2014. Therefore, the
financial information in the Combined Financial Statements for the
financial year 2014 is formally specified as of and for the short financial
year ended December 17, 2014 and does not reflect the effects of the
contribution of the holding and operating entities to the Company. In
addition, the Consolidated Financial Statements 2014 included in this
Prospectus only present financial information on the Issuer,
CHORUS GmbH and CHORUS GmbH’s subsidiaries but do not include
6
the net assets, results of operations and cash flows of the 74 contributed
holding and operating entities holding the solar and wind parks until the
contribution occurred in December 2014. As the consolidated financial
position of the Company is based on the book value of the assets in the
Combined Financial Statements, a comparison with the consolidated
financial position as set forth in the Consolidated Financial Statements
2014 may be of limited value. Furthermore, the comparability of the
consolidated interim statement of profit or loss and other
comprehensive income for the three months ended March 31, 2014 and
2015 contained in the Unaudited Interim Condensed Consolidated
Financial Statements is limited since the 74 holding and operating
companies, including the solar parks and wind parks, were contributed
in December 2014. Therefore, they are not reflected in the results of
operation for the three-month period ended March 31, 2014. For this
period in 2014, the financial information only includes the financial
information of CHORUS GmbH and its subsidiaries.
SELECTED FINANCIAL DATA
Combined Income Statement
The table below sets forth selected financial data from our combined
income statement for the short financial year ended December 17, 2014
and the financial years ended December 31, 2013 and 2012:
For the short
financial year
ended
December 17,
2014
Revenues ..............................
Other income .........................
Personnel expenses ................
Other expenses ......................
Earnings before interest, tax,
depreciation and amortization
(EBITDA) ..............................
Depreciation and amortization....
Profit before interest and tax
(EBIT) ..................................
Results of financial investments
accounted for at equity.............
Finance income ......................
Finance expenses ...................
Valuation of interest rate swaps .
Net financial result ................
Profit before tax ....................
Income tax expense ................
Profit for the year/Total
comprehensive income ..........
7
54,983
1,932
(2,149)
(12,036)
For the
For the
financial year
financial year
ended
ended
December 31,
December 31,
2013
2012
(in g thousands)
(audited)
49,657
43,748
3,417
5,206
(2,117)
(2,382)
(12,828)
(12,915)
42,730
(17,752)
38,129
(21,110)
33,657
(13,673)
24,978
17,019
19,984
570
(15,546)
(5,660)
(20,636)
4,342
(612)
(30)
202
(17,292)
2,443
(14,677)
2,342
(1,435)
(30)
318
(16,035)
(3,452)
(19,199)
785
(121)
3,730
907
664
Combined Statement of Financial Position
The table below sets forth selected financial data from our combined
statement of financial position as of December 17, 2014 and as of
December 31, 2013 and 2012:
As of
December 17,
2014
ASSETS
Non-current Assets................
Intangible assets .....................
Property, plant and equipment ...
Financial investments at equity ..
Non-current financial assets ......
Non-current non-financial assets
Deferred tax assets .................
Current Assets ......................
Trade and other receivables ......
Receivables against
shareholders ..........................
Income taxes receivable ...........
Current financial assets ............
Current non-financial assets ......
Liquid funds .........................
Total Assets .........................
NET ASSETS AND
LIABILITIES
Total net assets ....................
Non-current Liabilities............
Liabilities to limited partners ......
Non-current provisions .............
Non-current financial liabilities....
Deferred tax liabilities ..............
Current Liabilities ..................
Current provisions ...................
Trade payables.......................
Income taxes payable ..............
Current financial liabilities .........
Other current liabilities .............
Liabilities to shareholders .........
Deferred income .....................
Total Net Assets and
Liabilities .............................
As of
As of
December 31,
December 31,
2013
2012
(in g thousands)
(audited)
401,471
230
387,144
480
4,374
6,614
2,629
409,034
173
395,877
200
3,583
7,002
2,199
367,071
15
353,432
229
3,839
6,937
2,619
47,722
6,420
54,609
6,626
54,646
7,152
827
1,327
7,592
31,556
449,193
1,518
831
7,472
5,276
32,886
463,643
319
424
1,726
5,796
39,229
421,717
61,803
316,548
4,034
3,311
307,883
1,320
70,842
1,328
4,771
374
21,567
3,363
38,659
780
61,600
323,585
3,724
2,222
316,936
703
78,458
374
6,720
168
21,491
1,642
47,272
791
61,046
295,919
3,552
2,255
289,609
503
64,752
316
7,198
86
23,700
3,133
29,698
621
449,193
463,643
421,717
Combined Statement of Cash Flows
The table below sets forth selected financial data from our combined
statement of cash flows for the short financial year ended December 17,
2014 and as of and for the financial years ended December 31, 2013
and 2012:
For the short
financial year
ended
December 17,
2014
Cash Flow from Operating
Activities ..............................
Cash Flow from Investing
Activities ..............................
Cash Flow from Financing
Activities ..............................
Cash and cash equivalents at
beginning of period..................
Cash and cash equivalents at
end of period .........................
8
For the
For the
financial year
financial year
ended
ended
December 31,
December 31,
2013
2012
(in g thousands)
(audited)
39,525
37,028
32,271
(3,014)
(1,370)
(4,382)
(40,501)
(46,409)
(15,694)
19,455
30,204
18,010
15,465
19,455
30,204
Consolidated Income Statement
The table below sets forth selected financial data from our consolidated
income statement for the financial years ended December 31, 2014
(including comparative figures for the financial year ended
December 31, 2013) and the three months ended March 31, 2015
(including comparative figures for the three months ended March 31,
2014):
Revenues..............
Other income .........
Personnel expenses
Other expenses ......
Profit (Loss)
before interest,
tax, depreciation
and amortization
(EBITDA) ..............
Depreciation and
amortization ...........
Profit (Loss)
before interest and
tax (EBIT) .............
Results of financial
investments
accounted for at
equity ...................
Finance income ......
Finance expenses ...
Valuation of
interest-rate swaps ..
Net financial result
Profit (Loss)
before tax.............
Income tax ............
Profit (Loss) for
the period / Total
comprehensive
income (loss) ........
Profit (Loss)
attributable to the
owners of
CHORUS Clean
Energy AG ...........
Profit attributable
to non-controlling
interests...............
For the
For the
For the three For the three
financial year financial year
months
months
ended
ended
ended
ended
December 31, December 31,
March 31,
March 31,
2014
2013
2015
2014
(in g thousands)
(audited)
(unaudited)
3,349
3,574
12,365
267
930
294
505
83
(2,149)
(2,117)
(559)
(504)
(3,419)
(951)
(4,467)
(178)
(1,289)
800
7,844
(332)
(47)
(5,479)
(15)
753
2,365
(347)
4
269
(141)
0
110
(80)
152
(2,255)
0
(65)
132
30
(192)
(2,295)
(65)
(74)
(1,363)
(1,231)
(359)
783
(188)
70
(498)
(412)
106
(1,590)
595
(428)
(306)
(1,598)
595
(428)
(306)
8
9
0
-
-
Consolidated Statement of Financial Position
The table below sets forth selected financial data from our consolidated
statement of financial position as of December 31, 2014 (with
comparative figures as of December 31, 2013) and March 31, 2015:
As of
December 31,
2014
As of
December 31,
2013
(in g thousands)
(audited)
(unaudited)
457,343
181,149
252,521
480
4,374
18,819
51,961
6,420
826
1,327
6,098
37,290
509,304
260
173
23
58
6
9,390
1,974
654
5,896
866
9,650
452,450
178,483
250,204
541
4,712
18,510
50,410
9,014
402
4,792
7,697
28,505
502,860
50
2,269
250
25
3,873
17,449
103,663
144
1,840
5,855
-
-
115,645
-
-
123,819
25
350,108
35,352
509,304
4,148
11
4
5,487
9,650
123,096
25
343,002
36,737
502,860
(audited)
ASSETS
Non-current Assets ...................
Intangible assets and goodwill ......
Property, plant and equipment ......
Financial investments at equity......
Non-current financial assets .........
Deferred tax assets ....................
Current Assets .........................
Trade and other receivables .........
Income taxes receivable ..............
Current financial assets ...............
Current non-financial assets .........
Liquid funds ..............................
Total Assets.............................
EQUITY AND LIABILITIES
Equity
Share capital .............................
Capital reserve ..........................
Fair value reserve ......................
Retained earnings ......................
Contributions in-cash not yet
registered .................................
Contributions in-kind not yet
registered .................................
Equity attributable to the owners
of CHORUS Clean Energy AG ....
Non-controlling interests ..............
Non-current liabilities ................
Current liabilities ......................
Total Equity and Liabilities ........
As of
March 31,
2015
Consolidated Statement of Cash Flows
The table below sets forth selected financial data from our consolidated
statement of cash flows for the financial years ended December 31,
2014 (including comparative figures for the financial year ended
December 31, 2013) and the three months ended March 31, 2015
(including comparative figures for the three months ended March 31,
2014):
For the
For the
For the three For the three
financial year financial year
months
months
ended
ended
ended
ended
December 31, December 31,
March 31,
March 31,
2014
2013
2015
2014
(in g thousands)
(audited)
(unaudited)
Cash Flow from
Operating
Activities ..............
Cash Flow from
Investing Activities
Cash Flow from
Financing
Activities ..............
Cash and cash
equivalents at
beginning of period .
Cash and cash
equivalents at end
of period ...............
10
4,528
(6,608)
14,638
(140)
4,354
(3,847)
219
(1)
1,168
4,422
(7,770)
228
866
3,191
21,199
866
21,199
866
13,935
1,312
Significant changes to
the issuer’s financial
condition and
operating results
during and
subsequent to the
period covered by the
historical key financial
information.
Since March 31, 2015 until the date of this Prospectus, there have been
no significant changes to the financial condition and results of
operations of the Company. The following changes in our financial
condition and our operating results, as shown on the basis of revenues
and results from operations occurred in the three-month periods ended
March 31, 2015 and 2014 (on a consolidated basis), in the short
financial year ended December 17, 2014 and the financial years ended
December 31, 2013 and 2012 (on a combined basis) and in the financial
year ended December 31, 2014 (on a consolidated basis):
Three-Month Periods Ended March 31, 2015 and 2014
Total revenues increased from e267 thousand in the three months
ended March 31, 2014 to e12,365 thousand in the three months ended
March 31, 2015. The increase is attributable to the 74 holding and
operating companies contributed by various German limited
partnerships into the Company as part of the reorganization of the
CHORUS Group in December 2014. Electricity revenues increased to
e10,210 thousand in the three months ended March 31, 2015. No
electricity revenues were recorded in the three months ended March 31,
2014. Asset management revenues increased by e1,888 thousand from
e267 thousand in the three months ended March 31, 2014 to
e2,155 thousand in the three months ended March 31, 2015. EBITDA
increased from negative EBITDA of e332 thousand in the three months
ended March 31, 2014 to positive EBITDA of e7,844 thousand in the
three months ended March 31, 2015 due to the increase in revenues
described above.
Non-current assets decreased by e4,893 thousand, or 1.1%, from
e457,343 thousand at December 31, 2014 to e452,450 thousand at
March 31, 2015. Current assets decreased by e1,551 thousand, or
3.0%, from e51,961 thousand at December 31, 2014 to
e50,410 thousand at March 31, 2015. Non-current liabilities decreased
by e7,106 thousand, or 2.0%, from e350,108 thousand at December 31,
2014 to e343,002 thousand at March 31, 2015. Current liabilities
increased by e1,385 thousand, or 3.9%, from e35,352 thousand at
December 31, 2014 to e36,737 thousand at March 31, 2015.
Short Financial Year Ended December 17, 2014 and Financial Years
Ended December 31, 2013 and 2012 based on the Combined Financial
Statements
Total revenues increased by e5,326 thousand, or 10.7%, from
e49,657 thousand in the financial year ended December 31, 2013 to
e54,983 thousand in the short financial year ended December 17, 2014.
Electricity generation revenues increased by e5,150 thousand, or
10.6%, from e48,814 thousand in the financial year ended
December 31, 2013 to e53,964 thousand in the short financial year
ended December 17, 2014. This increase was primarily a result of
higher revenues generated from the sale of electricity in Germany and
Austria, which increased by e4,450 thousand and e1,097 thousand,
respectively, in the financial year ended December 31, 2013 compared
to the short financial year ended December 17, 2014. Asset
management revenues increased by e176 thousand, or 20.9%, from
e843 thousand in the financial year ended December 31, 2013 to
e1,019 thousand in the short financial year ended December 17, 2014.
This increase was a result of additional fees generated in Germany.
EBITDA increased by e4,601 thousand, or 12.1%, from
e38,129 thousand in the financial year ended December 31, 2013 to
e42,730 thousand in the short financial year ended December 17, 2014
due to the increase in revenues described above and overall decreases
in personnel expenses and other expenses.
11
Total revenues increased by e5,909 thousand, or 13.5%, from
e43,748 thousand in the financial year ended December 31, 2012 to
e49,657 thousand in the financial year ended December 31, 2013.
Electricity generation revenues increased by e6,118 thousand, or
14.3%, from e42,696 thousand in the financial year ended
December 31, 2012 to e48,814 thousand in the financial year ended
December 31, 2013. This increase was primarily a result of higher
electricity generation revenues from our operations in Italy and, to a
lesser extent, Germany and first time electricity generation revenues
generated from our operations in France and Austria. Asset
management revenues decreased by e209 thousand from
e1,052 thousand in the financial year ended December 31, 2012 to
e843 thousand in the financial year ended December 31, 2013. EBITDA
increased by e4,472 thousand, or 13.3%, from e33,657 thousand in the
financial year ended December 31, 2012 to e38,129 thousand in the
financial year ended December 31, 2013 due to the increase in
revenues described above and the slight decreases in personnel
expenses and other expenses.
Non-current assets decreased by e7,563 thousand, or 1.8%, from
e409,034 thousand at December 31, 2013 to e401,471 thousand at
December 17, 2014. Current assets decreased by e6,887 thousand, or
12.6%, from e54,609 thousand at December 31, 2013 to
e47,722 thousand at December 17, 2014. Non-current liabilities
decreased by e7,037 thousand, or 2.2%, from e323,585 thousand at
December 31, 2013 to e316,548 thousand at December 17, 2014.
Current liabilities decreased by e7,616 thousand, or 9.7%, from
e78,458 thousand at December 31, 2013 to e70,842 thousand at
December 17, 2014.
Financial Year Ended December 31, 2014 and Financial Year Ended
December 31, 2013 based on the Consolidated Financial Statements
2014
Revenues decreased by e225 thousand, or 6.3%, from
e3,574 thousand in the financial year ended December 31, 2013 to
e3,349 thousand in the financial year ended December 31, 2014.
EBITDA decreased by e2,089 thousand from e800 thousand in the
financial year ended December 31, 2013 to negative e1,289 thousand in
the financial year ended December 31, 2014. The decrease was
primarily due to a significant increase in other expenses, which
increased from e951 thousand in the financial year ended
December 31, 2013 to e3,419 thousand in the financial year ended
December 31, 2014, as a result of higher administrative expenses
related to the Reorganization of the CHORUS Group. The decrease in
EBITDA was only partly offset by an increase in other income, which
increased from e294 thousand in the financial year ended
December 31, 2013 to e930 thousand in the financial year ended
December 31, 2014.
Non-current assets increased by e457,083 thousand, from
e260 thousand at December 31, 2013 to e457,343 thousand at
December 31, 2014. Current assets increased by e42,571 thousand
from e9,390 thousand at December 31, 2013 to e51,961 thousand at
December 31, 2014. Non-current liabilities increased by
e350,104 thousand from e4 thousand at December 31, 2013 to
e350,108 thousand at December 31, 2014. Current liabilities increased
by e29,865 thousand from e5,487 thousand at December 31, 2013 to
e35,352 thousand at December 31, 2014.
Recent Developments
The first five months of 2015 have developed in line with management’s
expectations. The ‘‘energy generation’’ business line did not execute
any new investments, but its cash flow generation was stable. The
12
‘‘asset management’’ business line continued its moderate revenue
growth and further increased its earnings.
No significant change in our financial or trading position has occurred
since March 31, 2015.
B.8
Selected key pro
forma financial
information.
The following selected key pro forma consolidated financial information
was taken from the pro forma consolidated financial information
prepared by the Company for the purpose of this Prospectus,
comprising a pro forma consolidated income statement for the year
ended December 31, 2014 and pro forma notes (together, the
‘‘Pro Forma Consolidated Financial Information’’).
The purpose of the Pro Forma Consolidated Financial Information is to
show the material effects that the acquisition and integration of
CHORUS GmbH and its direct and indirect subsidiaries and a further 74
holding and operating entities into the CHORUS Group would have had
on the results of operations of the CHORUS Group if the CHORUS
Group had already existed in the structure created by such acquisitions
as of January 1, 2014.
The presentation of the Pro Forma Consolidated Financial Information
is based on certain pro forma assumptions and is intended for
illustrative purposes only. The Pro Forma Consolidated Income
Statement assumes, in particular, that the contributions had taken place
on January 1, 2014 for purposes of the pro forma consolidated income
statement of the Company for the period from January 1, 2014 to
December 31, 2014.
Therefore, the Pro Forma Consolidated Financial Information describes
only a hypothetical situation and thus, due to its nature, the presentation
does not reflect the results of operations of the CHORUS Group after
closing of the various acquisitions. In addition, the Pro Forma
Consolidated Financial Information does not represent a forecast of the
results of operations of the CHORUS Group at a future time.
Pro Forma Consolidated Income Statement for the Period from
January 1, 2014 to December 31, 2014
The following table summarizes the adjustments to the historical
financial information of the original CHORUS GmbH group for the period
from January 1, 2014 to December 31, 2014:
January 1 to December 31,
2014
(in g thousands)
B.9
Profit forecast or
estimate.
Original
CHORUS
GmbH
Group and Operating and
CHORUS AG Holding SPVs
Revenues ..........................
Other income .....................
Personnel expenses.............
3,349
930
(2,149)
Other expenses ..................
Depreciation and amortization
Operating income ..............
Finance income ..................
Finance costs .....................
Net financial income/
(expense) .........................
Profit/(loss) before tax ........
Income tax ........................
Profit/(loss) after taxes for
the year ...........................
Sum
57,424
2,420
(2,149)
(2,441)
(489)
0
2,850
715
54,983
1,931
(2,149)
(3,419)
(74)
(1,363)
273
(11,467) (14,886)
(17,678) (17,752)
26,420 25,057
2,082
2,355
3,565
(2,607)
(1,972)
(1,785)
193
5,419
(11,321)
(20,359)
23,085
570
(141)
(21,257) (21,398)
5,612
(15,786)
132
(1,231)
(359)
(19,175) (19,043)
7,245
6,014
(732) (1,091)
3,827
1,855
(1,840)
(15,216)
7,869
(2,931)
(1,590)
54,075
1,490
0
New
Pro forma CHORUS
adjustments
Group
6,513
4,923
15
4,938
Not applicable. The Company has not published any profit forecast or
estimate.
13
B.10 Qualifications in the
audit report on the
historical financial
information.
B.11 Insufficiency of the
issuer’s working
capital for its present
requirements.
Not applicable. The audit reports on the historical financial information
included in this Prospectus have been issued without qualifications.
Not applicable. The Company believes that its working capital is
sufficient for the present requirements of CHORUS, that is, for at least
12 months following the date of this Prospectus.
SECTION C – SECURITIES
C.1
Type and the class of
the securities being
offered and/or
admitted to trading.
The offering (the ‘‘Offering’’) relates to a total of 14,647,312 ordinary
non-par value bearer shares (Stückaktien) in the Company, each such
share with a notional value of e1.00 in the share capital and entitlement
to full dividend rights for the year starting January 1, 2015, comprising:
•
12,000,000 newly issued ordinary non-par value bearer shares
from a capital increase against contribution in cash resolved by the
extraordinary general shareholders’ meeting on May 20, 2015 with
exclusion of subscription rights for existing shareholders (‘‘New
Shares’’),
•
737,384 existing ordinary bearer shares from the holdings of a total
of 80 shareholders in 13 German limited partnerships2 set-up by
CHORUS as funds (the ‘‘Fund KGs’’), who will become direct
shareholders of the Company prior to completion of the Offering
through transfer and distribution in kind of the Offered Existing
Shares currently still held by the above Fund KGs to them (each of
these Fund KG shareholders, individually, a ‘‘Selling
Shareholder’’ and, together, the ‘‘Selling Shareholders’’, and the
shares offered by the Selling Shareholders in the Offering, the
‘‘Offered Existing Shares’’),
•
1,909,928 ordinary non-par value bearer shares from the holdings
of CHORUS CleanTech Solar GmbH & Co. KG, CHORUS
CleanTech Solar GmbH & Co. 2. KG, CHORUS CleanTech
Solar GmbH & Co. 3. KG, CHORUS CleanTech Solar GmbH & Co.
4. KG, CHORUS CleanTech Solar GmbH & Co. 5. KG, CHORUS
CleanTech Solar GmbH & Co. 6. KG, CHORUS CleanTech
Solar GmbH & Co. 7. KG, CHORUS CleanTech Solar GmbH & Co.
8. KG, CHORUS CleanTech Solar PP GmbH & Co. 3. KG,
CHORUS CleanTech Solar PP GmbH & Co. 4. KG, CHORUS
CleanTech Solar PP GmbH & Co. 5. KG, CHORUS CleanTech
Wind PP GmbH & Co. 6. KG, CHORUS CleanTech Wind
PP GmbH & Co. 7. KG, CHORUS CleanTech Wind
PP GmbH & Co. 9. KG, CHORUS CleanTech Solar
PP GmbH & Co. 12. KG, CHORUS CleanTech Wind GmbH & Co.
10. KG, CHORUS CleanTech Wind GmbH & Co. 11. KG, CHORUS
CleanTech Portfolio GmbH & Co. KG, CHORUS Equity
CleanTech GmbH & Co. KG and CHORUS Equity
CleanTech GmbH & Co. 2. KG (all of these shareholders, together,
in this capacity, the ‘‘Lending Shareholders’’) to cover potential
over-allotments (the ‘‘Over-Allotment Shares’’, and together with
the New Shares and the Offered Existing Shares, the ‘‘Offer
Shares’’).
2
Namely: CHORUS CleanTech Solar GmbH & Co. KG, CHORUS CleanTech Solar GmbH & Co. 2. KG, CHORUS CleanTech
Solar GmbH & Co. 3. KG, CHORUS CleanTech Solar GmbH & Co. 4. KG, CHORUS CleanTech Solar GmbH & Co. 6. KG,
CHORUS CleanTech Solar GmbH & Co. 7. KG, CHORUS CleanTech Solar GmbH & Co. 8. KG, CHORUS CleanTech
Wind GmbH & Co. 10. KG, CHORUS CleanTech Wind GmbH & Co. 11. KG, CHORUS CleanTech Wind PP GmbH & Co. 9. KG,
CHORUS Equity CleanTech GmbH & Co. 2. KG, CHORUS CleanTech Solar PP GmbH & Co. 5. KG and CHORUS CleanTech
Solar PP GmbH & Co. 13. KG.
14
C.2
C.3
C.4
C.5
C.6
C.7
The admission to trading on the regulated market (regulierter Markt) of
the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse) (Prime
Standard) relates to up to 12,000,000 New Shares and 17,448,539
existing bearer shares of the Company (existing share capital), each
with a notional value of e1.00 in the share capital and entitlement to full
dividend rights for the year starting January 1, 2015.
Security identification International Securities Identification Number (ISIN): DE000A12UL56
number.
German Securities Identification Number (WKN): A12UL5
Common Code: 122487342
Trading Symbol: CU1
Currency.
Euro.
The number of shares At the date of this Prospectus, 17,448,539 ordinary shares with no-par
issued and fully paid. value (Stückaktien) have been issued and are fully paid up.
The Company’s shares will be represented by several global share
certificates (the ‘‘Global Share Certificates’’), which have been and will
be deposited with Clearstream Banking Aktiengesellschaft,
Mergenthalerallee 61, 65760 Eschborn, Germany.
Par value per share.
Each Company’s share represents a notional share of e1.00 in the
Company’s share capital.
A description of the
Each share of the Company entitles the shareholder to one vote at the
rights attached to the Company’s general shareholders’ meeting. The Offer Shares carry full
securities.
dividend rights for the year starting January 1, 2015 and for all
subsequent financial years.
A description of any
Not applicable. There are no restrictions on the free transferability of the
restrictions on the free shares of the Company.
transferability of the
securities.
Application for
The Company will apply for admission of the New Shares and its
admission to trading
existing shares to the regulated market segment (regulierter Markt) at
on a regulated market the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse) and,
and the identity of
simultaneously, to the sub-segment thereof with additional
regulated markets
post-admission obligations (Prime Standard) on or about June 22,
where the securities
2015. The Company expects the listing approval for the Company’s
are to be traded.
shares to be granted on or about July 2, 2015. Trading in the Company’s
shares is planned to commence on July 3, 2015.
In the event of the issuance of additional shares in the Company pursuant
to the exercise of the Greenshoe Option (as defined below in E.3), the
Company will also apply for the admission of such additional shares to
trading on the regulated market segment (regulierter Markt) of the Frankfurt
Stock Exchange and, simultaneously, to the sub-segment thereof with
additional post-admission obligations (Prime Standard). Such admission
will be applied for on the basis of the exemption from the requirement to
publish a prospectus pursuant to Section 4 para. 2 no. 1 of the German
Securities Prospectus Act (Wertpapierprospektgesetz).
Dividend policy.
For the fiscal years from 2015 onwards, the Company aims to distribute
a stable annual dividend at least comparable to its industry peers and
representing a significant portion of its annual distributable profits. Since
the Issuer conducts a substantial part of its operations through its direct
and indirect subsidiaries, its ability to pay dividends depends
significantly on its operating subsidiaries generating profits and
distributing them to the Issuer.
SECTION D – RISKS
D.1
Key risks specific to
the issuer and its
industry.
Risks Related to Regulation
•
The business operations of CHORUS depend on governmental
15
incentives for renewable energy sources.
•
A delayed start of operation of facilities, or delays in the completion
of their construction, or overly intensive capacity expansion could
result in a lower compensation for electricity fed into the grid or no
compensation at all due to degression.
•
To receive subsidizations for renewable electricity, CHORUS may
need to fulfil further requirements or may be exposed to altering
requirements regarding size of facilities and maximum capacity.
•
Governmental approvals and local development plans for
renewable energy projects could be challenged.
•
Failures to fulfil or comply with the requirements of governmental
permits for the operation of renewable energy facilities may result in
the withdrawal of governmental permits, and permits may be limited
in scope and may contain shutdown obligations or other conditions
and limitations which need to be fulfilled by CHORUS.
•
The business of CHORUS is regulated by several laws and can be
affected by any changes in the legal framework, which may result in
additional expenses to be incurred.
Risks Related to the Market and the Business of the CHORUS
Group
•
The performance and the successful operation of CHORUS’ solar
and wind parks depends on prevailing weather and the climatic
conditions as well as on the location of the respective facilities.
•
CHORUS may be unable to find and secure suitable investment
opportunities in solar and wind parks (or related operating
companies).
•
Acquisitions of solar and wind parks (or related special purpose
vehicles (SPVs)) may turn out to be misinvestments.
•
CHORUS may not be able to successfully integrate newly acquired
companies into its existing operations and may face other adverse
consequences of acquisitions of operating companies.
•
CHORUS’ interests regarding acquired solar and wind parks may
deviate from those of co-investors and joint venture partners in
such parks.
•
CHORUS is subject to technological and regulatory risks resulting
from projects under construction, which may lead to delays in
completion, increased cost and/or lower compensation for
electricity fed into the grid.
•
CHORUS is subject to risks resulting from defects of building
materials, maintenance problems, malfunctions, unexpected
damages, external influences, terror attacks and other forces
majeures, IT problems (incl. through hacking) and other factors
regarding its renewable energy facilities.
•
Disturbances of grid connections may affect the feed-in of
electricity and the profitability of the solar and wind parks.
•
Lower prices for energy from conventional sources could
negatively impact CHORUS’ results from energy sales.
•
A high inflation rate could negatively impact CHORUS’ results.
•
CHORUS may be unable to initiate further funds for institutional
investors or to structure investments for professional investors in
the future or may not realize the projected fees for its fund and
asset management as well as advisory services to CHORUS
SICAV-SIF and other investment vehicles of professional investors.
•
The CHORUS Group depends on its members of management and
further qualified personnel.
16
•
D.3
Key risks specific to
the securities.
CHORUS is dependent on rights of use regarding its operational
premises, the premature termination of which could affect
CHORUS’ business activities.
•
CHORUS may be liable for contaminated or polluted properties and
sites and the surrounding environment used by its operating
companies.
•
The further growth of CHORUS depends on the availability of
project financing as well as on successful raising of capital for the
acquisition of renewable energy facilities.
•
If CHORUS operating companies are not able to fulfill their debt
service obligations and obligations to pay ongoing fees from its
project financings taken out, enforcement rights of banks and
service providers may be triggered.
•
Changes in interest rates with respect to CHORUS’ financing may
lead to an increase of costs.
•
In the event that CHORUS should expand its business activities
beyond the Eurozone, fluctuating currency exchange rates could
affect its financial position.
•
The Issuer is dependent on the results of operations of its
subsidiaries.
•
CHORUS depends on the development and successful
implementation of management systems for the operating group
companies and risk control systems for the entire CHORUS Group,
and may also have difficulties to meet increased IFRS
requirements and stock exchange reporting requirements.
•
CHORUS is subject to the tax laws and regulations in Germany and
other countries. Its tax burden may increase as a consequence of
future tax treatment of dividend payments, non-deductibility of
interest payments, current or future tax assessments or court
proceedings, or based on changes in domestic or foreign tax laws
and double taxation treaties or changes in the application or
interpretation thereof. CHORUS could be obliged to pay additional
taxes as a result of tax audits.
•
In connection with the distribution of funds initiated by CHORUS in
the past, companies of the CHORUS Group could be exposed to
damage claims, including claims based on prospectus liability
raised by investors, recourse claims of distribution partners and
claims with regard to wrongful investment advice provided by
distribution partners.
•
The quarterly results of the CHORUS Group are cyclical and
subject to fluctuations.
Risks Related to the Reorganization of the CHORUS Group pre-IPO
•
In connection with the recent reorganization of the CHORUS
Group, the Issuer could be held liable to pay damages or be
required to unwind some of the contributions. The Issuer also could
have assumed unknown liabilities.
•
Expected synergies from the new group structure may not, not to
the degree expected or later than expected be realized.
Risks Relating to the Offering and the Shares
•
There is no existing market for the Issuer’s shares, and an active
trading market for the Issuer’s shares may fail to develop after the
Offering.
•
The market price of the Issuer’s shares may deviate significantly
from the offer price and the share price or the trading volume of the
Issuer’s shares could fluctuate significantly.
17
•
•
•
•
•
•
•
•
Any future sales of the Issuer’s shares by its existing shareholders
or investors acquiring shares in the Offering could depress the
market price of the Issuer’s shares.
The interests of the Issuer’s Major Shareholder may deviate from,
or conflict with, the Issuer’s or its other shareholders’ interests.
The Issuer will have broad discretion in how it uses the net
proceeds from the Offering, and if the Issuer fails to use them
effectively, the price of the Issuer’s shares may decline.
The Issuer may not be able to pay dividends in the future (or may be
limited in its ability to pay dividends under future finance
agreements).
The Offering might not take place, and investors could lose security
commissions already paid and bear the risk of not covering any
short sales of the shares.
Future capitalization measures may lead to substantial dilution, i.e.,
a reduction in the value of the shares and the control rights of
existing shareholders’ interests in the Issuer. Future offerings of
debt or equity securities may adversely affect the market price of
the Issuer’s shares.
Investors with a reference currency other than the euro may
become subject to certain foreign exchange risks when investing in
the Issuer’s shares.
Shareholders outside of Germany may not be able to participate in
future rights offerings.
SECTION E – OFFER
E.1
The total net
proceeds.
Estimate of the total
expenses of the
offering and listing,
including estimated
expenses charged to
the investor by the
issuer.
The Company will receive the proceeds of the Offering resulting from
the sale of the New Shares (as defined above in C.1) and, if and to the
extent the Greenshoe Option (as defined below in E.3) is exercised,
from the exercise of the Greenshoe Option, in each case after deduction
of fees and commissions. The Selling Shareholders (as defined above
in C.1) will receive the proceeds (net of fees, commissions and costs)
resulting from the sale of the Offered Existing Shares (as defined above
in C.1).
The amount of the proceeds of the Offering as well as the costs related
to the Offering depend on the final offer price, which also determines the
Underwriters’ commissions, and on the number of shares that will be
placed in the Offering. Assuming (i) a placement of all Offer Shares at
the mid-point of the price range set for the Offering and (ii) full exercise
of the Greenshoe Option, the total gross proceeds of the Offering of
New Shares and Offered Existing Shares will amount to approximately
e162.95 million, of which e154.75 million are attributable to the
Company and e8.20 million are attributable to the Selling Shareholders.
The expenses related to the Offering of New Shares and Offered
Existing Shares and the listing of the Company’s shares will be borne by
the Company and the Selling Shareholders (as defined above in C.1)
pro rata to the gross proceeds attributable to each of them.
Assuming a placement of all New Shares at the mid-point of the price
range and full exercise of the Greenshoe Option, the costs of the
Company related to the offering of the New Shares and the stock
exchange listing are expected to total approximately e10.30 million,
including Underwriters’ commissions (equal to 2.75% of the offer price
per New Share and Offered Existing Share as well as per new shares
issued by the Company upon exercise of the Greenshoe Option (as
defined below under E.3) plus up to 1% of the offer price for these
shares as additional discretionary incentive fee) of e5.80 million
18
E.2a Reasons for the
offering, use of
proceeds, estimated
net amount of the
proceeds.
E.3
Description of the
terms and conditions
of the offer.
(assuming full payment of the discretionary fee with respect to the New
Shares and Offered Existing Shares and the exercise of the Greenshoe
Option) and estimated other expenses of e4.50 million. Under the above
assumptions, the net proceeds to the Company from the sale of the New
Shares and the exercise of the Greenshoe Option, i.e., the gross
proceeds less the costs of the Company, are expected to amount to
approximately e144.44 million.
Based on the assumptions of a placement of all Offered Existing Shares
at the mid-point of the price range, the Company estimates that the
commission payable by the Selling Shareholders to the Underwriters
attributable to the sale of the Offered Existing Shares, assuming full
payment of the discretionary fee with respect to these shares, will
amount to e0.31 million. The Selling Shareholders furthermore will bear
the portion of the offering and listing costs related to the Offered Existing
Shares. The Company estimates that at the mid-point of the price range,
the net proceeds to the Selling Shareholders from the sale of the
Offered Existing Shares, i.e., the gross proceeds less the costs of the
Selling Shareholders, are expected to amount to approximately
e7.66 million.
Investors will not be charged expenses by the Company or the
Underwriters.
The Company intends to sell the New Shares and use the main part of
its portion of the estimated net proceeds of the Offering of
e124.03 million to finance the growth and development of its businesses
through the acquisitions of further renewable energy facilities out of its
current pipeline of investment opportunities and, to a lesser degree, also
for the expansion of its business line ‘‘asset management’’ (e.g.,
through moderate hiring of additional personnel or building up of a sales
organization in new markets). In addition, the listing of the Company’s
shares on the regulated market segment (regulierter Markt) of the
Frankfurt Stock Exchange and, simultaneously, on the sub-segment
thereof with additional post-admission obligations (Prime Standard)
shall provide the Company with better access to the capital markets.
Offer conditions
This Offering relates to 14,647,312 ordinary bearer shares with no-par
value (Stückaktien) of CHORUS Clean Energy AG, each such share
with a notional value of e1.00 and entitled to full dividend rights for the
year starting January 1, 2015, consisting of:
•
12,000,000 newly issued ordinary bearer shares from a capital
increase in connection with the Offering resolved by the Company’s
extraordinary general shareholders’ meeting on May 20, 2015 (the
New Shares, as defined above);
•
737,384 Offered Existing Shares (as defined above) from the
holdings of the Selling Shareholders (as defined above); and
•
1,909,928 Over-Allotment Shares (as defined above) from the
holdings of the Lending Shareholders (as defined above) to cover
potential over-allotments (the Over-Allotment Shares together with
the New Shares and the Offered Existing Shares, the Offer Shares,
each as defined above).
The Offering consists of initial public offerings in the Federal Republic of
Germany (‘‘Germany’’) and the Republic of Austria (‘‘Austria’’) and
private placements in certain jurisdictions outside Germany and Austria.
The Offer Shares will be offered and sold only outside the United States
of America and only in offshore transactions in reliance on Regulation S
under the United States Securities Act of 1933, as amended.
19
Offer period
The period during which investors may submit purchase orders for the
Offer Shares is expected to begin on June 22, 2015, and is expected to
end on July 1, 2015 (the ‘‘Offer Period’’). On the last day of the Offer
Period, offers to purchase may be submitted (i) until 12:00 noon (Central
European Summer Time) (‘‘CEST’’) by private investors and (ii) until
14:00 (CEST) by institutional investors.
Price range and offer price
The price range within which purchase orders may be placed is e9.75 to
e12.50 per Offer Share.
Once the Offer Period has expired, the offer price will be determined by
the Company after consultation with the Sole Global Coordinator using
the order book prepared during the bookbuilding process. This is
expected to take place on or about July 1, 2015.
Amendments to the terms of the Offering
The Issuer, together with the Sole Global Coordinator, reserves the right
to increase or decrease the total number of Offer Shares, to increase or
decrease the upper limit and/or the lower limit of the price range and/or
to extend or shorten the Offer Period. Changes in the number of Offer
Shares, changes to the price range or the extension or shortening of the
Offer Period will not invalidate any offers to purchase that have already
been submitted. If such change requires the publication of a supplement
to this Prospectus, investors who submitted purchase orders before the
supplement is published shall have the right, under the German
Securities Prospectus Act (Wertpapierprospektgesetz) to withdraw
these offers to purchase within two business days of the publication of
the supplement. Instead of withdrawing the offers to purchase placed
prior to the publication of the supplement, investors may change their
orders or place new limited or unlimited offers to purchase within two
business days of the publication of the supplement. To the extent that
the terms of the Offering are changed, such change will be published by
means of electronic media (such as Reuters or Bloomberg) and, if
required
by
the
German
Securities
Prospectus
Act
(Wertpapierprospektgesetz) or the Listing Rules (Börsenordnung) of the
Frankfurt Stock Exchange, as a publication of significant information via
an electronic information system, on the Issuer’s website and as a
supplement to this Prospectus. Investors who have submitted offers to
purchase will not be notified individually. Under certain conditions, the
Sole Global Coordinator, acting on behalf of the Underwriters, may
terminate the underwriting agreement relating to the Offering entered
into with the Issuer on June 19, 2015 (the ‘‘Underwriting Agreement’’),
even after commencement of trading (Aufnahme des Handels) of the
Issuer’s shares on the regulated market segment (Prime Standard) of
the Frankfurt Stock Exchange.
Delivery and payment
The delivery of the Offer Shares against payment of the offer price is
expected to take place on July 6, 2015. The Offer Shares will be made
available to the shareholders as co-ownership interests in the Global
Share Certificates.
Stabilization measures, over-allotment and Greenshoe option
In connection with the placement of the Offer Shares, Berenberg, acting
for the account of the Underwriters, will act as the stabilization manager
(the ‘‘Stabilization Manager’’) and may, as Stabilization Manager
acting in accordance with legal requirements (Section 20a para. 3 of the
German Securities Trading Act (Wertpapierhandelsgesetz) in
conjunction with Commission Regulation (EC) No. 2273/2003 of
20
E.4
Interests material to
the issue/offer
including conflicting
interests.
December 22, 2003), make over-allotments and take stabilization
measures to support the market price of the Company’s shares and
thereby counteract any selling pressure.
The Stabilization Manager is under no obligation to take any
stabilization measures. Therefore, no assurance can be provided that
any stabilization measures will be taken. Where stabilization measures
are taken, these may be terminated at any time without notice. Such
measures may be taken from the date the Company’s shares are listed
on the regulated market on the Frankfurt Stock Exchange and must be
terminated no later than the 30th day after such date (the ‘‘Stabilization
Period’’).
These measures may result in the market price of the Company’s
shares being higher than would otherwise have been the case.
Moreover, the market price may temporarily be at an unsustainable
level.
With a view to possible stabilization measures, investors may be
allocated up to 1,909,928 Over-Allotment Shares (‘‘Over-Allotment’’).
For the purpose of such a potential Over-Allotment, the Stabilization
Manager, for the account of the Underwriters, will be provided with
1,909,928 Company’s shares from the holdings of the Lending
Shareholders in the form of a securities loan, granted by each Lending
Shareholder in proportion to its shareholding in the Company prior to the
Offering. The total number of Over-Allotment Shares will not exceed
15.00% of the number of Offer Shares excluding Over-Allotments. The
Company will grant the Underwriters an option to subscribe a number of
the Company’s shares equal to the number of Over-Allotment Shares at
the offer price less agreed commissions (the ‘‘Greenshoe Option’’),
which would be issued by the Company from the authorized capital of
the Company. The Greenshoe Option will terminate on August 3, 2015.
The Underwriters are entitled, but not obligated, to exercise the
Greenshoe Option to the extent Over-Allotments of Company’s shares
were initially made.
Once the Stabilization Period has ended, an announcement will be
made within one week in various media outlets distributed across the
entire European Economic Area as to whether stabilization measures
were taken, when price stabilization started and finished, and the price
range within which the stabilization measures were taken; the latter will
be made known for each occasion on which price stabilization
measures were taken. Exercise of the Greenshoe Option, the timing of
its exercise and the number and type of Company’s shares concerned
will also be announced promptly in the same manner.
In connection with the Offering and the admission to trading of the
Company’s shares on the Frankfurt Stock Exchange, the Underwriters
have formed a contractual relationship with the Company. The
Underwriters act for the Company on the Offering and coordinate the
structuring and execution of the Offering. In addition, the Underwriters
have been appointed to act as designated sponsors for the Company’s
shares and Bankhaus Neelmeyer AG has been appointed to act as
paying agent. Upon successful implementation of the Offering, the
Underwriters will receive a commission. As a result of these contractual
relationships, the Underwriters have a financial interest in the success
of the Offering.
Furthermore, in connection with the Offering, each of the Underwriters
and any of their respective affiliates, acting as an investor for their own
account, may acquire shares in the Offering and in that capacity may
retain, purchase or sell for its own account such shares or related
investments and may offer or sell such shares or other investments
21
E.5
otherwise than in connection with the Offering. In addition, certain of the
Underwriters or their affiliates may enter into financing arrangements
(including swaps or contracts for differences) with investors in
connection with which the Underwriters (or their affiliates) may from time
to time acquire, hold or dispose of shares in the Company. None of the
Underwriters intends to disclose the extent of any such investment or
transactions otherwise than in accordance with any legal or regulatory
obligation to do so or as disclosed in this Prospectus.
COMMERZBANK AG is involved in the technical securities transfer and
settlement of the Offered Existing Shares in the Offering on behalf of the
Selling Shareholders and receives a fee for its services, which to some
degree depends on the successful placement of the Offered Existing
Shares as part of the Offering. As a result, COMMERZBANK AG has a
financial interest in the success of the Offering.
Some of the Underwriters or their affiliates have, and may from time to
time in the future continue to have, business relations with the CHORUS
Group (including lending activities) or may perform services for the
CHORUS Group in the ordinary course of business.
The Selling Shareholders will receive the proceeds of the Offered
Existing Shares. Assuming a full placement of all Offered Existing
Shares at the mid-point of the price range, and after deducting fees and
expenses to be paid by the Selling Shareholders in connection with the
Offering, the proceeds to the Selling Shareholders would amount to
approximately to e7.66 million, or 5.03% of the total gross Offering
proceeds.
The members of our Management Board will each receive a one-off
bonus payment if the Company successfully completes a public offering
in 2015 in which the Company receives new equity of at least
e50 million. Furthermore, each board member will receive an increase
of their annual base salary in case of a successful completion of the
Offering, the amount of which depends on the amount of gross
proceeds received by the Company from the issuance and placement of
the New Shares in the Offering (including new shares from the exercise
of the Greenshoe Option) and is capped at a certain maximum increase
amount per board member. As a result, the members of our
Management Board each have a financial interest in the success of the
Offering.
Since the Company will receive the proceeds from the Offering of the
New Shares and these will strengthen the equity capital basis of the
Company, all direct and indirect shareholders with an interest in the
Company, in particular the existing shareholders of the Company who
are not Selling Shareholders including the members of the Management
Board and Peter Heidecker, the chairman of our Supervisory Board
(indirectly
through
his
affiliated
companies
PELABA
Anlagenverwaltungs GmbH & Co. KG and PELABA Ökofinanz GmbH),
have an interest in the implementation of the capital increase to which
this Offering relates.
In addition to the afore-mentioned interests, the Company is not aware
of any interests which are material to the Offering and which could be
considered conflicting.
Name of the person or The Offer Shares are being offered for sale by the Underwriters.
entity offering to sell
the security.
Lock-up agreements:
The Company undertook to the Underwriters for a period of six months
the parties involved;
following the first day of trading of the shares in the Company on the
and indication of the
Frankfurt Stock Exchange, that it will not and will not agree to, without
period of the lock up. the prior written consent of the Underwriters (which shall not be
22
unreasonably withheld or delayed):
•
directly nor indirectly issue, sell, offer, commit to sell or otherwise
dispose of Shares or announce such offer; or
•
directly or indirectly issue, securitize, offer, commit to sell,
otherwise dispose of any financial instruments carrying conversion
or option rights with respect to the Shares or announce such offer;
or
•
announce or implement a capital increase from authorized capital –
with the exception of a capital increase upon exercise of the
Greenshoe Option in connection with this Offering; or
•
submit a resolution for a capital increase including new authorized
capital to any shareholders’ meeting; or
•
conduct any transactions (including derivative transactions) that
would have an economic effect similar to the above measures.
This excludes the issuance or sale, as applicable, of shares or other
securities issued under employee participation programs or stock option
plans to employees of the Company or its affiliates as well as the
issuance of shares against contributions in kind in connection with any
acquisition, equity investment or joint venture directly to the partner in
any such acquisition, equity investment or joint venture.
By way of lock-up agreements, the existing shareholders of the
Company, PELABA Anlagenverwaltungs GmbH & Co. KG (the ‘‘Major
Shareholder’’), a company affiliated with the chairman of our
Supervisory Board, Peter Heidecker, and the members of the
Management Board of the Company, Holger Götze, Heinz Jarothe and
Helmut Horst, each undertook not to, for a period of six months following
the first day of trading of the Company’s shares on the Frankfurt Stock
Exchange (currently expected to take place on July 3, 2015) and
thereafter for another 12 months only upon the prior written consent of
the Sole Global Coordinator (such consent not to be unreasonably
withheld or delayed),
•
offer, pledge, allot, market, distribute, sell, transfer or otherwise
dispose of, directly or indirectly (including, but not limited to, the
issuance or sale of any securities exchangeable into Company’s
shares), any Company’s shares;
•
cause or approve, directly or indirectly, the announcement,
execution or implementation of any increase in the share capital of
the Company or a direct or indirect placement of Company’s
shares;
•
propose, directly or indirectly, any increase in the share capital of
the Company to any meeting of the shareholders for resolution, or
vote in favor of such a proposed increase;
•
cause or approve, directly or indirectly, the announcement,
execution or proposal of any issuance of financial instruments
constituting options or warrants convertible into Company’s shares;
or
•
enter into a transaction or perform any action economically similar
to those described in the bullets above,
in case of the second and third bullet above other than for the purposes
of the Offering and in each case of the five bullets above other than as
expressly provided by this Prospectus.
The aforementioned selling restrictions (lock-up) of the Major
Shareholder and the members of our Management Board do not apply
to disposals of shares of the Company within the framework of a public
takeover bid. Further excluded are transactions by the Major
23
E.6
Amount and
percentage of
immediate dilution
resulting from the
offering.
Shareholder with companies affiliated with the Major Shareholder or the
distribution of Company’s shares by such shareholder to its
shareholder(s), member(s) or partner(s) (as applicable) through
dividends in kind, if it can be ensured that the recipient is subject to the
same selling restrictions as the Major Shareholder. PELABA
Ökofinanz GmbH, the other company affiliated with Peter Heidecker
holding shares in the Company, has not entered into a lock-up regarding
these 18,597 shares.
Furthermore, as a result of a resolution of the respective fund
shareholders, the Fund KGs are only permitted to sell shares in the
Company to cover the Fund KGs’ running costs or to transfer shares as
distribution in kind to their fund shareholders.
The carrying amount of the shareholders’ equity of the Company
including non-controlling interests (equity attributable to shareholders of
the Company, or ‘‘Net Asset Value’’, i.e., the total assets less
non-current and current liabilities) amounted to e123,121 thousand at
March 31, 2015 based on the Unaudited Interim Condensed
Consolidated Financial Statements, corresponding to e7.06 per share
based on 17,448,539 outstanding ordinary bearer shares of the
Company prior to the Offering.
Assuming aggregate net proceeds to the Company of approximately
e124.03 million (from the sale of the New Shares and excluding any
proceeds from the exercise of the Greenshoe Option), the carrying
amount—had the Company already received the aggregate net
proceeds by March 31, 2015—of the Net Asset Value so adjusted on the
Company’s consolidated interim statement of financial position as of
March 31, 2015 would have been e247.15 million (based on the
mid-point of the price range), or e8.39 per share (calculated on the basis
of 29,448,539 shares outstanding after full implementation of the capital
increase regarding the New Shares). That would correspond to a direct
dilution of e2.73 (24.56%) per share for the parties acquiring the Offer
Shares at the mid-point of the price range. At the low end and high end
of the price range, the corresponding figures would be e1.90 (19.45%)
and e3.57 (28.55%), respectively. Assuming full exercise of the
Greenshoe Option, the carrying amount of the thus adjusted total Net
Asset Value on the Company’s consolidated interim statement of
financial position as of March 31, 2015, would have been
e267.56 million (based on the mid-point of the price range); this
corresponds to approximately e8.53 per share (calculated on the basis
of 31,358,467 shares outstanding after full implementation of the capital
increase regarding the New Shares and full exercise of the Greenshoe
Option). That would correspond to a direct dilution of e2.59 (23.30%)
per share for the parties acquiring the Offer Shares at the mid-point of
the price range.
Under the assumption that the capital increase regarding the New
Shares is fully implemented, the accretion to the Net Asset Value per
share (comparing the Net Asset Values prior to and after the Offering)
will be e1.34 (or 18.94%) per share for existing shareholders of the
Company (based on an offer price at the mid-point of the price range
and excluding any proceeds resulting from the exercise of the
Greenshoe Option). Under the assumption that the capital increase
regarding the New Shares is fully implemented and the Greenshoe
Option is fully exercised, the accretion to the Net Asset Value per share
(comparing the Net Asset Values prior to and after the Offering) will be
e1.48, or 20.92%, per share, for existing shareholders of the Company
(based on an offer price at the mid-point of the price range).
24
E.7
Estimated expenses
Not applicable. Investors will not be charged expenses by the Company
charged to the
or the Underwriters.
investor by the issuer.
25
GERMAN TRANSLATION OF THE SUMMARY
ZUSAMMENFASSUNG
Zusammenfassungen bestehen aus geforderten offenlegungspflichtigen Angaben, die als
„Elemente‘‘ bezeichnet sind. Diese Elemente sind in den Abschnitten A – E (A.1 – E.7) fortlaufend
nummeriert. Diese Zusammenfassung (die „Zusammenfassung‘‘) enthält alle Elemente, die in eine
Zusammenfassung für diese Art von Wertpapier und Emittent aufzunehmen sind. Da einige Elemente
nicht behandelt werden müssen, können in der Nummerierungsreihenfolge Lücken auftreten. Selbst
wenn ein Element wegen der Art des Wertpapiers und des Emittenten in die Zusammenfassung
aufgenommen werden muss, ist es möglich, dass bezüglich dieses Elements keine relevante Information
gegeben werden kann. In einem solchen Fall enthält die Zusammenfassung eine kurze Beschreibung
des Elements mit dem Hinweis „entfällt‘‘.
ABSCHNITT A – EINLEITUNG
A.1
Warnhinweise.
A.2
Angabe über spätere
Verwendung des
Prospekts.
UND
WARNHINWEISE
Diese Zusammenfassung sollte als Einleitung zu diesem Prospekt
(„Prospekt‘‘) verstanden werden. Entscheidungen zur Anlage in die
vorliegenden Wertpapiere sollten auf die Prüfung des gesamten
Prospekts gestützt werden.
Für den Fall, dass ein Anleger wegen der in dem Prospekt enthaltenen
Angaben vor einem Gericht klagen will, könnte es sein, dass er nach
den einzelstaatlichen Rechtsvorschriften der Mitgliedstaaten des
Europäischen
Wirtschaftsraums
(die
„Mitgliedstaaten‘‘)
möglicherweise für die Übersetzung des Prospekts aufkommen muss,
bevor das Verfahren eingeleitet werden kann.
CHORUS Clean Energy AG, Neubiberg (Landkreis München),
Deutschland (die „Gesellschaft‘‘ oder die „Emittentin‘‘, gemeinsam mit
ihren direkten und indirekten Tochtergesellschaften, die im
Konzernabschluss der Emittentin voll konsolidiert sind, „wir‘‘, „uns‘‘,
„unser‘‘ bzw. „unsere‘‘, „CHORUS‘‘ oder die „CHORUS Gruppe‘‘),
zusammen mit Joh. Berenberg, Gossler & Co. KG („Berenberg‘‘ oder
der „Sole Global Coordinator‘‘) und BHF-BANK Aktiengesellschaft
(„BHF-BANK‘‘, und zusammen mit Berenberg die „Joint Bookrunners‘‘
oder die „Underwriter‘‘), übernehmen die Verantwortung für den Inhalt
dieser Zusammenfassung gemäß § 5 Absatz 2b Ziff. 4 des
Wertpapierprospektgesetzes,
einschließlich
der
deutschen
Übersetzung. Diejenigen Personen, die die Verantwortung für die
Erstellung der Zusammenfassung einschließlich ihrer Übersetzung
übernommen haben oder von denen der Erlass ausgeht, können
haftbar gemacht werden, jedoch nur für den Fall, dass die
Zusammenfassung irreführend, unrichtig oder widersprüchlich ist, wenn
sie zusammen mit den anderen Teilen des Prospekts gelesen wird,
oder sie, wenn sie zusammen mit den anderen Teilen des Prospekts
gelesen wird, nicht alle erforderlichen Schlüsselinformationen
vermittelt.
Entfällt. Die Emittentin hat keine Zustimmung zur Verwendung des
Prospekts für die spätere Weiterveräußerung oder endgültige
Platzierung von Aktien der Gesellschaft durch Finanzintermediäre
erteilt.
ABSCHNITT B – EMITTENT
B.1
B.2
Juristische und
kommerzielle
Bezeichnung.
Sitz und Rechtsform
des Emittenten,
anwendbares Recht,
Land der Gründung.
Der juristische und kommerzielle Name der Emittentin ist CHORUS
Clean Energy AG.
Die CHORUS Clean Energy AG hat ihren Sitz in Neubiberg (Landkreis
München), Deutschland, und ist im Handelsregister des Amtsgerichts
München, Deutschland, unter HRB 213342 eingetragen. Die
Gesellschaft ist eine deutsche Aktiengesellschaft, die gemäß dem
Recht der Bundesrepublik Deutschland gegründet wurde und
deutschem Recht unterliegt.
26
B.3
Derzeitige
Geschäftstätigkeit und
Haupttätigkeiten sowie
Hauptmärkte, auf
denen der Emittent
vertreten ist.
CHORUS ist ein unabhängiger Stromerzeuger und Verwalter von
Anlagen (Asset Manager) mit einem kompletten Angebot an
Dienstleistungen und einem langjährigen Schwerpunkt auf
Investitionen in Anlagen im Bereich erneuerbare Energien. Daneben
bietet CHORUS Beratungs- und Anlagenverwaltungs-Dienstleistungen
für professionelle Investoren im Bereich der erneuerbaren Energien an.
Seit seiner Spezialisierung auf den Bereich der erneuerbaren Energien
im Jahr 2006 hat CHORUS 21 Kommanditgesellschaften und drei
luxemburgische Spezialfonds mit Schwerpunkt im Erneuerbare
Energien-Sektor für institutionelle Investoren gegründet, die – von
CHORUS beraten – in 67 Solar- und Windparks in Deutschland und
anderen europäischen Ländern investiert haben (entsprechend einem
Gesamt-Investitionsvolumen von ungefähr e673 Mio.) und über eine
Gesamtkapazität von 254 MW (davon Solarparks: 151 MW und
Windparks: 103 MW) verfügen. Von 2009 bis 2014 stieg die jährlich
produzierte Gesamtelektrizitätsmenge der von CHORUS verwalteten
und betriebenen Solar- und Wind-Parks von 1,3 MWh (2009) auf
252.843 MWh (2014). CHORUS hält und betreibt 62 dieser Parks (das
„CHORUS Portfolio‘‘) und verwaltet und betreibt fünf Windparks für die
von ihr initiierten luxemburgischen Spezialfonds (das „Verwaltete
Portfolio‘‘). Im Anschluss an den Erwerb eines Solar- oder Windparks
für das eigene Portfolio oder für die professionellen Fonds und
Investoren bietet CHORUS den jeweiligen Gesellschaften, denen die
Solar- und Windparks gehören, Dienstleistungen im Bereich des
Betriebs und der Anlagenverwaltung an.
Im Zuge der kürzlich erfolgten Reorganisation der CHORUS Gruppe
wurde das bestehende Portfolio von Solar- und Windparks, das vorher
von einem Großteil der Kommanditgesellschaften gehalten wurde,
sowie die Anlagenverwaltungs- und Beratungsgesellschaften, auf die
Emittentin übertragen. CHORUS geht davon aus, gemessen an der
Gesamtkapazität des CHORUS Portfolios, einer der größten
unabhängigen Stromerzeuger und Verwalter von Anlagen (Asset
Manager) mit einem kompletten Angebot an Dienstleistungen im
Bereich der erneuerbaren Energien in Deutschland zu sein.
Die Geschäftstätigkeit von CHORUS ist in zwei Geschäftszweige
eingeteilt: „Stromerzeugung‘‘ und „Anlagenverwaltung‘‘.
•
Im Geschäftszweig „Stromerzeugung‘‘ kauft und betreibt CHORUS
Solar- und Windparks in Europa mit einem Schwerpunkt auf
Deutschland. Das CHORUS Portfolio erzeugte im Geschäftsjahr
2014 insgesamt 219.249 MWh, was ausreicht, um den jährlichen
Energiebedarf von etwa 73.000 durchschnittlichen deutschen
Zweipersonenhaushalten3 zu decken. Die von CHORUS
gehaltenen 57 Solarparks erzeugten 164.034 MWh und die fünf
Windparks 55.214 MWh im Jahr 2014. Im Geschäftszweig
„Stromerzeugung‘‘ wird CHORUS weiterhin in Anlagen im Bereich
erneuerbare Energien in europäischen Ländern investieren, die
nach CHORUS’ Einschätzung einen verlässlichen regulatorischen
Rahmen bieten. Der Schwerpunkt dieser Investitionen wird
weiterhin in der Solar- und Windenergie liegen. CHORUS prüft
jedoch regelmäßig auch Investitionsmöglichkeiten in andere
ausgereifte Technologien im Bereich der erneuerbaren Energien,
wie Wasserkraft und Energiespeichersysteme.
•
Im Geschäftszweig „Anlagenverwaltung‘‘ initiiert CHORUS Fonds
für institutionelle Investoren oder (als Teil ihrer ‘Tailored Investment
Solutions’ Dienstleistungen) strukturiert gegen Entgelt andere
3
Basierend auf einem durchschnittlichen Verbrauch eines durchschnittlichen deutschen 2-Personen Haushalts ohne elektronische
Warmwasseraufbereitung pro Jahr von 3.000 KWh (Quelle: BDEW – Bundesverband der Energie- und Wasserwirtschaft e.V.,
Electricity Consumption in Private Households, October 2013).
27
Investitionen für professionelle Investoren im Bereich erneuerbare
Energien bzw. schneidet diese auf deren Bedürfnisse zu und
erbringt betriebliche Dienstleistungen für bestehende Kraftwerke
professioneller Investoren. Im April 2014 erhielt CHORUS die
endgültige Genehmigung für die Initiierung des ersten
luxemburgischen Spezialfonds, den CHORUS Infrastructure
Fund S.A. SICAV-SIF („CHORUS SICAV-SIF‘‘), der auf den
Erwerb eines diversifizierten Portfolios von Infrastrukturvermögen,
insbesondere Erneuerbare-Energien-Parks, in ausgewählten
europäischen Ländern, mit einem derzeitigen Schwerpunkt auf
Deutschland, ausgerichtet ist. Zwei Teilfonds des CHORUS
SICAV-SIF haben im Jahr 2014 bereits ihr anfänglich
aufgenommenes Kapital durch den Erwerb von Windparks mit
einem Investitionsvolumen von insgesamt mehr als e150 Mio.
investiert. Ein dritter Teilfonds wurde kürzlich von der
luxemburgischen Regulierungsbehörde genehmigt und befindet
sich derzeit in der Phase des Vertriebs an Investoren. Daneben
erbringt CHORUS in diesem Geschäftszweig „Anlagenverwaltung‘‘
Betriebs- und Anlagenverwaltungs-Dienstleistungen für diejenigen
Gesellschaften, denen das CHORUS Portfolio gehört, und – gegen
eine wiederkehrende Vergütung – für diejenigen Gesellschaften,
denen die Verwalteten Portfolios gehören.
CHORUS glaubt, dass die folgenden Stärken ihre Wertschöpfung in der
Vergangenheit vorangetrieben haben und es ihr auch in Zukunft
ermöglichen werden, sich von ihren Mitbewerbern abzusetzen:
•
CHORUS verfügt über ein umfangreiches und breitgefächertes
Portfolio an Solar- und Onshore-Windparks von hoher Qualität.
•
CHORUS verfolgt einen risikoreduzierten Investitionsansatz und
hat breiten Zugang zu Investitionsmöglichkeiten und eine große
Pipeline von Investitionsmöglichkeiten.
•
CHORUS verfügt über eine hohe Leistungsfähigkeit beim Betrieb
von Anlagen.
•
CHORUS verfügt über exzellenten Zugang zu professionellen
Investoren.
•
CHORUS generiert aufgrund seines breitgefächerten Portfolios an
Solar- und Onshore-Windparks einen stabilen und vorhersehbaren
Cashflow.
•
CHORUS verfügt über ein erfahrenes Managementteam und einen
optimierten Betrieb.
CHORUS strebt eine gewinnbringende Erweiterung des gegenwärtigen
Portfolios von Solar- und Windparks durch den Erwerb weiterer Anlagen
an sowie eine entsprechende Ausweitung der Aktivitäten im Bereich
Fondsinitiierung und Investitionsstrukturierung für professionelle
Investoren und eine Weiterentwicklung der Beratungs- und
Anlageverwaltungsaktivitäten. Diese Ziele beabsichtigt CHORUS durch
folgende strategische Prioritäten zu erreichen:
•
CHORUS strebt an, ihr Stromerzeugungsgeschäft durch den
Erwerb weiterer Solar- und Windparks auszuweiten.
•
CHORUS strebt an, ihre Aktivitäten im Bereich der Fondsinitiierung
und Investitionen professionelle Investoren auszudehnen.
•
CHORUS beabsichtigt, die Anlagenverwaltung auf ErneuerbareEnergien-Parks Dritter auszudehnen.
•
CHORUS strebt an, das technische Management der Anlagen zu
übernehmen.
Der Industriezweig, in dem CHORUS tätig ist, ist stark reguliert und
abhängig von den rechtlichen Rahmenbedingungen in allen Ländern, in
denen die CHORUS Gruppe gegenwärtig agiert. Staatliche Anreize
28
sind von besonderer Bedeutung für die Stromerzeugung aus
erneuerbaren Energien und mithin für CHORUS finanzielle Situation.
Deutschland zum Beispiel beabsichtigt, den Anteil von erneuerbaren
Energiequellen an der gesamten Stromversorgung konstant und
kosteneffektiv auf mindestens 80% in 2050 zu erhöhen und stellt
gewisse finanzielle Anreize zur Förderung von aus erneuerbaren
Energiequellen gewonnener Elektrizität zur Verfügung. Seit 2000 wird
in Deutschland die Stromerzeugung aus erneuerbaren Energien durch
das Erneuerbare-Energien-Gesetz („EEG‘‘) gefördert, dass anfänglich
bestimmte feste Einspeisevergütungen als über dem Marktwert
liegende Entgelte durch den Netzbetreiber an den Stromproduzenten
gewährte, verbunden mit den Verpflichtungen des jeweiligen
Netzbetreibers zum Anschluss der Erneuerbare-Energien-Anlagen an
sein Netz sowie zum Einspeisen der so erzeugten Energie in sein Netz.
Mit der letzten Änderung des EEG hat Deutschland kürzlich die feste
Einspeisevergütung durch ein System der verpflichtenden
Direktvermarktung der erzeugten erneuerbaren Energie ersetzt, das mit
der Zahlung einer Marktprämie verbunden ist. In diesem
Direktvermarktungssystem leitet der Betreiber der ErneuerbarenEnergien-Anlage seinen Strom „ungefördert‘‘ in das öffentliche Netz, um
ihn
auf
Grundlage
von
Energieversorgungsverträgen
an
Zwischenhändler oder direkt an der Strombörse zu verkaufen.
Zusätzlich zum Marktpreis erhält der Betreiber unter gewissen
Bedingungen eine sogenannte „Marktprämie‘‘ vom Netzbetreiber,
wodurch eine Subventionierung erreicht werden soll.
Beispielsweise wurde in Italien Elektrizität aus erneuerbaren
Energiequellen durch eine Reihe von Anreizen gefördert, die etwa
Garantiezahlungen für Solaranlagen und Einspeisetarife vorsahen. Im
Jahr 2014 entschied der italienische Gesetzgeber allerdings, die
Förderung von Solaranlagen auch mit Rückwirkung für bereits in
Betrieb genommene Anlagen zu kürzen.
Andere europäische Länder, in denen CHORUS aktiv ist, fördern
erneuerbare Energien auf ähnliche Weise.
Das europäische Umfeld für erneuerbare Energien hat sich in den
letzten Jahren verändert und es kam zu einer bemerkenswerten
Ausweitung der Solar- und Windenergie. Im Hinblick auf die Ziele, die
die EU-Kommission für den Anteil von erneuerbaren Energien an der
Stromversorgung im Jahr 2020 gesetzt hat, bedarf es allerdings einer
wesentlichen Weiterentwicklung und eines starken Wachstums im
Bereich der erneuerbaren Energien. Während einige wenige Länder in
Europa, wie zum Beispiel Deutschland und Italien, in den letzten Jahren
die Führungsrolle im Solar- und Windenergiesektor übernommen
haben, müssen andere Ländern zügig aufholen, um die gesetzten Ziele
zu erreichen. (Quelle: Eurostat, „Share of renewable energy in gross
final energy consumption‘‘)
In Deutschland, dem wichtigsten Markt in Europa für CHORUS, lag der
Anteil der erneuerbaren Energien an der gesamten Stromerzeugung
gemäß den von der Arbeitsgemeinschaft Energiebilanzen e.V.
veröffentlichten Zahlen in 2014 bei etwa 27,8%. Obwohl im Jahr 2013
das Leistungsvermögen der neu installierten Photovoltaikanlagen in
Deutschland erstmalig sank, stellte Deutschland immer noch den
größten europäische Photovoltaikmarkt dar. (Quelle: European
Photovoltaic Industry Association – „Global Market Outlook For
Photovoltaics 2014-2018‘‘) Die deutsche Windenergieindustrie
verzeichnete ein bemerkenswertes Jahr 2014. (Quelle: Global Wind
Energy Council – GWEC, „Global Wind Report Annual Market Update
2014‘‘)
29
B.4a Wichtigste jüngste
Trends, die sich auf
den Emittenten und
die Branchen, in
denen er tätig ist,
auswirken.
B.5
Beschreibung der
Gruppe und der
Stellung des
Emittenten innerhalb
dieser Gruppe.
CHORUS geht davon aus, dass sich die Ziele, die auf dem Klimagipfel
der Europäischen Union (EU) in Brüssel im Oktober 2014 hinsichtlich
einer Reduktion der Treibhausgas-Emissionen, Verbesserung der
Energieeffizienz sowie einer Erhöhung des Anteils der Erneuerbaren
Energien vereinbart wurden, auf die Förderung erneuerbarer Energien
unter den verschiedenen regulatorischen Regimen innerhalb der EU
positiv auswirken werden. Zusätzlich ist CHORUS von den jüngsten
Änderungen der Gesetze hinsichtlich der Förderung von erneuerbaren
Energien in den Ländern, in denen CHORUS tätig ist, betroffen,
insbesondere von den Änderungen im Erneuerbare Energien Gesetz
vom 1. August 2014 in Deutschland und von der 2014 beschlossenen
rückwirkenden Kürzung der Förderung für bereits in Betrieb
genommene Solaranlagen in Italien.
Die Gesellschaft ist die Muttergesellschaft der CHORUS Gruppe.
Das folgende Schaubild gibt einen Überblick (in vereinfachter Form)
über die CHORUS Gruppe zum Datum dieses Prospekts:
CHORUS Clean Energy AG
*
100%
Deutsche Solar und
Windenergie **
100%
CHORUS Vertriebs
GmbH
100%
100%
Französische
Windenergie **
Italienische
Solarenergie **
100%
CHORUS
CleanTech
Management GmbH
CHORUS Clean
Energy Advisor
GmbH
100%
CHORUS Clean Energy
Assetmanagement
GmbH
100%
Österreichische
Windenergie **
100%
CHORUS Clean
Energy Invest
GmbH
100%
CHORUS GmbH
40%
CHORUS Clean
Energy Verwaltungs
GmbH
100%
Mehrere reine
Verwaltungsgesellschaften
(Deutschland)
15JUN201510004531
*
CHORUS hält an vier der insgesamt 26 SPVs, die in Deutschland Solar-Parks betreiben, keine 100%-ige Beteiligung; die
sonstigen Solar-Parks werden jeweils zu 100% gehalten. Zudem hält CHORUS drei Wind-Parks in Deutschland (100%).
**
Die aufgeführten Operationen werden in Deutschland, Italien (nur Solarenergie), Frankreich und Österreich (jeweils nur
Windenergie) über SPVs durchgeführt, die die Gesellschaft direkt oder indirekt in diesen Ländern hält, und die wiederum
unmittelbar die jeweiligen Solar- oder Windparks betreiben.
B.6
Personen, die eine
(meldepflichtige)
direkte oder indirekte
Beteiligung am
Eigenkapital des
Emittenten und den
Stimmrechten halten.
Entsprechend der eingegangenen Stimmrechtsmitteilungen und nach
der Kenntnis der Emittentin hielten die folgenden Personen zum Datum
dieses Prospekts eine wesentliche Beteiligung an der Emittentin:
PELABA Anlagenverwaltungs GmbH & Co. KG und PELABA
Ökofinanz GmbH1 ............................................................................. 20,73%
Mitglieder des Vorstands2 ................................................................... 2,44%
CHORUS CleanTech Solar GmbH & Co. 8. KG3 ..................................... 4,32%
Sonstige Fonds KGs4 ........................................................................ 12,00%
Ehemalige Gesellschafter von Fonds KGs5 ............................................ 60,50%
Gesamt..........................................................................................
100%
1
PELABA Anlagenverwaltungs GmbH & Co. KG und PELABA Ökofinanz GmbH sind
jeweils Gesellschaften, die mit dem Aufsichtsratsvorsitzenden der Emittentin, Peter
Heidecker, verbunden sind – weshalb er indirekter Aktionär der Gesellschaft ist.
PELABA Anlagenverwaltungs GmbH & Co. KG hält insgesamt 3.598.388 Aktien der
30
Gesellschaft, und PELABA Ökofinanz GmbH hält insgesamt 18.597 Aktien der
Gesellschaft.
Stimmrechte.
Unmittelbare oder
mittelbare
Beherrschung des
Emittenten und Art der
Beherrschung.
B.7
Ausgewählte
wesentliche
historische
Finanzinformationen.
2
Von den insgesamt 426.392 Aktien (oder 2,44% des Grundkapitals vor dem
Angebot), die von den Vorstandsmitgliedern gehalten werden, halten Holger Götze
3.362 Aktien (oder 0,02% des Grundkapitals vor dem Angebot), Heinz Jarothe
419.721 Aktien (oder 2,41% des Grundkapitals vor dem Angebot) und Helmut Horst
3.309 Aktien (oder 0,02% des Grundkapitals vor dem Angebot). Die
Vorstandsmitglieder haben die Gesellschaft jeweils darüber informiert, dass sie
nicht beabsichtigen, Aktien als Teil des Angebots zu zeichnen.
3
CHORUS CleanTech Solar GmbH & Co. 8. KG ist eine von CHORUS aufgesetzte
Fonds-Kommanditgesellschaft (eine Fonds KG, wie nachstehend unter C.1
definiert). In der für die CHORUS CleanTech Solar GmbH & Co. 8. KG
angegebenen Zahl enthalten sind 350.998 der Angebotenen Bestehenden Aktien
(wie nachstehend unter C.1 definiert), die indirekt von Verkaufenden Aktionären
(wie nachstehend unter C.1 definiert) über ihre Beteiligung an der CHORUS
CleanTech Solar GmbH & Co. 8. KG gehalten werden.
4
Sonstige Fonds-KGs beinhaltet die übrigen Fonds KGs, die weniger als 3% der
Aktien der Gesellschaft halten. Darin enthalten sind 386.386 der Angebotenen
Bestehenden Aktien (wie nachstehend unter C.1 definiert), die indirekt von
Verkaufenden Aktionären (wie nachstehend unter C.1 definiert) über ihre
Beteiligung an den jeweiligen Fonds KGs gehalten werden.
5
Vor dem Datum dieses Prospekts haben sämtliche Fonds KGs (wie nachstehend
unter C.1 definiert), die Aktien der Gesellschaft halten, wesentliche Teile dieser von
ihnen gehaltenen Aktien der Gesellschaft an ihre jeweiligen Fonds-Gesellschafter
als Sachausschüttung übertragen, wodurch die ehemaligen Fondsgesellschafter
unmittelbar Aktionäre der Gesellschaft wurden und aus den jeweiligen Fonds KGs
ausschieden. Keiner dieser ehemaligen Fondsgesellschafter ist hinsichtlich seiner
Aktien an der Gesellschaft einem Lock-up unterworfen. Insgesamt wurden auf diese
Weise bis zum 15. Juni 2015 10.556.805 Aktien der Gesellschaft (entspricht 60,50%
des Grundkapitals) von sämtlichen Fonds KGs an ihre ehemaligen
Fondsgesellschafter ausgeschüttet (unter Berücksichtigung von fehlgeschlagenen
Ausschüttungen bis zu diesem Zeitpunkt). Nach diesen Aktienausschüttungen ist
kein einzelner ehemaliger Fondsgesellschafter mit mehr als 3% am Grundkapital
der Gesellschaft beteiligt.
Jede Aktie der Gesellschaft berechtigt zu einer Stimme in der
Hauptversammlung
der
Gesellschaft.
Es
bestehen
keine
Stimmrechtsbeschränkungen.
Alle
Aktien
haben
identische
Stimmrechte.
Entfällt (keine Beherrschung).
Die folgenden Tabellen stellen Finanzinformationen dar, die aus den
geprüften kombinierten Abschlüssen der Gesellschaft zum
17. Dezember 2014 sowie für das am 17. Dezember 2014 endende
Rumpfgeschäftsjahr und zum 31. Dezember 2013 und 31. Dezember
2012 sowie die am 31. Dezember 2013 und am 31. Dezember 2012
endenden
Geschäftsjahre
(zusammen
die
„Kombinierten
Abschlüsse‘‘) stammen. Ferner stellen die folgenden Tabellen
Finanzinformationen dar, die aus dem geprüften Konzernabschluss der
Gesellschaft zum 31. Dezember 2014 sowie für das am 31. Dezember
2014 endende Geschäftsjahr einschließlich der Vergleichszahlen zum
31. Dezember 2013 sowie für das am 31. Dezember 2013 endende
Geschäftsjahr (der „Konzernabschluss 2014‘‘) und dem ungeprüften
verkürzten Konzernzwischenabschluss zum 31. März 2015 sowie für
den am 31. März 2015 endenden Dreimonatszeitraum (der
„Ungeprüfte
Verkürzte
Konzernzwischenabschluss‘‘,
und
zusammen
mit
dem
Konzernabschluss
2014
die
„Konzernabschlüsse‘‘) stammen. Die Kombinierten Abschlüsse und
die Konzernabschlüsse wurden in Übereinstimmung mit den
31
International Financial Reporting Standards, wie sie in der EU
anwendbar sind („IFRS‘‘), erstellt. Die Kombinierten Abschlüsse und der
Konzernabschluss 2014 wurden in Übereinstimmung mit § 317 des
Handelsgesetzbuchs (HGB) und den vom Institut der Wirtschaftsprüfer
in
Deutschland
festgestellten
deutschen
Grundsätzen
ordnungsgemäßer Abschlussprüfung durch die KPMG AG
Wirtschaftsprüfungsgesellschaft, München, Deutschland, geprüft, die
jeweils uneingeschränkte Bestätigungsvermerke erteilt hat. Der
Ungeprüfte
Verkürzte
Konzernzwischenabschluss
wurde
in
Übereinstimmung mit IFRS, wie sie in der EU für Zwischenabschlüsse
(IAS 34) anwendbar sind, erstellt. Die Kombinierten Abschlüsse, der
Konzernabschluss
2014
und
der
Ungeprüfte
Verkürzte
Konzernzwischenabschluss (zusammen, die „Abschlüsse‘‘) wurden
auf Grundlage des Gesamtkostenverfahrens erstellt.
Die Kombinierten Abschlüsse wurden auf der Grundlage der Regeln
einer gemeinsamen Verwaltung (common management) in
Übereinstimmung mit dem Arbeitspapier der Fédération des Experts
Comptables Européens (FEE) vom Februar 2013 erstellt. Während die
zur Erstellung der Kombinierten Abschlüsse verwendeten
Finanzinformationen im Ergebnis den Finanzinformationen des
vollständigen
zum
31.
Dezember
2014
endenden
Zwölfmonatszeitraums entsprechen, endete die gemeinsame
Verwaltung (common management) mit der Wirksamkeit der ersten
Einbringung der operativen und der Holdinggesellschaften in die
Gesellschaft am 17. Dezember 2014. Deshalb beziehen sich die in den
Kombinierten Abschlüssen enthaltenen Finanzinformationen für das
Geschäftsjahr 2014 formell auf den 17. Dezember 2014 und das zum
17. Dezember 2014 endende Rumpfgeschäftsjahr und spiegeln nicht
die
Auswirkungen
der
Einbringung
der
Holdingund
Betriebsgesellschaften in die Gesellschaft wider. Darüber hinaus
beinhaltet der in diesem Prospekt enthaltene Konzernabschluss 2014
lediglich Finanzinformationen über die Emittentin, CHORUS GmbH und
Tochtergesellschaften von CHORUS GmbH, nicht jedoch über
Nettovermögenswerte, Ertragslage und Zahlungsströme der 74
eingebrachten operativen und Holdinggesellschaften, welchen die
Solar- und Windparks bis zur Einbringung im Dezember 2014 gehörten.
Da die konsolidierte Finanzlage der Gesellschaft auf dem Buchwert der
Vermögensgegenstände in den Kombinierten Abschlüssen beruht, ist
ein Vergleich mit der in den Konzernabschlüssen dargestellten
konsolidierten Finanzlage nur von begrenztem Wert. Zudem ist die
Vergleichbarkeit
der
in
dem
Ungeprüften
Verkürzten
Konzernzwischenabschluss enthaltenen konsolidierten ZwischenGewinn- und Verlustrechnung und des komprimierten übrigen
Eigenkapitals für die am 31. März 2014 und 2015 endenden
Dreimonatszeiträume eingeschränkt, da die 74 Holding- und
Betriebsgesellschaften, einschließlich der Solar- und Windparks, im
Dezember 2014 eingebracht wurden. Daher sind diese nicht in der
Ertragslage für den am 31. März 2014 endenden Dreimonatszeitraum
abgebildet. Für diesen Zeitraum in 2014 enthalten die
Finanzinformationen
lediglich
die
Finanzinformationen
der
CHORUS GmbH und ihrer Tochtergesellschaften.
AUSGEWÄHLTE FINANZINFORMATIONEN
Kombinierte Gewinn- und Verlustrechnung
Die folgende Tabelle stellt ausgewählte Finanzinformationen aus
unserer kombinierten Gewinn- und Verlustrechnung für das zum
32
17. Dezember 2014 endende Rumpfgeschäftsjahr und die zum
31. Dezember 2013 und 2012 endenden Geschäftsjahre dar:
Für das
Rumpfgeschäftsjahr
endend zum
17. Dezember
2014
(in
Umsatzerlöse ......................
Sonstige Erträge ..................
Personalaufwand .................
Sonstige Aufwendungen ........
Betriebsergebnis vor
Zinsen, Steuern,
Abschreibungen und
Amortisation (EBITDA) ........
Abschreibungen und
Amortisation........................
Betriebsergebnis (EBIT) ......
Ergebnisse aus at-equity
bilanzierten Finanzanlagen.....
Finanzerträge ......................
Finanzaufwendungen ............
Bewertung von
Zinssicherungsinstrumenten ...
Finanzergebnis ..................
Ergebnis vor Steuern ..........
Ertragsteuern ......................
Jahresüberschuss ..............
33
Für das
Für das
Geschäftsjahr Geschäftsjahr
endend zum
endend zum
31. Dezember 31. Dezember
2013
2012
Tausend g)
(geprüft)
54.983
49.657
43.748
1.932
3.417
5.206
(2.149)
(2.117)
(2.382)
(12.036)
(12.828)
(12.915)
42.730
38.129
33.657
(17.752)
24.978
(21.110)
17.019
(13.673)
19.984
570
(15.546)
(30)
202
(17.292)
(30)
318
(16.035)
(5.660)
(20.636)
4.342
(612)
3.730
2.443
(14.677)
2.342
(1.435)
907
(3.452)
(19.199)
785
(121)
664
Kombinierte Bilanz
Die folgende Tabelle stellt ausgewählte Finanzinformationen aus
unserer kombinierten Bilanz zum 17. Dezember 2014 und zum
31. Dezember 2013 und 2012 dar:
AKTIVA
Langfristige Vermögenswerte ..
Immaterielle Vermögenswerte ....
Sachanlagen ..........................
At-equity bilanzierte
Finanzanlagen ........................
Langfristige finanzielle
Vermögenswerte .....................
Langfristige nicht finanzielle
Vermögenswerte .....................
Latente Steueransprüche ..........
Kurzfristige Vermögenswerte ..
Forderungen aus Lieferungen
und Leistungen und sonstige
Forderungen...........................
Forderungen gegenüber
Anteilseignern .........................
Forderungen aus Ertragsteuern ..
Sonstige kurzfristige finanzielle
Vermögenswerte .....................
Kurzfristige nicht finanzielle
Vermögenswerte .....................
Liquide Mittel ........................
Bilanzsumme.........................
NETTOVERMÖGEN UND
VERBINDLICHKEITEN
Gesamtnettovermögen............
Langfristige Schulden ............
Verbindlichkeiten gegenüber
Kommanditisten ......................
Langfristige Rückstellungen .......
Langfristige
Finanzverbindlichkeiten .............
Latente Steuerverbindlichkeiten ..
Kurzfristige Schulden .............
Kurzfristige Rückstellungen........
Verbindlichkeiten aus
Lieferungen und Leistungen.......
Verbindlichkeiten aus
Ertragsteuern..........................
Kurzfristige
Finanzverbindlichkeiten .............
Sonstige kurzfristige
Verbindlichkeiten .....................
Verbindlichkeiten gegenüber
Anteilseignern .........................
Rechnungsabgrenzungsposten ...
Bilanzsumme.........................
34
Zum
17. Dezember
2014
Zum
31. Dezember
2013
(in Tausend g)
(geprüft)
Zum
31. Dezember
2012
401.471
230
387.144
409.034
173
395.877
367.071
15
353.432
480
200
229
4.374
3.583
3.839
6.614
2.629
47.722
7.002
2.199
54.609
6.937
2.619
54.646
6.420
6.626
7.152
827
1.518
831
319
424
1.327
7.472
1.726
7.592
31.556
449.193
5.276
32.886
463.643
5.796
39.229
421.717
61.803
316.548
61.600
323.585
61.046
295.919
4.034
3.311
3.724
2.222
3.552
2.255
307.883
1.320
70.842
1.328
316.936
703
78.458
374
289.609
503
64.752
316
4.771
6.720
7.198
374
168
86
21.567
21.491
23.700
3.363
1.642
3.133
38.659
780
449.193
47.272
791
463.643
29.698
621
421.717
Kombinierte Kapitalflussrechnung
Die nachfolgende Tabelle stellt ausgewählte Finanzinformationen aus
unserer kombinierten Kapitalflussrechnung für das zum 17. Dezember
2014 endende Rumpfgeschäftsjahr und die zum 31. Dezember 2013
und 2012 endenden Geschäftsjahre dar:
Für das
Rumpfgeschäftsjahr
endend zum
17. Dezember
2014
(in
Cashflow aus der
betrieblichen Tätigkeit ....
Cashflow aus der
Investitionstätigkeit ........
Cashflow aus der
Finanzierungstätigkeit ....
Zahlungsmittel und
Zahlungsmitteläquivalente
zu Beginn des
Berichtszeitraums ............
Zahlungsmittel und
Zahlungsmitteläquivalente
am Ende des
Berichtszeitraums ............
Für das
Geschäftsjahr
endend zum
31. Dezember
2013
Tausend g)
(geprüft)
Für das
Geschäftsjahr
endend zum
31. Dezember
2012
39.525
37.028
32.271
(3.014)
(1.370)
(4.382)
(40.501)
(46.409)
(15.694)
19.455
30.204
18.010
15.465
19.455
30.204
Konzern-Gewinn- und Verlustrechnung
Die nachfolgende Tabelle stellt ausgewählte Finanzinformationen aus
unserer Konzern-Gewinn- und Verlustrechnung für das zum
31. Dezember 2014 endende Geschäftsjahr (einschließlich der
Vergleichszahlen für das zum 31. Dezember 2013 endende
Geschäftsjahr) und den zum 31. März 2015 endenden
Dreimonatszeitraum (einschließlich der Vergleichszahlen für den am
31. März 2014 endenden Dreimonatszeitraum) dar:
Umsatzerlöse .................
Sonstige Erträge .............
Personalaufwand.............
Sonstige Aufwendungen ...
Betriebsergebnis vor
Zinsen, Steuern,
Abschreibungen und
Amortisation (EBITDA) ...
Abschreibungen und
Amortisation ...................
Betriebsergebnis (EBIT)..
Ergebnisse aus at-equity
bilanzierten Finanzanlagen
Finanzerträge .................
Finanzaufwendungen .......
Bewertung von Zinsswaps
Finanzergebnis..............
Ergebnis vor Steuern .....
Ertragsteuern .................
Gesamtergebnis für die
Berichtsperiode .............
Den Anteilseignern von
CHORUS Clean Energy
AG zurechenbares
Ergebnis.......................
Minderheitsbeteiligungen
zurechenbares Ergebnis .
35
Für den
Für den
Dreimonats- DreimonatsFür das
Für das
zeitraum
zeitraum
Geschäftsjahr Geschäftsjahr
endend
endend
endend zum endend zum
zum
zum
31. Dezember 31. Dezember
31. Marz
31. Marz
2014
2013
2015
2014
(in Tausend g)
(geprüft)
(ungeprüft)
3.349
3.574
12.365
267
930
294
505
83
(2.149)
(2.117)
(559)
(504)
(3.419)
(951)
(4.467)
(178)
(1.289)
800
7.844
(332)
(74)
(1.363)
(47)
753
(5.479)
2.365
(15)
(347)
4
269
(141)
132
(1.231)
(359)
0
110
(80)
30
783
(188)
152
(2.255)
(192)
(2.295)
70
(498)
0
(65)
(65)
(412)
106
(1.590)
595
(428)
(306)
(1.598)
595
(428)
(306)
8
0
-
-
Konzernbilanz
Die nachfolgende Tabelle stellt ausgewählte Finanzinformationen aus
unserer Konzernbilanz zum 31. Dezember 2014 (einschließlich der
Vergleichszahlen zum 31. Dezember 2013) und zum 31. März 2015 dar:
Zum
31. Dezember
2014
Zum
31. Dezember
2013
(in Tausend g)
(geprüft)
(ungeprüft)
457.343
260
452.450
181.149
252.521
173
23
178.483
250.204
480
-
541
4.374
18.819
51.961
58
6
9.390
4.712
18.510
50.410
6.420
826
1.974
654
9.014
402
1.327
5.896
4.792
6.098
37.290
509.304
866
9.650
7.697
28.505
502.860
50
2.269
250
25
3.873
17.449
103.663
144
1.840
5.855
-
-
115.645
-
-
123.819
25
350.108
35.352
509.304
4.148
11
4
5.487
9.650
123.096
25
343.002
36.737
502.860
(geprüft)
AKTIVA
Langfristige Vermögenswerte .....
Immaterielle Vermögenswerte und
Firmenwert ................................
Sachanlagen ..............................
Finanzanlagen in
Eigenkapitalinstrumente................
Langfristige finanzielle
Vermögenswerte .........................
Latente Steueransprüche ..............
Kurzfristige Vermögenswerte ......
Forderungen aus Lieferungen und
Leistungen und sonstige
Forderungen ..............................
Forderungen aus Ertragsteuern......
Kurzfristige finanzielle
Vermögenswerte .........................
Kurzfristige nicht-finanzielle
Vermögenswerte .........................
Liquide Mittel .............................
Bilanzsumme ............................
PASSIVA
Eigenkapital
Gezeichnetes Kapital ...................
Kapitalrücklagen .........................
Neubewertungsrücklage ...............
Gewinnrücklagen ........................
Noch nicht eingetragene
Bareinlagen ...............................
Noch nicht eingetragene
Sacheinlagen .............................
Den Anteilseignern von CHORUS
Clean Energy AG zurechenbares
Eigenkapital..............................
Minderheitsbeteiligungen ..............
Langfristige Schulden ................
Kurzfristige Schulden ................
Bilanzsumme ............................
36
Zum
31. März
2015
Konzern-Kapitalflussrechnung
Die nachfolgende Tabelle stellt ausgewählte Finanzinformationen aus
unserer Konzern-Kapitalflussrechnung für das zum 31. Dezember 2014
endende Geschäftsjahr (einschließlich der Vergleichszahlen für das
zum 31. Dezember 2013 endende Geschäftsjahr) und den zum
31. März 2015 endenden Dreimonatszeitraum (einschließlich der
Vergleichszahlen für den zum 31. März 2014 endenden
Dreimonatszeitraum) dar:
Für den
Für den
Dreimonats- DreimonatsFür das
Für das
zeitraum
zeitraum
Geschäftsjahr Geschäftsjahr
endend
endend
endend zum endend zum
zum
zum
31. Dezember 31. Dezember
31. Marz
31. Marz
2014
2013
2015
2014
(in Tausend g)
(geprüft)
(ungeprüft)
Cashflow aus der
betrieblichen Tätigkeit ....
Cashflow aus der
Investitionstätigkeit........
Cashflow aus der
Finanzierungstätigkeit ....
Zahlungsmittel und
Zahlungsmitteläquivalente
zu Beginn des
Berichtszeitraums ............
Zahlungsmittel und
Zahlungsmitteläquivalente
am Ende des
Berichtszeitraums ............
Wesentliche
Veränderungen der
Finanzlage und des
Betriebsergebnisses
des Emittenten in oder
nach dem von den
wesentlichen
historischen
Finanzinformationen
abgedeckten Zeitraum.
4.528
(6.608)
14.638
(140)
4.354
(3.847)
219
(1)
1.168
4.422
(7.770)
228
866
3.191
21.199
866
21.199
866
13.935
1.312
Vom 31. März 2015 bis zum Datum dieses Prospekts gab es keine
wesentlichen
Veränderungen
der
Finanzlage
und
des
Betriebsergebnisses
der
Gesellschaft.
Umsatzerlöse
und
Betriebsergebnisse, die gute Indikatoren für die Entwicklung unserer
Finanz- und Ertragslage sind, haben sich in den am 31. März 2015 und
2014 abgelaufenen Dreimonatszeiträumen (auf konsolidierter Basis), in
dem am 17. Dezember 2014 abgelaufenen Rumpfgeschäftsjahr und
den am 31. Dezember 2013 und 2012 abgelaufenen Geschäftsjahren
(auf kombinierter Basis) sowie dem am 31. Dezember 2014
abgelaufenen Geschäftsjahr (auf konsolidierter Basis) wie folgt
entwickelt:
Dreimonatszeiträume zum 31. März 2015 und 2014
Die Umsatzerlöse stiegen von e267 Tausend in dem am 31. März 2014
endenden Dreimonatszeitraum auf e12.365 Tausend in dem am
31. März 2015 endenden Dreimonatszeitraum. Dieser Anstieg ist den
74 Holding- und Betriebsgesellschaften zuzuschreiben, die im Rahmen
der Reorganisation der CHORUS Gruppe im Dezember 2014 von
verschiedenen deutschen Kommanditgesellschaften in die Gesellschaft
eingebracht wurden. In dem am 31. März 2015 endenden
Dreimonatszeitraum stiegen die Stromerlöse auf e10.210 Tausend.
In dem am 31. März 2014 endenden Dreimonatszeitraum wurden
keine
Stromerlöse
erzielt.
Die
Umsatzerlöse
aus
Anlagenverwaltungsdienstleistungen stiegen um e1.888 Tausend von
e267 Tausend in dem am 31. März 2014 endenden
Dreimonatszeitraum auf e2.155 Tausend in dem am 31. März 2015
endenden Dreimonatszeitraum. Aufgrund der oben beschriebenen
Umsatzsteigerungen stieg das EBITDA von einem negativen EBITDA in
Höhe von e332 Tausend in dem am 31. März 2014 endenden
Dreimonatszeitraum auf ein positives EBITDA in Höhe von
e7.844 Tausend in dem am 31. März 2015 endenden
Dreimonatszeitraum.
37
Die langfristigen Vermögenswerte sanken um e4.893 Tausend, oder
1,1%, von e457.343 Tausend zum 31. Dezember 2014 auf
e452.450 Tausend zum 31. März 2015. Die kurzfristigen
Vermögenswerte sanken um e1.551 Tausend, oder 3,0%, von
e51.961 Tausend zum 31. Dezember 2014 auf e50.410 Tausend zum
31. März 2015. Langfristige Verbindlichkeiten sanken um
e7.106 Tausend, oder 2,0%, von e350.108 Tausend zum 31. Dezember
2014 auf e343.002 Tausend zum 31. März 2015. Kurzfristige
Verbindlichkeiten stiegen um e1.385 Tausend, oder 3,9%, von
e35.352 Tausend zum 31. Dezember 2014 auf e36.737 Tausend zum
31. März 2015.
Rumpfgeschäftsjahr zum 17. Dezember 2014 und Geschäftsjahre zum
31. Dezember 2013 und 2012 auf der Grundlage der Kombinierten
Abschlüsse
Die Gesamtumsätze stiegen um e5.326 Tausend, oder 10,7%, von
e49.657 Tausend in dem am 31. Dezember 2013 beendeten
Geschäftsjahr auf e54.983 Tausend in dem am 17. Dezember 2014
beendeten Rumpfgeschäftsjahr. Die Umsätze aus der Stromerzeugung
stiegen um e5.150 Tausend, oder 10,6%, von e48.814 Tausend im
Geschäftsjahr 2013 auf e53.964 Tausend im Rumpfgeschäftsjahr 2014.
Diese Steigerung war in erster Linie eine Folge höherer Umsätze aus
dem Stromverkauf in Deutschland und Österreich, der im
Rumpfgeschäftsjahr 2014 im Vergleich zum Geschäftsjahr 2013 um
e4.450 Tausend bzw. e1.097 Tausend wuchs. Die Umsätze aus
Anlagenverwaltung stiegen um e176 Tausend, oder 20,9%, von
e843 Tausend im Geschäftsjahr 2013 auf e1.019 Tausend im
Rumpfgeschäftsjahr 2014. Diese Steigerung war eine Folge zusätzlich
generierter Honorare in Deutschland. Das EBITDA wuchs um
e4.601 Tausend, oder 12,1%, von e38.129 Tausend im Geschäftsjahr
2013 auf e42.730 Tausend im Rumpfgeschäftsjahr 2014 aufgrund der
oben beschriebenen Umsatzsteigerungen und insgesamt rückläufiger
Personal- und sonstiger Ausgaben.
Die Gesamtumsätze stiegen um e5.909 Tausend, oder 13,5%, von
e43.748 Tausend in dem am 31. Dezember 2012 beendeten
Geschäftsjahr auf e49.657 Tausend in dem am 31. Dezember 2013
beendeten Geschäftsjahr. Die Umsätze aus der Stromerzeugung
stiegen um e6.118 Tausend, oder 14,3%, von e42.696 Tausend im
Geschäftsjahr 2012 auf e48.814 Tausend im Geschäftsjahr 2013. Diese
Steigerung
war
in
erster
Linie
eine
Folge
höherer
Stromerzeugungsumsätze aus unserem Geschäft in Italien und, in
geringerem
Maße,
in
Deutschland,
und
erstmaliger
Stromerzeugungsumsätze aus unserem Geschäft in Frankreich und
Österreich. Die Umsätze aus Anlagenverwaltung gingen um
e209 Tausend von e1.052 Tausend im Geschäftsjahr 2012 auf
e843 Tausend im Geschäftsjahr 2012 zurück. Das EBITDA wuchs um
e4.472 Tausend, oder 13,3%, von e33.657 Tausend im Geschäftsjahr
2012 auf e38.129 Tausend im Geschäftsjahr 2013 aufgrund der oben
beschriebenen Umsatzsteigerungen und leicht rückläufiger Personalund sonstiger Aufwendungen.
Die langfristigen Vermögenswerte sanken um e7.563 Tausend, oder
1,8%, von e409.034 Tausend zum 31. Dezember 2013 auf
e401.471 Tausend zum 17. Dezember 2014. Die kurzfristigen
Vermögenswerte sanken um e6.887 Tausend, oder 12,6%, von
e54.609 Tausend zum 31. Dezember 2013 auf e47.722 Tausend zum
17. Dezember 2014. Die langfristigen Verbindlichkeiten sanken um
e7.037 Tausend, oder 2,2%, von e323.585 Tausend zum 31. Dezember
2013 auf e316.548 Tausend zum 17. Dezember 2014. Die kurzfristigen
Verbindlichkeiten sanken um e7.616 Tausend, oder 9,7%, von
38
e78.458 Tausend zum 31. Dezember 2013 auf e70.842 Tausend zum
17. Dezember 2014.
Das am 31. Dezember 2014 endende Geschäftsjahr und das am
31. Dezember 2013 endende Geschäftsjahr, basierend auf dem
Konzernabschluss 2014
Die Umsätze gingen um e225 Tausend, oder 6,3%, von
e3.574 Tausend im am am 31. Dezember 2013 endenden
Geschäftsjahr auf e3.349 Tausend im am 31. Dezember 2014
endenden Geschäftsjahr zurück. Das EBITDA ging um e2.089 Tausend
von e800 Tausend im am 31. Dezember 2013 endenden Geschäftsjahr
auf einen negativen Wert von e1.289 Tausend im am 31. Dezember
2014 endenden Geschäftsjahr zurück. Der Rückgang folgte in erster
Linie aus einem wesentlichen Anstieg sonstiger Ausgaben, die von
e951 Tausend im am 31. Dezember 2013 endenden Geschäftsjahr auf
e3.419 Tausend im am 31. Dezember 2014 endenden Geschäftsjahr
anstiegen, aufgrund höherer Verwaltungsausgaben im Zusammenhang
mit der Umstrukturierung der CHORUS-Gruppe. Der Rückgang des
EBITDA wurde nur zum Teil durch eine Steigerung sonstiger Erträge
kompensiert, die von e294 Tausend im am 31. Dezember 2013
endenden Geschäftsjahr auf e930 Tausend im am 31. Dezember 2014
endenden Geschäftsjahr anstiegen.
Die langfristigen Vermögenswerte stiegen um e457.083 Tausend, von
e260 Tausend zum 31. Dezember 2013 auf e457.343 Tausend zum
31. Dezember 2014. Die kurzfristigen Vermögenswerte stiegen um
e42.571 Tausend von e9.390 Tausend zum 31. Dezember 2013 auf
e51.961 Tausend zum 31. Dezember 2014. Die langfristigen
Verbindlichkeiten stiegen um e350.104 Tausend, von e4 Tausend zum
31. Dezember 2013 auf e350.108 Tausend zum 31. Dezember 2014.
Die kurzfristigen Verbindlichkeiten stiegen um e29.865 Tausend, von
e5.487 Tausend zum 31. Dezember 2013 auf e35.352 Tausend zum
31. Dezember 2014.
Aktuelle Entwicklungen
Die Entwicklung in den ersten fünf Monaten des Jahres 2015 verlief
entsprechend den Erwartungen des Vorstands. Im Geschäftszweig
„Stromerzeugung‘‘ kam es zu keinen neuen Investitionen, aber es
konnten dennoch stabile Kapitalflüsse generiert werden. Der
Geschäftszweig „Anlagenverwaltung‘‘ setzte sein gemäßigtes
Umsatzwachstum fort und konnte weitere Gewinnsteigerungen
erzielen.
Es gab keine wesentliche Veränderung in unserer Finanzlage und
Handelsposition seit dem 31. März 2015.
B.8
Ausgewählte
wesentliche
Pro-Forma-Finanzinformationen.
Die
nachfolgenden
ausgewählten
Pro
Forma
KonzernFinanzinformationen entstammen den Pro Forma KonzernFinanzinformationen, die die Gesellschaft für Zwecke dieses Prospekts
erstellt hat und die aus Pro Forma Konzern-Gewinn- und
Verlustrechnung für das zum 31. Dezember 2014 endende
Geschäftsjahr und Pro Forma Erläuterungen bestehen (zusammen, die
„Pro Forma Konzern-Finanzinformationen‘‘).
Der Zweck der Pro Forma Finanzinformationen ist es, die wesentlichen
Auswirkungen darzustellen, die der Erwerb und die Integration der
CHORUS GmbH und ihrer mittelbaren und unmittelbaren
Tochtergesellschaften, sowie weiterer 74 Holding- und operativ-tätigen
Gesellschaften in die CHORUS Gruppe auf die Ertragslage der
CHORUS Gruppe gehabt hätte, wenn die CHORUS Gruppe in der
Struktur, wie sie durch diese Erwerbe entstanden ist, bereits seit dem
1. Januar 2014 bestanden hätte.
39
Die Darstellung der Pro Forma Konzern-Finanzinformationen beruht auf
bestimmten Pro Forma Annahmen und ist ausschließlich zu illustrativen
Zwecken gedacht. Insbesondere für Zwecke der Pro Forma KonzernGewinn- und Verlustrechnung der Gesellschaft für den Zeitraum vom
1. Januar 2014 bis zum 31. Dezember 2014 nehmen die Pro Forma
Konzern-Finanzinformationen an, dass die Einbringungen am 1. Januar
2014 erfolgt sind.
Dementsprechend beschreiben die Pro Forma Finanzinformationen
lediglich eine hypothetische Situation und spiegeln folglich aufgrund
ihrer Wesensart nicht die tatsächliche Ertragslage der CHORUS
Gruppe nach Vollzug der unterschiedlichen Erwerbe wider. Weiterhin
stellen die Pro Forma Konzern-Finanzinformationen keine Prognose
der Vermögens-, Finanz- und Ertragslage der CHORUS Gruppe zu
einem zukünftigen Zeitpunkt dar.
Pro Forma Konzern-Gewinn- und Verlustrechnung für den
Zeitraum vom 1. Januar 2014 bis zum 31. Dezember 2014
Die nachstehende Tabelle fasst die Anpassungen hinsichtlich der
historischen Finanzinformationen des ursprünglichen CHORUS GmbH
Konzerns für den Zeitraum vom 1. Januar 2014 bis zum 31. Dezember
2014 zusammen.
1. Januar bis
31. Dezember 2014
(in Tausend g)
Historische
Operativ und als
CHORUS GmbH Holding agierende
Gruppe und
ZweckgesellCHORUS AG
schaften
Umsatzerlöse ...........
Sonstige Erträge .......
Personalaufwand.......
Sonstige
Aufwendungen..........
Abschreibungen und
Amortisation .............
Betriebsergebnis .....
Finanzerträge ...........
Finanzaufwendungen .
Finanzergebnis
(-verlust) ................
Ergebnis vor
Steuern ..................
Ertragsteuern ...........
Ergebnis nach
Steuern ..................
B.9
Gewinnprognosen
oder -schätzungen.
B.10 Beschränkungen im
Bestätigungsvermerk
zu den historischen
Finanzinformationen.
B.11 Geschäftskapital des
Emittenten zur
Erfüllung bestehender
Anforderungen nicht
ausreichend.
Summe
Neue
Pro forma CHORUS
Anpassungen Gruppe
3.349
930
(2.149)
54.075
1.490
0
57.424
2.420
(2.149)
(2.441)
(489)
0
2.850
715
54.983
1.931
(2.149)
(3.419)
(11.467)
(14.886)
3.565
(11.321)
(74)
(1.363)
273
(17.678)
26.420
2.082
(17.752)
25.057
2.355
(2.607)
(1.972)
(1.785)
193
5.419
(20.359)
23.085
570
(141)
(21.257)
(21.398)
5.612
(15.786)
132
(19.175)
(19.043)
3.827
(15.216)
(1.231)
(359)
7.245
(732)
6.014
(1.091)
1.855
(1.840)
7.869
(2.931)
(1.590)
6.513
4.923
15
4.938
Entfällt. Die Gesellschaft hat keine Gewinnprognose oder -schätzung
abgegeben.
Entfällt. Die in diesem Prospekt enthaltenen historischen
Finanzinformationen
wurden
mit
uneingeschränkten
Bestätigungsvermerken versehen.
Entfällt. Die Gesellschaft ist der Ansicht, dass ihr Geschäftskapital
ausreicht, um die bestehenden Anforderungen von CHORUS (d.h.
mindestens die Anforderungen in den zwölf Monaten ab dem Datum
dieses Prospekts) zu erfüllen.
40
ABSCHNITT C – WERTPAPIERE
C.1
Art und Gattung der
angebotenen und/oder
zum Handel
zuzulassenden
Wertpapiere.
Das Angebot (das „Angebot‘‘) bezieht sich auf eine Gesamtzahl von
14.647.312 auf den Inhaber lautende Stammaktien ohne Nennbetrag
(Stückaktien), jede dieser Stückaktie mit einem anteiligen Betrag des
Grundkapitals von e1,00 und voller Gewinnberechtigung ab dem
1. Januar 2015, und setzt sich zusammen aus
•
12.000.000 neu ausgegebenen, auf den Inhaber lautenden
Stammaktien ohne Nennbetrag aus der Kapitalerhöhung gegen
Bareinlage, die von der außerordentlichen Hauptversammlung
vom 20. Mai 2015 beschlossen wurde, unter Ausschluss von
Bezugsrechten der bestehenden Aktionäre (die „Neuen Aktien‘‘),
•
737.384 auf den Inhaber lautenden Stammaktien ohne Nennbetrag
aus dem Eigentum von insgesamt 80 Gesellschaftern von 13 von
der
CHORUS-Gruppe
als
Fonds
aufgesetzten
Kommanditgesellschaften4 (die „Fonds KGs‘‘), die durch
Übertragung und Sachausschüttungen der derzeit von den oben
genannten Fonds KGs gehaltenen Angebotenen Bestehenden
Aktien an sie vor Abschluss des Angebots unmittelbare Aktionäre
der Gesellschaft werden (diese Personen mit Verkaufsoptionen
jeweils einzeln ein „Verkaufender Aktionär‘‘ und zusammen die
„Verkaufenden Aktionäre‘‘, und die von den Verkaufenden
Aktionären angebotenen Aktien die „Angebotenen Bestehenden
Aktien‘‘),
•
1.909.928 auf den Inhaber lautenden Stammaktien aus dem
Aktienbesitz der CHORUS CleanTech Solar GmbH & Co. KG,
CHORUS CleanTech Solar GmbH & Co. 2. KG, CHORUS
CleanTech Solar GmbH & Co. 3. KG, CHORUS CleanTech
Solar GmbH & Co. 4. KG, CHORUS CleanTech Solar GmbH & Co.
5. KG, CHORUS CleanTech Solar GmbH & Co. 6. KG, CHORUS
CleanTech Solar GmbH & Co. 7. KG, CHORUS CleanTech
Solar GmbH & Co. 8. KG, CHORUS CleanTech Solar
PP GmbH & Co. 3. KG, CHORUS CleanTech Solar
PP GmbH & Co. 4. KG, CHORUS CleanTech Solar
PP GmbH & Co. 5. KG, CHORUS CleanTech Wind
PP GmbH & Co. 6. KG, CHORUS CleanTech Wind
PP GmbH & Co. 7. KG, CHORUS CleanTech Wind
PP GmbH & Co. 9. KG, CHORUS CleanTech Solar
PP GmbH & Co. 12. KG, CHORUS CleanTech Wind GmbH & Co.
10. KG, CHORUS CleanTech Wind GmbH & Co. 11. KG, CHORUS
CleanTech Portfolio GmbH & Co. KG, CHORUS Equity
CleanTech GmbH & Co. KG und CHORUS Equity
CleanTech GmbH & Co. 2. KG (diese Aktionäre zusammen die
„Verleihenden Aktionäre‘‘) in Zusammenhang mit einer
möglichen Mehrzuteilung (diese Aktien der Verleihenden
Aktionäre, die „Mehrzuteilungsaktien‘‘, und zusammen mit den
Neuen Aktien und den Angebotenen Bestehenden Aktien, die
„Angebotsaktien‘‘).
4
Dies sind: CHORUS CleanTech Solar GmbH & Co. KG, CHORUS CleanTech Solar GmbH & Co. 2. KG,
CHORUS CleanTech Solar GmbH & Co. 3. KG, CHORUS CleanTech Solar GmbH & Co. 4. KG,
CHORUS CleanTech Solar GmbH & Co. 6. KG, CHORUS CleanTech Solar GmbH & Co. 7. KG,
CHORUS CleanTech Solar GmbH & Co. 8. KG, CHORUS CleanTech Wind GmbH & Co. 10. KG,
CHORUS CleanTech Wind GmbH & Co. 11. KG, CHORUS CleanTech Wind PP GmbH & Co. 9. KG,
CHORUS Equity CleanTech GmbH & Co. 2. KG, CHORUS CleanTech Solar PP GmbH & Co. 5. KG und
CHORUS CleanTech Solar PP GmbH & Co. 13. KG.
41
Wertpapierkennung.
C.2
C.3
Währung.
Zahl der
ausgegebenen und
voll eingezahlten
Aktien.
Nennwert.
C.4
Mit den Wertpapieren
verbundene Rechte.
C.5
Beschreibung aller
etwaigen
Beschränkungen für
die freie
Übertragbarkeit der
Wertpapiere.
Antrag auf Zulassung
der Wertpapiere zum
Handel in einem
geregelten Markt und
Nennung aller
geregelten Märkte, an
denen die Wertpapiere
gehandelt werden
sollen.
C.6
C.7
Dividendenpolitik.
Die Börsenzulassung im regulierten Markt (Prime Standard) der
Frankfurter Wertpapierbörse bezieht sich auf bis zu 12.000.000 Neue
Aktien und 17.448.539 bestehende Inhaberaktien der Gesellschaft
(bestehendes Grundkapital), jeweils mit einem anteiligen Betrag des
Grundkapitals von e1,00 je Stückaktie und voller Gewinnberechtigung
ab dem 1. Januar 2015.
International Securities Identification Number (ISIN): DE000A12UL56
Wertpapierkennnummer (WKN): A12UL5
Common Code: 122487342
Wertpapiersymbol: CU1
Euro.
Zum Datum dieses Prospekts sind 17.448.539 Stammaktien ohne
Nennbetrag ausgegeben und vollständig eingezahlt worden.
Die Aktien der Gesellschaft werden durch mehrere Globalurkunden
repräsentiert (die „Globalurkunden‘‘), die bei der Clearstream Banking
Aktiengesellschaft,
Mergenthalerallee
61,
65760
Eschborn,
Deutschland, hinterlegt sind bzw. werden.
Jede Aktie der Gesellschaft repräsentiert einen anteiligen Betrag des
Grundkapitals der Gesellschaft von e1,00.
Jede Aktie der Gesellschaft berechtigt den Aktionär zur Abgabe einer
Stimme in der Hauptversammlung der Gesellschaft. Die
Angebotsaktien sind für das am 1. Januar 2015 beginnende
Geschäftsjahr und alle nachfolgenden Geschäftsjahre voll
gewinnanteilsberechtigt.
Entfällt. Die Aktien der Gesellschaft sind frei übertragbar.
Die Gesellschaft wird die Zulassung der Neuen Aktien und der
bestehenden Aktien der Gesellschaft zum regulierten Markt mit
gleichzeitiger Zulassung zum Teilbereich des regulierten Marktes mit
weiteren Zulassungsfolgepflichten (Prime Standard) an der Frankfurter
Wertpapierbörse am oder um den 22. Juni 2015 beantragen. Der
Zulassungsbeschluss für die Aktien der Gesellschaft wird
voraussichtlich am oder um den 2. Juli 2015 erteilt. Der Handel mit den
Aktien der Gesellschaft an der Frankfurter Wertpapierbörse wird
voraussichtlich am 3. Juli 2015 beginnen.
Falls im Rahmen der Ausübung der Greenshoe Option (wie
nachstehend in E.3 definiert) zusätzliche Aktien der Gesellschaft
ausgegeben werden, wird die Gesellschaft auch die Zulassung dieser
zusätzlichen Aktien der Gesellschaft zum regulierten Markt der
Frankfurter Wertpapierbörse mit gleichzeitiger Zulassung zum
Teilbereich des regulierten Marktes (Prime Standard) an der Frankfurter
Wertpapierbörse beantragen. Die Zulassung wird auf der Grundlage
einer Ausnahme von der Pflicht zur Veröffentlichung eines Prospekts
gemäß § 4 Abs. 2 Nr. 1 Wertpapierprospektgesetz beantragt.
Ab dem Geschäftsjahr 2015 beabsichtigt die Gesellschaft eine stabile
jährliche
Dividende
auszuschütten,
die
mindestens
mit
branchenüblichen Dividenden vergleichbar ist und die einen
wesentlichen Anteil ihres jährlichen ausschüttbaren Gewinns darstellt.
Da die Emittentin den wesentlichen Teil ihrer Tätigkeit durch direkte
oder indirekte Betriebsgesellschaften durchführt, hängt ihre Fähigkeit
zur Ausschüttung von Dividenden erheblich von den Gewinnen und
Ausschüttungen der Betriebsgesellschaften ab.
42
ABSCHNITT D – RISIKEN
D.1
Zentrale Risiken, die
dem Emittenten und
seiner Branche eigen
sind.
Regulatorische Risiken
•
Die Geschäftstätigkeit von CHORUS hängt von staatlichen
Anreizen für erneuerbare Energien ab.
•
Eine verspätete Inbetriebnahme von Anlagen oder Verspätungen
bei der Fertigstellung der Anlagen oder eine überdurchschnittlich
starke Kapazitätsausdehnung könnte zu einer niedrigeren
Vergütung für den in das Netz eingespeisten Strom oder zu einem
Ausfall der Vergütung aus Degressionsgründen führen.
•
Um Subventionen für Strom aus erneuerbaren Energien zu
erhalten, muss CHORUS möglicherweise hinsichtlich der Größe
der Anlagen oder ihrer maximalen Leistungsfähigkeit weitere oder
geänderte Kriterien erfüllen.
•
Staatliche Genehmigungen und Bebauungspläne für ErneuerbareEnergien-Projekte könnten angefochten werden.
•
Die Nichterfüllung von Anforderungen aus staatlichen
Genehmigungen für den Betrieb der Erneuerbare-EnergienAnlagen könnte zur Aufhebung der Genehmigung führen und
Genehmigungen könnten in ihrem Anwendungsbereich beschränkt
sein und Verpflichtungen zur Abschaltung oder andere
Bedingungen und Beschränkungen enthalten, die von CHORUS
erfüllt werden müssen.
•
Das Geschäft von CHORUS wird von diversen Gesetzen reguliert
und kann durch jegliche Gesetzesänderungen betroffen sein, die
zu zusätzlichen Ausgaben führen können.
Risiken im Zusammenhang mit dem
Geschäftstätigkeit der CHORUS-Gruppe
•
•
•
•
•
•
•
•
Markt
und
der
Der Ertrag und der erfolgreiche Betrieb der CHORUS Solar- und
Windparks hängt von den vorherrschenden Wetter- und
Klimabedingungen und dem Standort der jeweiligen Anlagen ab.
CHORUS könnte nicht in der Lage sein, passende
Investitionsmöglichkeiten in Solar- und Windparks (oder
verbundene Betriebsgesellschaften) zu finden und zu sichern.
Erwerbe von Solar- und Windparks (oder der verbundenen
Investmentvehikel (SPVs)) könnten sich als Fehlinvestitionen
herausstellen.
CHORUS könnte nicht in der Lage sein, neu erworbene
Gesellschaften erfolgreich in seinen bestehenden Betrieb
einzugliedern und könnte weiteren negativen Folgen aufgrund des
Erwerbs der Betriebsgesellschaften begegnen.
Im Hinblick auf erworbene Solar- und Windparks könnten die
Interessen von Co-Investoren und Joint Venture-Partnern
bezüglich dieser Parks den Interessen von CHORUS
zuwiderlaufen.
CHORUS ist aufgrund von im Bau befindlichen Projekten
technischen und regulatorischen Risiken ausgesetzt, die zu einer
Verzögerung der Fertigstellung, erhöhten Kosten und/oder
niederigerer Vergütung für Stromeinspeisung in das Netz führen
können.
CHORUS ist Risiken ausgesetzt, die sich aus Mängeln am
Baumaterial, Instandhaltungsproblemen, Störfällen, unerwarteten
Schäden, externen Einflüssen, Terrorattacken und anderer
höherer Gewalt, IT-Problemen (einschließlich Hacker-Attacken)
und anderen Faktoren im Hinblick auf die Erneuerbare-EnergienAnlagen ergeben.
Störungen der Netzanbindung könnten die Einspeisung von Strom
und die Profitabilität der Solar- und Windparks beeinträchtigen.
43
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Niedrige Preise für Energie aus konventionellen Energiequellen
könnten sich negativ auf CHORUS’ Ergebnisse aus
Stromverkäufen auswirken.
Eine hohe Inflationsrate könnte CHORUS’ Ergebnisse negativ
beeinflussen.
CHORUS könnte nicht in der Lage sein, in Zukunft weitere Fonds
für institutionelle Investoren aufzulegen oder Investitionen für
professionelle Investoren zu strukturieren. CHORUS kann
möglicherweise geplante Gebühren für die Fonds und die
Anlagenverwaltung sowie die Beratungsleistungen für den
CHORUS SICAV-SIF und andere Investitionsvehikel von
professionellen Investoren nicht realisieren.
Die CHORUS Gruppe hängt von den Mitgliedern des
Managements und anderem qualifizierten Personal ab.
Die Emittentin ist bezüglich ihrer Betriebsgrundstücke abhängig
von Nutzungsrechten, deren vorzeitige Kündigung zu
Einschränkungen ihrer Geschäftstätigkeit führen könnte.
CHORUS könnte für kontaminierte oder verschmutzte
Grundstücke und Gelände und die umliegende Gegend haftbar
sein, die von den Betriebsgesellschaften genutzt werden.
Das weitere Wachstum von CHORUS hängt von der Verfügbarkeit
von Projektfinanzierungen und erfolgreicher Kapitalbeschaffung
zum Erwerb von Anlagen zur regenerativen Energieerzeugung ab.
Sollten
CHORUS’
Betriebsgesellschaften,
die
Projektfinanzierungen
aufgenommen
haben,
ihren
Zinsverpflichtungen und Zahlungspflichten bezüglich laufender
Gebühren nicht nachkommen, könnten Vollstreckungsrechte der
Banken und Dienstleister ausgelöst werden.
Änderungen der Zinssätze bei CHORUS’ Finanzierungen könnten
zu einem Kostenanstieg führen.
Sollte CHORUS ihre Geschäftstätigkeit über den Euroraum hinaus
erweitern, könnten Wechselkursschwankungen ihre Finanzlage
beeinträchtigen.
Die Emittentin ist von den Ergebnissen ihrer Tochtergesellschaften
abhängig.
CHORUS ist abhängig von der Entwicklung und erfolgreichen
Einführung
von
Managementsystemen
für
die
Betriebsgesellschaften und Risikokontrollsystemen für die
gesamte CHORUS Gruppe und könnte zudem Schwierigkeiten
haben,
die
gestiegenen
IFRS-Anforderungen
und
Börsenberichtspflichten zu erfüllen.
CHORUS ist den Steuergesetzen und -verordnungen in
Deutschland und anderen Ländern unterworfen. Ihre Steuerlast
könnte infolge der zukünftigen steuerlichen Behandlung der
Dividendenausschüttung,
der
Nicht-Abzugsfähigkeit
von
Zinszahlungen, gegenwärtigen und zukünftigen Steuerprüfungen
oder Gerichtsverfahren aufgrund von Änderungen nationaler oder
ausländischer Steuergesetze und Doppelbesteuerungsabkommen
oder Änderungen in deren Anwendung oder Auslegung steigen.
CHORUS könnte verpflichtet sein, infolge von Steuerprüfungen
zusätzliche Steuern zu zahlen.
Im Zusammenhang mit dem Vertrieb von CHORUS initiierten
Fonds in der Vergangenheit, könnten Gesellschaften der CHORUS
Gruppe Schadenersatzansprüchen, einschließlich von Investoren
erhobenen Ansprüchen aus Prospekthaftung, Regressansprüchen
von Vertriebspartnern und Ansprüchen aufgrund falscher
Anlageberatung durch ihre Vertriebspartner, ausgesetzt sein.
Die Quartalsergebnisse der CHORUS Gruppe sind zyklisch und
Schwankungen unterworfen.
44
Risiken im Zusammenhang mit der Reorganisation der CHORUS
Gruppe vor dem IPO
•
Im Zusammenhang mit der Reorganisation der CHORUS Gruppe
könnte die Emittentin zur Zahlung von Schadensersatz oder zur
Rückabwicklung einzelner Einbringungen verpflichtet sein. Die
Emittentin könnte zudem unbekannte Haftungen übernommen
haben.
•
Erwartete Synergieeffekte aus der neuen Gruppenstruktur könnten
nicht, nicht im erwarteten Ausmaß oder später als erwartet
realisiert werden.
D.3
Zentrale Risiken, die
den Wertpapieren
eigen sind.
Risiken im Zusammenhang mit dem Angebot und den
Wertpapieren
•
Es gibt keinen existierenden Markt für die Aktien der Emittentin,
und ein aktiver Handelsmarkt für die Aktien der Emittentin könnte
sich nach dem Angebot nicht entwickeln.
•
Der Marktpreis der Aktien der Emittentin könnte signifikant vom
Angebotspreis abweichen und der Aktienkurs oder das
Handelsvolumen der Aktien der Emittentin könnte stark fluktuieren.
•
Jegliche zukünftigen Verkäufe der Aktien der Emittentin durch
Altaktionäre oder durch Investoren, die während des Angebots
Aktien erwerben, könnten den Marktpreis senken.
•
Die Interessen des Hauptaktionärs der Emittentin könnten von
denen der Emittentin oder denen seiner anderen Aktionäre
abweichen oder mit diesen in Widerspruch stehen.
•
Die Emittentin wird über einen weiten Ermessensspielraum
bezüglich der Verwendung des Nettoerlöses aus dem Angebot
verfügen, und der Aktienpreis könnte sinken, falls die Emittentin
diesen Erlös nicht effektiv einsetzen kann.
•
Die Emittentin könnte nicht in der Lage sein, zukünftig Dividenden
auszuschütten (oder könnte bei der Dividendenausschüttung
aufgrund von zukünftigen Finanzierungsverträgen beschränkt
sein).
•
Das Angebot könnte nicht stattfinden, und der Investor könnte
bereits gezahlte Wertpapierprovisionen verlieren und das Risiko zu
tragen haben, Leerverkäufe von Aktien nicht bedienen zu können.
•
Zukünftige Kapitalisierungsmaßnahmen könnten zu einer
erheblichen Verwässerung, d.h. einer Wertminderung der Aktien
und Kontrollrechte von bestehenden Aktionärsanteilen bei der
Emittentin führen. Künftige Angebote von Eigen- oder
Fremdkapitalsicherheiten könnten sich negativ auf den Marktpreis
der Aktien der Emittentin auswirken.
•
Investoren mit einer anderen Referenzwährung als dem Euro
könnten bei einer Investition in die Aktien der Emittentin gewissen
Fremdwährungsrisiken unterworfen sein.
•
Aktionäre außerhalb Deutschlands könnten nicht in der Lage sein,
an zukünftigen Aktienangeboten zu partizipieren.
ABSCHNITT E—ANGEBOT
E.1
Gesamtnettoerlöse.
Die Gesellschaft erhält den Erlös aus dem Angebot, der sich aus dem
Verkauf der Neuen Aktien (wie vorstehend in C.1 definiert) und, wenn
und soweit die Greenshoe Option ausgeübt wird, aus der Ausübung der
Greenshoe Option (wie nachfolgend in E.3 definiert), jeweils nach
Abzug von Gebühren und Provisionen, ergibt. Die Verkaufenden
Aktionäre (wie vorstehend in C.1 definiert) erhalten den Erlös aus dem
Angebot, der sich aus dem Verkauf der Angebotenen Bestehenden
Aktien (wie vorstehend in C.1 definiert) nach Abzug von Gebühren,
Provisionen und Kosten ergibt.
Die Höhe des Erlöses aus dem Angebot und die Kosten im
Zusammenhang mit dem Angebot sind vom endgültigen Angebotspreis,
45
der auch die Höhe der Provisionen der Konsortialbanken bestimmt, und
von der Anzahl der im Rahmen des Angebots platzierten Aktien
abhängig. Unter der Annahme, dass (i) alle Neuen Aktien und alle
Angebotenen Bestehenden Aktien zum Mittelwert der für das Angebot
festgelegten Preisspanne platziert werden und (ii) die Greenshoe
Option vollumfänglich ausgeübt wird, wird sich der Gesamtbruttoerlös
aus dem Angebot auf ungefähr e162,95 Mio. belaufen, die in Höhe von
e154,75 Mio. der Gesellschaft und in Höhe von e8,20 Mio. den
Verkaufenden Aktionären zuzurechnen sind.
Geschätzte
Die durch das Angebot der Neuen Aktien und der Angebotenen
Gesamtkosten des
Bestehenden Aktien und die Börsennotierung der Aktien der
Angebots und der
Gesellschaft entstehenden Kosten werden von der Gesellschaft sowie
Börsennotierung,
von den Verkaufenden Aktionären (wie vorstehend in C.1 definiert)
einschließlich der
gemäß ihres jeweiligen Anteils am Gesamtbruttoerlös getragen.
geschätzten Kosten,
Unter der Annahme, dass alle Neuen Aktien zum Mittelwert der
die dem Anleger vom Preisspanne platziert werden und die Greenshoe Option vollständig
Emittenten in
ausgeübt wird, liegen die von der Gesellschaft zu tragenden Kosten des
Rechnung gestellt
Angebots der Neuen Aktien und der Börsennotierung voraussichtlich
werden.
bei e10,30 Mio., einschließlich der Provisionen der Konsortialbanken
(entspricht 2,75% des Angebotspreises je Neuer Aktie, Angebotener
Bestehender Aktie und neuer von der Gesellschaft bei Ausübung der
Greenshoe Option (wie nachfolgend unter E.3 definiert) ausgegebener
Aktie plus bis zu 1% des Angebotspreises für diese Aktien als
ermessensabhängige Provision) in Höhe von e5,80 Mio. (unter
Annahme der vollständigen Gewährung der ermessensabhängigen
Provision in Bezug auf die Neuen Aktien und die Angebotenen
Bestehenden Aktien sowie bei Ausübung der Greenshoe Option) und
voraussichtlicher sonstiger Aufwendungen von e4,50 Mio. Unter den
vorgenannten Annahmen wird der Nettoerlös der Gesellschaft aus dem
Verkauf der Neuen Aktien und der Ausübung der Greenshoe Option,
d.h. der Bruttoerlös abzüglich der von der Gesellschaft zu tragenden
Kosten, voraussichtlich ca. e144,44 Mio. betragen.
Unter der Annahme, dass sämtliche Angebotenen Bestehenden Aktien
zum Mittelwert der Preisspanne platziert werden, schätzt die
Gesellschaft, dass die von den Verkaufenden Aktionären zu tragenden
Provisionen der Konsortialbanken in Höhe von e0,31 Mio. (unter
Annahme der vollständigen Gewährung der ermessensabhängigen
Provision in Bezug auf diese Aktien) liegen werden. Die Verkaufenden
Aktionäre werden zusätzlich den Anteil der übrigen Kosten tragen, der
auf das Angebot und die Börsennotierung der Angebotenen
Bestehenden Aktien entfällt. Die Gesellschaft schätzt, dass unter den
vorgenannten Annahmen der Nettoerlös der Verkaufenden Aktionäre
aus dem Verkauf der Angebotenen Bestehenden Aktien, d.h. der
Bruttoerlös abzüglich der von den Verkaufenden Aktionären zu
tragenden Kosten, voraussichtlich ca. e7,66 Mio. betragen wird.
Anlegern werden von der Gesellschaft oder den Konsortialbanken
keine Kosten in Rechnung gestellt.
E.2a Gründe für das
Die Gesellschaft beabsichtigt, die Neuen Aktien zu verkaufen und den
Angebot.
Großteil ihres Anteil an dem Gesamtnettoerlös aus dem Angebot von
Zweckbestimmung der e124,03 Mio. zur Finanzierung des Wachstums und der Entwicklung
Erlöse, geschätzte
ihres Geschäfts durch den Erwerb von neuen Erneuerbaren-EnergienNettoerlöse.
Anlagen
aus
der
vorhandenen
Pipeline
bestehender
Investitionsmöglichkeiten sowie, in geringerem Umfang, auch für den
Ausbau ihres Geschäftszweigs „Anlagenverwaltung‘‘ (beispielsweise
durch moderates Personalwachstum oder den Aufbau von
Vertriebsaktivitäten in neuen Märkten) zu nutzen. Ferner verspricht sich
die Gesellschaft durch die geplante Zulassung ihrer Aktien zum
regulierten Markt der Frankfurter Wertpapierbörse mit gleichzeitiger
46
E.3
Angebotskonditionen.
Zulassung zum Teilbereich des regulierten Marktes mit weiteren
Zulassungsfolgepflichten (Prime Standard) einen besseren Zugang
zum Kapitalmarkt.
Angebotsbedingungen
Dieses Angebot bezieht sich auf den Verkauf von 14.647.312 auf den
Inhaber lautenden Stammaktien ohne Nennbetrag (Stückaktien) der
CHORUS Clean Energy AG mit einem anteiligen Betrag am
Grundkapital von jeweils e1,00 und mit voller Dividendenberechtigung
ab dem 1. Januar 2015 und setzt sich zusammen aus:
•
12.000.000 neu ausgegebenen, auf den Inhaber lautenden
Stammaktien aus der Kapitalerhöhung im Zusammenhang mit dem
IPO (die Neuen Aktien, wie vorstehend definiert), die von der
außerordentlichen Hauptversammlung der Gesellschaft am
20. Mai 2015 beschlossen wurde;
•
737.384 Angebotene Bestehende Aktien (wie vorstehend definiert)
aus dem Eigentum der Verkaufenden Aktionäre (wie vorstehend
definiert); und
•
1.909.928 Mehrzuteilungsaktien (wie vorstehend definiert) aus
dem Aktienbesitz der Verleihenden Aktionäre (wie vorstehend
definiert) in Zusammenhang mit einer möglichen Mehrzuteilung
(die Mehrzuteilungsaktien zusammen mit den Neuen Aktien und
den Angebotenen Bestehenden Aktien, die Angebotsaktien,
jeweils wie vorstehend definiert).
Das Angebot besteht aus öffentlichen Angeboten in der Bundesrepublik
Deutschland („Deutschland‘‘) und der Republik Österreich
(„Österreich‘‘)
sowie
Privatplatzierungen
in
bestimmten
Rechtsordnungen außerhalb Deutschlands und Österreichs. Die Aktien
der Gesellschaft werden nur außerhalb der Vereinigten Staaten von
Amerika und nur im Rahmen von Offshore-Geschäften gemäß der
Regulation S nach dem U.S. Securities Act von 1933 in der derzeit
gültigen Fassung angeboten und verkauft.
Angebotszeitraum
Der Zeitraum, in dem Anleger ihre Kaufangebote für die Angebotsaktien
abgeben können, beginnt voraussichtlich am 22. Juni 2015 und endet
voraussichtlich am 1. Juli 2015 (der „Angebotszeitraum‘‘). Am letzten
Tag des Angebotszeitraums können Kaufangebote (i) von
Privatanlegern bis 12:00 Uhr (Mitteleuropäische Sommerzeit) („MESZ‘‘)
und (ii) von institutionellen Anlegern bis 14:00 Uhr MESZ abgegeben
werden.
Preisspanne und Angebotspreis
Die Preisspanne, innerhalb derer Kaufangebote abgegeben werden
dürfen, liegt bei e9,75 bis e12,50 je Angebotsaktie.
Sobald der Angebotszeitraum ausgelaufen ist, wird der Angebotspreis
von der Gesellschaft in Absprache mit dem Sole Global Coordinator auf
Grundlage des während des Bookbuilding Verfahrens erstellten
Orderbuches festgelegt. Dies wird voraussichtlich am oder um den
1. Juli 2015 stattfinden.
Änderung der Angebotskonditionen
Die Emittentin, gemeinsam mit dem Sole Global Coordinator, behält
sich vor, die Gesamtanzahl der Angebotsaktien zu erhöhen oder
abzusenken, das obere Limit und/ oder untere Limit der Preisspanne zu
erhöhen oder abzusenken und/oder den Angebotszeitraum zu
verlängern oder zu verkürzen. Änderungen der Anzahl der
Angebotsaktien, der Preisspanne oder eine Verlängerung
beziehungsweise Verkürzung des Angebotszeitraums haben keinen
Einfluss auf die Gültigkeit bereits abgegebener Kaufangebote. Für den
47
Fall, dass solch eine Änderung zu einer Veröffentlichung eines
Nachtrags zu diesem Prospekt führt, haben Anleger, die Kaufangebote
vor der Veröffentlichung eines Nachtrages abgegeben haben, gemäß
Wertpapierprospektgesetz das Recht, diese Angebote innerhalb von
zwei Werktagen nach Veröffentlichung des Nachtrags zu widerrufen.
Anstatt ihre Kaufangebote zu widerrufen, können Anleger diese
Kaufangebote, die vor Veröffentlichung des Nachtrages abgegeben
wurden, auch ändern oder neue beschränkte oder unbeschränkte
Kaufangebote innerhalb von zwei Werktagen nach Veröffentlichung des
Nachtrages abgeben. Soweit die Bedingungen dieses Angebots
geändert werden, wird dies in elektronischen Medien (wie zum Beispiel
Reuters oder Bloomberg) bekannt gegeben und, soweit vom
Wertpapierprospektgesetz oder der Börsenordnung an der Frankfurter
Wertpapierbörse verlangt, als Veröffentlichung von wesentlichen
Informationen über elektronisch betriebene Informationssysteme und
auf der Webseite der Emittentin sowie als Nachtrag zu diesem Prospekt
veröffentlicht. Eine individuelle Benachrichtigung der Anleger, die
Kaufangebote abgegeben haben, erfolgt nicht. Unter bestimmten
Umständen kann der Sole Global Coordinator, im Namen der
Konsortialbanken, vom Übernahmevertrag, der am 19. Juni 2015 mit
der Emittentin abgeschlossen wurde (der „Übernahmevertrag‘‘),
zurücktreten und zwar auch noch nach der Aufnahme des
Börsenhandels der Aktien der Emittentin im regulierten Markt der
Frankfurter Wertpapierbörse.
Lieferung und Abrechnung
Die Angebotsaktien werden voraussichtlich am 6. Juli 2015 gegen
Zahlung des Angebotspreises geliefert. Die Angebotsaktien werden
den Aktionären als Miteigentumsanteile an der jeweiligen
Globalurkunde zur Verfügung gestellt.
Stabilisierungsmaßnahmen, Mehrzuteilung und GreenshoeOption
Im Zusammenhang mit der Platzierung der Angebotsaktien handelt
Berenberg,
für
Rechnung
der
Konsortialbanken,
als
Stabilisierungsmanager (der „Stabilisierungsmanager‘‘) und kann als
solcher in Übereinstimmung mit den rechtlichen Bestimmungen (§ 20a
Abs. 3 Wertpapierhandelsgesetz in Verbindung mit Verordnung (EG)
Nr. 2273/2003 vom 22. Dezember 2003) Mehrzuteilungen vornehmen
und Stabilisierungsmaßnahmen ergreifen, um den Marktpreis der
Aktien der Gesellschaft zu stützen und dadurch einem etwaigen
Verkaufsdruck entgegenzuwirken.
Der Stabilisierungsmanager ist nicht zu Stabilisierungsmaßnahmen
verpflichtet. Es kann daher nicht zugesichert werden, dass
Stabilisierungsmaßnahmen
ergriffen
werden.
Sollten
Stabilisierungsmaßnahmen ergriffen werden, können diese jederzeit
ohne Vorankündigung beendet werden. Solche Maßnahmen können ab
dem Zeitpunkt der Aufnahme des Börsenhandels der Aktien der
Gesellschaft am regulierten Markt der Frankfurter Wertpapierbörse
vorgenommen werden und müssen spätestens am 30. Kalendertag
nach diesem Ereignis beendet sein (der „Stabilisierungszeitraum‘‘).
Diese Maßnahmen können dazu führen, dass der Börsenkurs der
Aktien der Gesellschaft höher ist, als es ohne solche Maßnahmen der
Fall gewesen wäre. Des Weiteren kann sich vorübergehend ein
Börsenkurs auf einem Niveau ergeben, das nicht von Dauer ist.
48
E.4
Wesentliche
Interessen an der
Emission/dem
Angebot,
einschließlich
Interessenkonflikten.
Bei möglichen Stabilisierungsmaßnahmen können Anlegern zusätzlich
zu den Neuen Aktien bis zu 1.909.928 Mehrzuteilungsaktien als Teil der
Zuteilung der Angebotsaktien zugeteilt werden („Mehrzuteilung‘‘). Zum
Zwecke einer solchen möglichen Mehrzuteilung werden dem
Stabilisierungsmanager für Rechnung der Konsortialbanken 1.909.928
Aktien der Gesellschaft aus dem Aktienbesitz der Verleihenden
Aktionäre in Form eines proportional zum Anteilsbesitz der jeweiligen
Gesellschaft vor dem Angebot gewährten Wertpapierdarlehens zur
Verfügung gestellt. Die Gesamtzahl der Mehrzuteilungsaktien wird
dabei 15,00% der Anzahl der Angebotsaktien ohne Mehrzuteilungen
nicht übersteigen. Die Gesellschaft räumt den Konsortialbanken eine
Option zur Zeichnung einer der Anzahl der Mehrzuteilungsaktien
entsprechenden Anzahl an Aktien der Gesellschaft zum Angebotspreis
abzüglich der vereinbarten Provisionen ein (die „Greenshoe Option‘‘),
die von der Gesellschaft aus dem genehmigten Kapital der Gesellschaft
ausgegeben würden. Die Greenshoe Option endet am 3. August 2015.
Die Konsortialbanken sind berechtigt, aber nicht verpflichtet, die
Greenshoe-Option in dem Umfang der ursprünglichen Mehrzuteilungen
von Aktien der Gesellschaft auszuüben.
Bei Beendigung des Stabilisierungszeitraums wird innerhalb einer
Woche in verschiedenen Medienerzeugnissen, die im gesamten
Europäischen Wirtschaftsraum vertrieben werden, eine Mitteilung, ob
es Stabilisierungsmaßnahmen gab, über Beginn und Ende der
Preisstabilisierungsmaßnahmen sowie über die Preisspanne dieser
Stabilisierungsmaßnahmen veröffentlicht. Letzteres wird jedes Mal
mitgeteilt, sobald Preisstabilisierungsmaßnahmen getroffen wurden.
Die Ausübung der Greenshoe Option, der zeitliche Ablauf der
Ausübung und die Anzahl und Art der betroffenen Aktien der
Gesellschaft werden unverzüglich in derselben Weise bekannt
gemacht.
Im Zusammenhang mit dem Angebot und der Zulassung zum Handel
der Aktien der Gesellschaft an der Frankfurter Wertpapierbörse
befinden sich die Konsortialbanken in einer vertraglichen Beziehung mit
der Gesellschaft. Die Konsortialbanken handeln bei dem Angebot im
Auftrag der Gesellschaft und koordinieren dessen Strukturierung und
Durchführung. Des Weiteren wurden die Underwriters als Designated
Sponsors für die Aktien der Gesellschaft und Bankhaus Neelmeyer AG
als Zahlstelle ernannt. Nach erfolgreichem Abschluss des Angebots
erhalten die Konsortialbanken eine Provision. Aufgrund dieser
vertraglichen Beziehungen haben die Konsortialbanken ein finanzielles
Interesse am Erfolg des Angebots.
Darüber hinaus können jede der Konsortialbanken und alle ihre jeweils
verbundenen Unternehmen als Anleger auf eigene Rechnung im
Rahmen des Angebots Aktien aus dem Angebot erwerben und diese
Aktien oder damit verbundene Anlagen in dieser Eigenschaft auf eigene
Rechnung halten, kaufen oder verkaufen und diese Aktien oder andere
Anlagen auch außerhalb des Angebots anbieten oder verkaufen.
Zudem können bestimmte Konsortialbanken oder die mit ihnen
verbundenen Unternehmen finanzielle Vereinbarungen (einschließlich
Swaps oder Differenzkontrakte) mit Investoren abschließen, im
Zusammenhang mit denen die Konsortialbanken (oder die mit ihnen
verbundenen Unternehmen) Aktien der Gesellschaft jeweils erwerben,
halten oder veräußern können. Keine der Konsortialbanken
beabsichtigt, solche Anlagen oder Transaktionen in einem weiteren
Umfang offenzulegen als demjenigen, zu dem sie aufgrund gesetzlicher
oder aufsichtsrechtlicher Vorschriften verpflichtet ist, bzw. in einem
weiteren Umfang als sie in diesem Prospekt offengelegt sind.
49
E.5
Die COMMERZBANK AG ist in die wertpapiermäßige Abwicklung der
Übertragung und Lieferung der Angebotenen Bestehenden Aktien im
Rahmen des Angebots für die Verkaufenden Aktionäre tätig und erhält
für diese Dienstleistungen eine Gebühr, die zu einem Teil von der
erfolgreichen Umplatzierung der Angebotenen Bestehenden Aktien im
Rahmen des Angebots abhängt. Daher hat die COMMERZBANK AG
ein finanzielles Interesse am Erfolg des Angebots.
Einige der Konsortialbanken und der mit ihnen verbundenen
Unternehmen unterhalten gegenwärtig und möglicherweise auch von
Zeit zu Zeit in der Zukunft Geschäftsbeziehungen (einschließlich
Kreditgeschäften) mit der CHORUS Gruppe oder können im Rahmen
der gewöhnlichen Geschäftstätigkeit Dienstleistungen für die CHORUS
Gruppe erbringen.
Die Verkaufenden Aktionäre erhalten den Erlös aus den im Angebot
verkauften Angebotenen Bestehenden Aktien. Angenommen, dass
sämtliche Angebotenen Bestehenden Aktien zum Mittelwert der
Preisspanne vollständig platziert werden und nach Abzug der von den
Verkaufenden Aktionären im Zusammenhang mit dem Angebot zu
zahlenden Gebühren und Auslagen, würde sich der den Verkaufenden
Aktionären aus dem Angebot zustehende Erlös auf rund e7,66 Mio.
oder 5,03% des Gesamtbruttoerlöses aus dem Angebot belaufen.
Die Mitglieder unseres Vorstands erhalten jeweils eine einmalige
Bonuszahlung, wenn das Unternehmen im Jahr 2015 erfolgreich ein
öffentliches Angebot durchführt, mit dem das Unternehmen neues
Eigenkapital in Höhe von mindestens e50 Mio. erzielt. Außerdem erhält
im Fall eines erfolgreichen Angebots jedes Vorstandsmitglied eine
Erhöhung seiner jährlichen Grundvergütung. Der Umfang der Erhöhung
hängt von der Höhe des Bruttoerlöses ab, den das Unternehmen mit der
Begebung und Platzierung der Neuen Aktien im Rahmen des Angebots
erzielt (einschließlich neuer Aktien aus der Ausübung der GreenshoeOption), und ist begrenzt auf einen bestimmten maximalen
Erhöhungsbetrag je Vorstandsmitglied. Daher haben die Mitglieder
unseres Vorstands jeweils ein finanzielles Interesse am Erfolg des
Angebots.
Da die Gesellschaft die Erlöse des Angebots der Neuen Aktien
vereinnahmen wird und diese die Eigenkapitalbasis der Gesellschaft
stärken werden, haben alle Anteilseigner, die unmittelbar oder mittelbar
eine Beteiligung an der Gesellschaft halten, insbesondere die
existierenden Aktionäre, die keine Verkaufenden Aktionäre sind,
einschließlich der Mitglieder des Vorstands der Gesellschaft und
unserem Aufsichtsratsvorsitzenden Herrn Peter Heidecker (mittelbar
über
die
mit
ihm
verbundenen
Unternehmen
PELABA
Anlagenverwaltungs GmbH & Co. KG und PELABA Ökofinanz GmbH),
ein Interesse an der Durchführung der Kapitalerhöhung, die
Gegenstand dieses Angebots ist.
Über die vorgenannten Interessen hinaus sind der Gesellschaft keine
wesentlichen Interessen hinsichtlich des Angebots bekannt, die als
Interessenskonflikt angesehen werden könnten.
Name der Person/des Die Aktien der Gesellschaft werden von den Konsortialbanken zum
Unternehmens, die/das Verkauf angeboten.
das Wertpapier zum
Kauf anbietet.
Lock-up-Vereinbarung: Die Gesellschaft hat sich gegenüber den Konsortialbanken verpflichtet,
Die beteiligten
ohne vorherige schriftliche Zustimmung des Sole Global Coordinator
Parteien und
(die nicht grundlos verweigert oder verzögert werden darf) innerhalb
Lock-up-Frist.
eines Zeitraums von sechs Monaten nach dem ersten Handelstag der
Aktien der Gesellschaft an der Frankfurter Wertpapierbörse die
50
folgenden Handlungen weder selbst auszuführen noch diesen
zuzustimmen:
•
Aktien der Gesellschaft unmittelbar oder mittelbar zu emittieren, zu
veräußern, anzubieten, sich zu ihrer Veräußerung zu verpflichten
oder sich ihrer auf andere Weise zu entledigen oder ein solches
Angebot anzukündigen;
•
Finanzinstrumente, die Wandlungs- oder Optionsrechte in Bezug
auf Aktien der Gesellschaft gewähren, mittelbar oder unmittelbar
zu emittieren, zu verbriefen, anzubieten, sich zu ihrer Veräußerung
zu verpflichten oder sich ihrer auf andere Weise zu entledigen oder
ein solches Angebot anzukündigen; oder
•
eine Kapitalerhöhung aus genehmigtem Kapital anzukündigen
oder durchzuführen—mit Ausnahme einer Kapitalerhöhung in
Ausübung der Greenshoe-Option im Zusammenhang mit diesem
Angebot; oder
•
der Hauptversammlung eine Kapitalerhöhung einschließlich eines
neuen genehmigten Kapitals zum Beschluss vorzulegen; oder
•
jedwede Transaktion (einschließlich solche mit Derivativen)
auszuführen, die einen mit den oben genannten Maßnahmen
vergleichbaren wirtschaftlichen Effekt zeitigen würde.
Ausgenommen hiervon sind die Emission oder die Veräußerung von
Aktien oder anderen Wertpapieren, die im Rahmen von
Mitarbeiterbeteiligungs- oder Aktienoptionsprogrammen an Mitarbeiter
der Gesellschaft oder verbundener Unternehmen ausgegeben werden.
Ausgenommen ist ferner die Ausgabe von Aktien gegen Sacheinlage im
Zusammenhang mit einem Erwerb, einer Beteiligung oder einem Joint
Venture an den Vertragspartner einer solchen Transaktion.
Mit gesonderten Lock-up-Vereinbarungen haben sich die Altaktionäre
PELABA Anlagenverwaltungs GmbH & Co. KG (der „Hauptaktionär‘‘),
eine mit dem Aufsichtsratsvorsitzenden Peter Heidecker verbundene
Gesellschaft, und die Vorstandsmitglieder der Gesellschaft Holger
Götze, Heinz Jarothe und Helmut Horst jeweils verpflichtet, während
eines Zeitraums von sechs Monaten nach dem ersten Handelstag der
Aktien der Gesellschaft an der Frankfurter Wertpapierbörse (derzeit für
den 3. Juli 2015 erwartet) und danach während eines weiteren
Zeitraums von 12 Monaten nicht ohne die vorherige schriftliche
Zustimmung des Sole Global Coordinator (die nicht grundlos
Verweigert oder Verzögert werden darf),
•
Aktien der Gesellschaft anzubieten, zu verpfänden, zuzuteilen, zu
vermarkten, auszuschütten, zu verkaufen, zu übertragen oder sie
direkt oder indirekt anderweitig zu veräußern (einschließlich der
Ausgabe oder des Verkaufs von Wertpapieren, die in Aktien der
Gesellschaft getauscht werden können);
•
direkt oder indirekt eine Ankündigung oder Durchführung der
Erhöhung des Grundkapitals der Gesellschaft oder eine direkte
oder indirekte Platzierung von Aktien der Gesellschaft zu
veranlassen oder zu genehmigen;
•
direkt oder indirekt einer Aktionärsversammlung der Gesellschaft
einen Beschlussvorschlag für eine Kapitalerhöhung der
Gesellschaft vorzulegen oder für den Vorschlag einer solchen
Erhöhung zu stimmen;
•
direkt oder indirekt die Ausgabe von Finanzinstrumenten, die in
Aktien der Gesellschaft wandelbare Optionen oder Optionsscheine
darstellen, anzukündigen, vorzunehmen oder vorzuschlagen oder
dies zu genehmigen; oder
51
•
E.6
Betrag und
Prozentsatz der aus
dem Angebot
resultierenden
unmittelbaren
Verwässerung.
ein Geschäft abzuschließen oder eine Maßnahme zu ergreifen, die
aus
wirtschaftlicher
Sicht
den
in
vorstehenden
Aufzählungspunkten beschriebenen Maßnahmen ähnelt,
im Fall des zweiten und dritten der vorstehenden Aufzählungspunkte
außer zum Zwecke des Angebots und in jedem der fünf vorstehenden
Aufzählungspunkte außer soweit dies ausdrücklich in diesem Prospekt
vorgesehen ist.
Die
vorstehenden
Verkaufsbeschränkungen
(Lock-up)
des
Hauptaktionärs und unserer Vorstandsmitglieder finden keine
Anwendung auf Übertragungen von Aktien der Gesellschaft im Rahmen
eines Übernahmeangebots gemäß dem Wertpapiererwerbs- und
Übernahmegesetz. Zudem sind ausgenommen Übertragungen der
Aktien der Gesellschaft durch unseren Hauptaktionär an die mit ihm
verbundenen Unternehmen sowie die Verteilung der Aktien durch
unseren Hauptaktionär an seine eigenen Aktionäre, Gesellschafter
bzw. Partner (wo anwendbar) durch Sachdividenden, sofern
sichergestellt ist, dass der Übertragungsempfänger denselben
Veräußerungsbeschränkungen unterliegt wie der Hauptaktionär. Die
PELABA Ökofinanz GmbH, die weitere mit Peter Heidecker
verbundene Gesellschaft, die Aktien der Gesellschaft hält, hat
bezüglich ihrer 18.597 Aktien keinen Lock-up vereinbart.
Des Weiteren ist es den Fonds KGs per Gesellschafterbeschluss nur
erlaubt, Aktien der Gesellschaft zu veräußern, um ihre laufenden
Kosten decken zu können und Aktien im Wege der Sachausschüttung
an ihre Fondsgesellschafter zu übertragen.
Der Buchwert des bilanziellen Eigenkapitals der Gesellschaft
einschließlich Minderheitsbeteiligungen (das auf die Aktionäre der
Gesellschaft entfallende Eigenkapital oder der „Nettobuchwert‘‘, d.h.
das Gesamtvermögen abzüglich der kurz- und langfristigen
Verbindlichkeiten) auf Grundlage des Ungeprüften Verkürzten
Konzern-Zwischenabschlusses belief sich zum 31. März 2015 auf
e123.121 Tausend und würde sich, basierend auf 17.448.539
ausgegebenen Aktien der Gesellschaft vor dem Angebot, auf e7,06 je
Aktie belaufen.
Bei
einem
unterstellten,
der
Gesellschaft
zufließenden
Gesamtnettoerlös aus dem Verkauf der Neuen Aktien in Höhe von rund
e124,03 Mio. hätte der Buchwert—wäre der Gesellschaft dieser
Gesamtnettoerlös bereits zum 31. März 2015 zugeflossen—des so
angepassten in der Ungeprüften Verkürzten Konzernzwischenbilanz
der Gesellschaft zum 31. März 2015 ausgewiesenen bilanziellen
Eigenkapitals e247,15 Mio. betragen (basierend auf der Mitte der
Preisspanne); dies entspricht rund e8,39 je Aktie (berechnet auf der
Basis von 29.448.539 ausgegebenen Aktien nach vollständiger
Durchführung der Kapitalerhöhung betreffend die Neuen Aktien). Dies
entspräche einer unmittelbaren Verwässerung in Höhe von e2,73
(24,56%) je Aktie für die Erwerber der Angebotsaktien, die in der Mitte
der Preisspanne gekauft haben. Am unteren Ende bzw. am oberen
Ende der Preisspanne betrügen die entsprechenden Werte e1,90
(19,45%) bzw. e3,57 (28,55%). Unter der Annahme der vollständigen
Ausübung der Greenshoe Option würde der entsprechend angepasste
Nettobuchwert in der Konzernzwischenbilanz der Gesellschaft zum
31. März 2015 eine Höhe von e267,56 Mio. haben (berechnet auf
Grundlage der Mitte der Preisspanne); dies entspricht circa e8,53 je
Aktie (berechnet auf der Grundlage von 31.358.467 ausgegebenen
Aktien nach vollständiger Durchführung der Kapitalerhöhung betreffend
die Neuen Aktien und vollständiger Ausübung der Greenshoe Option).
Damit würde eine unmittelbare Verwässerung von e2,59 (23,30%) je
52
E.7
Schätzung der
Ausgaben, die dem
Anleger vom
Emittenten in
Rechnung gestellt
werden.
Aktie für die Erwerber der Angebotsaktien in der Mitte der Preisspanne
einhergehen.
Unter der Annahme, dass die Kapitalerhöhung betreffend die Neuen
Aktien vollständig durchgeführt wird, erfährt der Nettobuchwert pro
Aktie (bei einem Vergleich der Nettobuchwerte vor und nach dem
Angebot) einen Zuwachs in Höhe von e1,34 (oder 18,94%) für
vorhandene Aktionäre der Gesellschaft (basierend auf einem
Platzierungspreis in der Mitte der Preisspanne und ohne Erlöse aus der
Ausübung der Greenshoe Option). Unter der Annahme, dass die
Kapitalerhöhung betreffend die Neuen Aktien vollständig durchgeführt
sowie die Greenshoe Option vollständig ausgeübt werden, erfährt der
Nettobuchwert pro Aktie (bei einem Vergleich der Nettobuchwerte vor
und nach dem Angebot) einen Zuwachs in Höhe von e1,48 (oder
20,92%) für vorhandene Aktionäre der Gesellschaft (basierend auf
einem Platzierungspreis in der Mitte der Preisspanne).
Entfällt. Anlegern werden von der Gesellschaft oder den
Konsortialbanken keine Kosten in Rechnung gestellt.
53
A. RISK FACTORS
An investment in the shares of CHORUS Clean Energy AG, Neubiberg (county of Munich),
Germany (the ‘‘Company’’ or the ‘‘Issuer’’ and together with the legal entities that are fully consolidated
in the Issuer’s consolidated financial statements, ‘‘we’’, ‘‘us’’, ‘‘our’’, ‘‘CHORUS’’ or the ‘‘CHORUS
Group’’), is subject to risks. Therefore, prospective investors should carefully consider the following risks
and the other information contained in this prospectus (the ‘‘Prospectus’’) before deciding whether to
invest in the shares of the Issuer. The occurrence of any of the following risks, alone or together with
additional risks and uncertainties not currently known to CHORUS, or that CHORUS might currently
deem immaterial, could materially adversely affect CHORUS’ business, financial condition, cash flows
and results of operations.
The order in which the risks are presented is not an indication of the likelihood of the risks actually
materializing, or the significance or degree of the risks or the scope of any potential harm to CHORUS’
business, financial condition, cash flows, results of operations or the value of the Issuer’s direct and
indirect interest in companies of the CHORUS Group. The risks mentioned herein may materialize
individually or cumulatively. The market price of the Issuer’s shares could decline if any of these risks
were to materialize, in which case investors could lose some or all of their investment.
This Prospectus contains forward-looking statements that are subject to future events, risks and
uncertainties. CHORUS’ actual results could differ materially from those anticipated in these forwardlooking statements as a result of many factors, including, but not limited to, the risks the CHORUS Group
faces as described below.
I.
RISKS RELATED
1.
The business operations of CHORUS depend on governmental incentives for renewable
energy sources.
TO
REGULATION
The economic success of CHORUS’ solar and wind parks in Germany, Italy, and all other
countries in which CHORUS currently operates or considers operating in the future is to a large extent
based on governmental or statutory subsidization of renewable energy, since regenerative electricity
generation has not generally been competitive until recently with conventional forms of electricity
generation due to higher production costs.
In Germany, for example, energy generation from renewable sources is promoted by the
Renewable Energy Sources Act (Erneuerbare Energien Gesetz – ‘‘EEG’’) as last amended on August 1,
2014 (‘‘EEG 2014’’), which replaced the Renewable Energy Sources Act in the version of 2012
(‘‘EEG 2012’’) and the first Renewable Energy Sources Act of March 29, 2000. Pursuant to the EEG 2014,
Germany aims to constantly and cost effectively increase the share of renewable energy sources in the
overall electricity supply to at least 80% in 2050 and provides certain financial incentives to promote
electricity generated from renewable energy sources.
In 1990, the German government started to promote renewable energy sources by a minimum
remuneration for the feed-in of electricity produced from renewable energy sources and the obligation of
the relevant grid operator to feed the electricity into its grid. In March 2000, this remuneration system was
refined by granting certain fixed feed-in-tariffs as an above-market payment by the grid operator to the
producer of such electricity (‘‘Tariff System’’), accompanied by obligations of the relevant grid operator to
connect facilities that generate electricity from renewable energy sources to the grid. However, in case of
a potential congestion of the network, the grid operator may demand the electricity producers accessed to
its network to reduce or even cancel the production. Consequently, in this case the grid operator is only
obligated to purchase and feed in the reduced amount of electricity.
The German Tariff System has recently been replaced by a system of compulsory direct
marketing of the renewable energy generated under the EEG 2014 (the ‘‘Direct Marketing System’’),
which is applicable to facilities put into operation on or after August 1, 2014. Furthermore, under the
EEG 2014 and respective regulations which were enacted thereunder, a certain amount of new
renewable energy capacity will be allocated by a tendering procedure every year to identify the investors
requiring the lowest governmental support for the operation of new facilities. This will partly replace the
prevailing Tariff System and Direct Marketing System. A second ministerial draft bill was published by the
German Federal Ministry of Economics and Energy. The Regulation on the tendering of financial support
54
for non-integrated solar facilities (Verordnung zur Ausschreibung der finanziellen Förderung für
Freiflächenanlagen – ‘‘FFAV’’) was enacted by the German Federal Ministry of Economic Affairs and
Energy (Bundesministerium für Wirtschaft und Energie) in January 2015, initially focusing on solar energy
facilities installed on the ground. By 2017 at the latest, the tendering process shall be extended to all
renewable energy sources.
For the current and future business activities and profitability of CHORUS, it is essential that
financial incentives for electricity produced from solar energy and onshore wind facilities continue to be
provided in the future. However, there is no guarantee that CHORUS will continue to benefit from financial
incentives, including tax incentives, for the energy produced in its existing solar and wind parks and that
such incentives will not be reduced or even cancelled in the future or that the period of eligibility will not be
shortened. In cases of regulatory changes or reductions of public incentives, transitional provisions
permitting CHORUS to secure its investments and to comply with its existing business plans are of vital
importance for CHORUS. There is no guarantee that governments will grandfather incentive regulations
regarding operating renewable energy facilities, that such grandfathering of support is sufficient to fully
balance the reduction of incentives or that incentives granted will not be reduced or cancelled without
compensation. Furthermore, for renewable energy facilities to be erected and connected to the grid in the
future there is also no guarantee that the existing systems of governmental incentives for renewable
energy will remain unchanged or continue at the same levels as currently existing or at all. For example, in
2014, the Italian legislator, in a controversial step, cut incentives for solar facilities generally, including
with retroactive effect for facilities that had already entered into operation. Similarly, the Spanish
government established a new remuneration system for renewable energy facilities in 2014, which also
retroactively affects operating facilities. Also the Czech Republic has taken various steps since 2010 to
reduce incentives, thereby repealing a guarantee that feed-in tariffs would not decrease by more than 5%
per year and introducing a retroactive tax on revenues generated by solar facilities. In addition, in 2014
the Czech government also issued a proposal outlining retroactive changes on the guaranteed
investment conditions in renewable energy facilities.
Furthermore, the existing incentive system is increasingly subject to public and political
discussions, as it appears to be the main reason for increasing electricity costs generally. As a result, in
recent years incentives for the generation of renewable energy have been reduced with respect to both
the amount of tariffs and the duration of eligibility, and this trend may continue and tariffs and support may
be further reduced or even cancelled in the future. CHORUS cannot ensure that governments or
parliaments of those countries in which CHORUS operates will not decide to further reduce or cancel
public incentives for renewable energy or that they will not shift the share of support in favor of renewable
energy sources other than solar and wind power. In addition, CHORUS cannot predict the impact of future
tender processes regarding solar power capacity and its extension to other renewable energy sources in
Germany, as required under the EEG 2014 by the year 2017 at the latest, but CHORUS expects that a
general decrease in the level of governmental incentives will be the consequence.
The existing energy surcharge and incentive system to grant financial support for the production
of energy from renewable sources as applied by various EU member states also is continuously under
scrutiny by the EU Commission as to its compliance with EU state aid rules. While, for example, the
Commission recently found the German system to be generally in line with EU state aid rules so far, there
can be no guarantee that such assessment will always be maintained and that the Commission will not
consider the prevailing systems in the future to violate EU state aid rules, which may lead to reductions,
limitations or cancellations of financial support for renewable energy or obligations for the beneficiaries of
such systems to repay received incentives in full or in part.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
2.
A delayed start of operation of facilities, or delays in the completion of their construction,
or overly intensive capacity expansion could result in a lower compensation for electricity
fed into the grid or no compensation at all due to degression.
In most legal frameworks of countries where CHORUS’ facilities are located, including under the
EEG 2014, the feed-in tariffs are subject to degression depending on whether defined expansion targets
per year as to total installed capacity have been reached. The purpose of the definition of these
‘‘expansion corridors’’ is to limit the increase of installed production capacity country-wide for all different
55
renewable energy sources. This means, once the targeted amount of newly approved capacity is reached
in a given year, only a reduced incentive will be granted to new facilities, whereby the date of the entering
into operation is the decisive point in time. Accordingly, any delays with respect to, e.g., the finalization of
the erection of a renewable energy facility in the event CHORUS has acquired a ‘‘ready to build’’ facility
(i.e., a not yet erected facility which has received all required permits and entered into the relevant
agreements which come into effect upon completion of the facility), or the commencement of operation of
new facilities may lead to reduced financial support or even no financial support for the electricity
produced. Reasons for such delays may, inter alia, be limitations of building periods due to nature
conservation laws in certain areas (as a result of, e.g., growing or breeding season particularly during
spring and summer of every year) or supply difficulties. There is no guarantee that CHORUS might not
suffer losses due to, e.g., insufficiency of contractually agreed purchase price adjustments for this case or
difficulties of enforcement of such adjustment rights against the seller. Any delay may lead to smaller
returns of CHORUS than expected or no returns at all, which could in turn have a material adverse effect
on CHORUS’ business, financial condition, cash flows and results of operations. Any limitation of
governmental incentives also is likely to limit the number of suitable target projects in the future, which
may have a negative impact on CHORUS’ future growth strategy through the acquisition of new solar and
wind parks.
3.
To receive subsidizations for renewable electricity, CHORUS may need to fulfil further
requirements or may be exposed to altering requirements regarding size of facilities and
maximum capacity.
Feed-in tariffs are subject to restrictions and may be limited once a certain total capacity has been
reached. In Germany, for example, as of the EEG 2012 coming into force, solar energy has received
promotion only up to an installed capacity of a maximum of 10 MW per power plant. In this context
‘‘installed capacity’’ includes solar facilities of the same operator or of third parties that entered into
operation within the preceding 24 months if facilities of such operator are located in an area of 2 km in the
same municipality. Therefore, new facilities of an operator may not be eligible for feed-in tariffs due to
additional installed capacity of third parties.
In addition, the promotion of supported solar facilities stops once the overall installed capacity in
Germany exceeds 52,000 MW. Similar limitations exist in other countries where CHORUS currently
operates facilities. If these thresholds are reached, no further solar facilities will be eligible for incentives
and generated electricity may only be sold at market prices, which may be lower than the guaranteed
feed-in tariffs or the prices achievable under the Direct Marketing System or other national laws. Although
the overall installed capacity in Germany still has not reached 52,000 MW, the defined maximum capacity
has already been reached in other countries such as Italy.
If any of these thresholds were reached, this could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations. In addition, CHORUS cannot exclude
that the legislator of the countries where it operates may decide to decrease those thresholds and to
further limit added capacity. Furthermore, the German legislator may impose similar limitations on other
renewable energy sources such as wind power. If the laws on subsidizations became more stringent with
regard to such thresholds this would affect CHORUS’ investment strategy and the expansion of
CHORUS’ business in the future, and it could have a material adverse effect on CHORUS’ business,
financial condition, cash flows and results of operations.
4.
CHORUS may not be eligible for incentives relating to the electricity generation of solar
parks if particular requirements as to the quality of the location are not met.
The incentives for renewable energy sources sometimes depend on a certain quality or
characteristics of the facility’s location. For example, in Germany under the EEG 2014, feed-in tariffs may
only be granted if solar parks are built on areas which are designated for such purpose by the relevant
land development plan (Konversionsflächen), e.g., along motorways or railways or in industrial areas. To
be eligible, the designated area shall be negatively affected by a certain previous usage, and the impact
of that effect shall still continue. The fulfilment of this requirement may be subject to disagreements with
the competent authority, and, therefore, CHORUS may have to take legal action to claim its right for
incentives. This, in turn, would require personal and financial resources and will also lead to a delay in
receiving the subsidized feed-in tariff for the renewable energy produced by the park. In case a court
would ultimately deny the eligibility of the area where the solar park is erected, the generated electricity
would have to be sold at market prices, which could be below the prices resulting from the support
56
through the feed-in tariffs. The materialization of any of these risks could have a material adverse effect
on CHORUS’ business, financial condition, cash flows and results of operations.
5.
Governmental approvals and local development plans for renewable energy projects
could be challenged.
All countries where CHORUS operates require public permits and/or land development plans for
the erection of solar and wind parks. Under German law, for example, developers have to obtain a
construction permit to build a solar facility, and a permission under the German Immission Control Act
(Bundesimmissionsschutzgesetz) to erect a wind facility with a height of more than 50 meters. Although
CHORUS prefers to acquire already erected solar and wind parks which have obtained all required public
permits and are connected to the grid already, in the vast majority of the cases this is not possible and
CHORUS purchases instead solar or wind park projects which are ‘‘ready to build’’. These are projects
where the construction of the facility has not been completed yet but all required public permits have been
obtained, the properties and the financing have been contractually secured for the erection and the future
grid connection of the facility is ensured. However, existing permits may be challenged and revoked, and,
therefore, there is a risk that either planned projects may not be able to be realized as planned or already
existing facilities may have to be partially or completely demolished or taken out of business. Additionally,
such legal challenges by third parties may lead to delays of the completion of a project, even if the permit
is ultimately confirmed and not withdrawn or limited. Furthermore, the erection of solar facilities on open
space usually requires an amendment of the local development plan (Bebauungsplan). In the
jurisdictions on which CHORUS focuses for its operations, third parties are entitled to challenge such an
amendment in court, which could also result in delays of the finalization of the project. CHORUS may not
be fully contractually protected against financial losses resulting from the materialization of any of these
risks, or contractual claims of CHORUS may not be enforceable (e.g., due to insolvency of the contractual
partner).
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
6.
With regard to German solar parks, a lack of implementation obligations for local
development plans may lead to delays of the completion or the failure of the project.
In Germany, renewable energy facilities frequently may only be constructed on the basis of a
project-related local development plan (vorhabenbezogener Bebauungsplan), which requires the
execution of an implementation agreement (Durchführungsvertrag) between the public authority and the
operator of the renewable energy facility, containing certain implementation obligations of the operator to
enter into force. In the absence of such agreement or the implementation obligations or if either of them
was invalid, the local development plan may be invalid, which could lead to delays of the completion of the
project or failure of the entire project. This, in turn, could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
7.
Failures to fulfil or comply with the requirements of governmental permits for the
operation of renewable energy facilities may result in the withdrawal of governmental
permits, and permits may be limited in scope and may contain shutdown obligations or
other conditions and limitations which need to be fulfilled by CHORUS.
The grant of governmental permits required for the erection and operation of a renewable energy
facility are subject to the fulfilment of certain requirements to be met by the developer and operator of the
facility. Any lack of meeting such formal requirements may result in the withdrawal of permits granted,
which may lead to delays or cancellation of projects yet to be built or a cessation of operations of existing
parks.
In particular, the erection of a renewable energy park may be subject to an environmental impact
assessment (‘‘EIA’’). Under German law as well as in most other jurisdictions in which CHORUS is active,
such EIA is mandatory if a planned wind park has a certain size and consists of a certain number of wind
turbines (in Germany: more than 20). If less than the required number of wind turbines are planned in a
park, a preliminary investigation may have to be conducted to assess whether an EIA will be necessary. If
the preliminary investigation or the EIA is not conducted, the public permit for the park will be illegal and
would have to be withdrawn when challenged. This could result in delays of the construction of the park or
the failure of the entire wind power project; if a park is already operational, such EIA defects could lead to
57
a temporary or permanent cessation of operations of such facility. CHORUS cannot exclude the
possibility that projects in which CHORUS has invested or in which it will invest in the future have not
conducted or fail to conduct an obligatory EIA or the preliminary investigation, which could result in the
revocation of existing permits and the decommissioning or cessation of the respective facility. Any such
failure to comply with EIA regulations could have a material adverse effect on CHORUS’ business,
financial condition, cash flows and results of operations.
Furthermore, approvals regarding the erection of wind facilities often include shutdown
obligations under certain circumstances. Pursuant to such obligations, one or more facilities may have to
be deactivated if certain noise emission thresholds or shadowing limits regarding neighboring structures
are exceeded, or if there is a risk of grid overload or the necessity to protect specific species, such as bats.
Despite the obligation of the authorities to compensate the operator for the shutdown of a wind facility
under certain circumstances, this may result in significant losses for CHORUS.
In addition, authorities may subsequently amend existing permits for solar and wind facilities and
impose additional conditions and limitations for the operator, in particular if violations by the operator of
nature protection regulations or endangered species protection matters are detected during the
monitoring of the operation of the facility. The competent authorities may also impose the obligation to
temporarily or permanently shut down a facility, or to implement or conduct measures to eliminate the
violation of laws if this is essential for the protection of third parties or the nature.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
8.
CHORUS may be subject to the provisions of the German Capital Investment Act as a
‘‘collective investment scheme’’ within the meaning of the act, which would subject
CHORUS to additional regulatory supervision.
Germany has adopted the Directive 2011/61/EU of the European Union (Alternative Investment
Fund Manager Directive – AIFMD) by enacting the Capital Investment Act (Kapitalanlagegesetzbuch –
‘‘KAGB’’). Under the KAGB, all types of collective investment schemes in Germany became subject to
supervision by the German regulator BaFin (Bundesanstalt für Finanzdienstleistungsaufsicht). Pursuant
to the KAGB, a ‘‘collective investment scheme’’ is any type of scheme for collective investments, which is
raising capital from investors and is investing this capital in accordance with a specified investment
strategy and is no operational business outside the financial industry. A ‘‘specified investment strategy’’
shall, according to the explanatory notes to the KAGB in the legislative process (Gesetzesbegründung),
exist if specific rules provide, in contrast to a general business strategy, for distinct criteria how the capital
raised by the entity shall be invested. Public letter ruling issued by BaFin take the view, in line with the
rules set by the ESMA (European Securities and Markets Authority) that such specified investment
strategy is given if the capital raised is invested according to a strategy (i) which is fixed before or with the
investment of the investor, (ii) is provided for in the Articles or by a document referenced in the Articles,
(iii) contains legally binding and enforceable obligations to the scheme to meet the provisions of the
strategy and/or (iv) provides for concrete rules how the investment needs to be performed. Therefore,
such investment strategy providing for specific investment rules and restrictions differs from a more
general business strategy which does not provide for such a detailed framework, but allocates respective
investment decisions to the board of the respective entities instead. Furthermore, a collective investment
scheme shall also not exist if the respective entity runs an operational business outside the financial
sector. According to published interpretations by the German regulator BaFin, they consider inter alia real
estate developers and similar entities to fall under this exception.
If, however, the Issuer would be viewed and classified by the German regulator BaFin as a
collective investment scheme subject to regulatory supervision, BaFin may take actions including, but not
limited to force the Issuer to register as a so-called self-managed alternative investment fund manager
(‘‘AIFM’’) under the KAGB and become subject to regulatory supervision, to certain reporting and
organizational requirements as well as accounting requirements. Furthermore, when exceeding the
threshold of e500 million of assets under management (within the meaning of the KAGB) or e100 million
of assets under management, respectively (if the assets are deemed to be leveraged), the Issuer may
need to register itself as a licensed AIFM, triggering even more far reaching and stricter supervision by
BaFin.
58
The application of the KAGB and the corresponding regulatory supervision by BaFin under the
KAGB would have an adverse effect on CHORUS’ cost structure and its operations and it may also
influence the way how CHORUS operates, in particular how it approaches new investments, which
financing structures can be used and how the disposal, if any, of such assets is handled. The
materialization of any of these risks could have a material adverse effect on CHORUS’ financial condition,
cash flows and results of operations.
9.
The business of CHORUS is regulated by several laws and can be affected by any changes
in the legal framework, which may result in additional expenses to be incurred.
The European, national and local laws and regulations that regulate the business of CHORUS
are subject to permanent changes and generally tend to become stricter. In particular, provisions on the
protection of the environment and tax laws may be amended from time to time, but also technical
requirements regarding the construction and operation of energy facilities such as those contained in the
German Energy Industry Code (Energiewirtschaftsgesetz) could change. In addition, companies of the
CHORUS Group may, due to regulatory changes in the future, fall within the scope of the KAGB and be
required to obtain a permit by the German regulator or be subject to other supervisory measures. In order
to comply with such amendments of the laws and regulations for the operations of its parks, CHORUS
may have to incur expenses in the future. Furthermore, the interpretation and application of laws
applicable to CHORUS by the respective authorities may become stricter. In addition, there is a risk that,
due to changes of the law, the expansion of projects becomes impossible or more complicated and
expensive. Renewable facilities in the neighborhood of residential areas or conservation areas may be
particularly affected, and CHORUS cannot exclude that required permits either may not be granted or
may be limited subsequently. Any changes in law could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
II.
RISKS RELATED
1.
The performance and the successful operation of CHORUS’ solar and wind parks
depends on prevailing weather and the climatic conditions as well as on the location of
the respective facilities.
TO THE
MARKET
AND
BUSINESS
OF THE
CHORUS GROUP
The performance and the successful operation of solar and wind parks depends on the regional
climate (i.e., the atmospheric conditions that impact a particular location, region and surface of the earth)
and the weather (i.e., the momentary status of the atmosphere that impacts a certain location as well as
the typical sequence of atmospheric conditions during a certain season) at the respective location of a
facility. The meteorological conditions which affect the wind volume as well as the solar radiation and
thereby related irradiation values, differ from region to region. Climate and weather are to a certain
extent—despite any existing forecasts, expert reports and plannings by CHORUS—unpredictable and
subject to ongoing changes due to, e.g., global warming and ongoing pollution.
Adverse climate and weather conditions have direct negative effects on the production of
electricity by CHORUS’ solar and wind facilities. CHORUS’ solar and wind parks currently are unevenly
spread across Europe, with a concentration of facilities in Germany and Italy. However, as a result of
acquisitions of further solar and wind parks, there might be higher concentrations of such parks in certain
regions in the future, in which case adverse climate and weather conditions may have respective higher
adverse effects on CHORUS’ electricity production (bulk risk). Furthermore, CHORUS may acquire in the
future solar and wind parks in other regions with weather conditions which are hard to predict.
With regard to the operation of wind parks, the assumptions for the electricity yield realized on
site may be overstated in the event the usable wind volume remains below CHORUS’ expectations.
Weather and climate fluctuations may particularly lead to longer periods of low wind, as was the case
throughout the year 2014. Additionally, the realized energy production may be lower than expected and
calculated as a result of the portion of wind which can be utilized being lower than expected, e.g., due to
shadowing effects within the wind parks or because of the influence of adjacent parks in the
neighborhood. With regard to solar radiation, it cannot be excluded that the actual realized irradiation
values are lower than estimated and result in lower electricity yields. Furthermore, CHORUS’ operating
results over the course of a year vary significantly from season to season depending on the windiness and
solar radiation during the seasons in question. A high percentage of the solar energy is produced in spring
and summer (between April and September), whereas large parts of the wind energy is generated in the
fall and winter months.
59
In addition, continuously changing climate and weather conditions in connection with hail,
lightning, snow, storm, fire, heavy rainfall, landslides, earthquakes, floods and other natural disasters,
may cause damages of CHORUS’ facilities and thereby result in degradation of performance or partial or
total failure of the facilities, which may only partly be offset by possible insurance claims CHORUS might
have.
Any negative variation of wind, sun and other weather conditions could have a material adverse
effect on CHORUS’ business, financial condition, cash flows and results of operations.
2.
CHORUS may be unable to find and secure suitable investment opportunities in solar and
wind parks (or related operating companies).
CHORUS is pursuing a strategy of further growth through the acquisition of additional suitable
solar and wind parks in Germany and selected other EU member states. In general, CHORUS aims to
acquire ‘‘ready to build’’, new, or as good as new solar or wind facilities. With regard to investments in
‘‘ready to build’’ facilities, it is essential for CHORUS that all required permits have been obtained for the
erection and operation of the facility, that the properties and the financing of the erection and operation of
the parks have been contractually secured for the erection and that the future grid connection of the
facility is ensured. Due to the increased competition in the renewable energy field, CHORUS is only in
exceptional cases able to acquire newly erected projects already connected to the grid which are held by
an operating special purpose vehicle (‘‘SPV’’).
CHORUS is dependent on its ability to identify and purchase suitable new solar and wind parks
for its portfolio. Apart from the ability to finance the purchase price, there are no other barriers for a market
entry of potential competitors. It cannot be excluded that new and further competitors could acquire this
know-how, enter the market and win market share from the CHORUS Group.
It cannot be excluded that CHORUS will not be able to find a sufficient number of suitable target
companies for its contemplated investments in the future. The number of suitable solar and wind parks
which fulfil CHORUS’ requirements as to regional focus and size and which are consistent with CHORUS’
profitability expectations is limited and there typically is a lot of intense competition among CHORUS and
its competitors such as other asset and fund managers or institutional investors for such facilities.
CHORUS expects that such competition will remain stable in the future. As a result, CHORUS might not
be able to acquire solar and wind parks it has identified as suitable because other bidders might prevail, or
CHORUS, as a result of increased competition, may have to pay higher prices than expected for targeted
facilities.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business and as such on its financial condition, cash flows and results of operations.
3.
CHORUS is exposed to risks resulting from acquisitions of solar and wind parks (or
related SPVs).
CHORUS typically seeks to acquire all shares in the legal entity (SPV) operating a targeted solar
or wind park. The acquisition of SPVs holding solar or wind parks is associated with significant
investments and risks. A due diligence of the target company prior to the acquisition is often only possible
to a limited extent or can only be conducted with a disproportionate amount of time and effort. CHORUS
cannot guarantee that all risks related to such a transaction can be properly identified or identified at all,
addressed in the negotiations with the seller and contractually safeguarded against. In addition,
CHORUS’ assessments and prognosis as well as experts’ surveys and studies concerning the facilities
and their yield may turn out to be deficient and/or insufficient. There is a risk that the purchase price paid
by CHORUS for the shares is too high compared to the actual profitability of a solar or wind park or in light
of known or unknown risks associated with the facilities. Moreover, acquired technologies and licenses
used by the target company may not be legally valid or not be of any value so that CHORUS cannot make
use of them as planned or at all. Furthermore, the installed components in a facility may turn out to be less
productive and of a lesser quality than expected (despite producers’ descriptions), and CHORUS may not
always have contractual recourse against the seller or producer in such cases or such contractual claims
may be insufficient to cover all potential liabilities. No assurance can be given that CHORUS is able to
negotiate appropriate representations and warranties in the acquisition agreements with the seller for all
identified and unidentified risks. This depends to a large extent on CHORUS’ position in the negotiations.
It may also be possible that defects which are covered by warranty claims are only detected after the
60
limitation period of the warranties and therefore contractual claims against the seller have expired, or that
indemnification agreements with the sellers may be unenforceable.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business and as such on its financial condition, cash flows and results of operations.
4.
CHORUS may not be able to successfully integrate newly acquired companies into its
existing operations and may face other adverse consequences of acquisitions of
operating companies.
The success of acquisitions of new target companies depends to a certain extent on the
successful integration of the acquired operations into CHORUS’ existing operations. Any acquisitions that
CHORUS will complete are accompanied by the risks commonly encountered with acquisitions of
companies or businesses, such as diversion of management’s attention from the normal operation of
CHORUS’ existing business.
In addition, the integration of acquired businesses could be more complicated and
time-consuming than initially expected and could result in delays and in being more expensive than
envisaged. This could particularly be the case when entering markets in which CHORUS has no or limited
prior experience and personnel. For example, target companies may be located in countries that do not
provide a regulatory, economic, political or cultural framework that is compatible with the standards within
countries with which CHORUS is familiar. As a result, doing business in these countries is subject to a
higher degree of uncertainty, and CHORUS might incur higher costs to achieve the same level of legal
certainty it would have with a transaction in, e.g., Germany. If CHORUS were unable to successfully
integrate acquired operations, technology or software, or to complete the integration on time, or to
successfully manage the expenses and risks associated with integrating the administration and
information systems of acquired companies, CHORUS’ business, financial condition and results of
operations could be adversely affected. Also, CHORUS may be unable to realize cost synergies on time
or at all, which may have negative effects on its profitability.
CHORUS furthermore may be unable to keep or maintain the business relationships of the newly
acquired legal entities, the replacement of which might lead to operating difficulties and/or failure to
commence production on time and on budget.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
5.
CHORUS may have difficulties in reselling its solar and wind parks and may incur losses.
In general, CHORUS acquires solar and wind parks with a view to operating them until their
lifecycle comes to an end. Therefore, CHORUS has not resold any of its solar and wind parks, yet.
However, it cannot be excluded that CHORUS may, in the future, sell solar and/or wind parks in order to,
e.g., overcome liquidity shortages or to improve the overall quality of the portfolio. In case such a sale is
contemplated, there is no guarantee that CHORUS will be able to find interested buyers at all or within an
expected time frame, and that CHORUS will be able to negotiate the targeted purchase price or a price
which at least corresponds to the asset’s actual value, appropriate representations and warranties,
adjustments or other features customary for such contracts, in particular given that CHORUS does not
have any experience with the sale of such parks. In addition, CHORUS may be exposed to payment risks
and losses under the sale documentation in case defects of the sold facility are discovered after the sale
for which CHORUS provided contractual warranties to the buyer. The materialization of any of these risks
could have a material adverse effect on CHORUS’ business, financial condition, cash flows and results of
operations.
6.
CHORUS may be exposed to risks resulting from co-investments and joint ventures with
respect to acquired solar and wind parks.
With four exceptions, CHORUS currently is the sole owner of its solar and wind parks and has
these parks under its sole control. However, CHORUS might acquire large solar and wind parks together
with third party co-investors and enter into joint ventures with such partners. While CHORUS typically
strives to obtain control over the acquired facility by either securing a majority investment in case of
co-investments with third parties and/or taking on the operations and asset management of the jointly
61
acquired facility, it cannot be excluded that CHORUS may consider minority investments or investments
of equal size with the partner and is not able to secure control. In case of joint ventures, CHORUS will not
have sole control of the new facilities and needs to coordinate its decisions with the joint venture partner
on the basis of contractual arrangements with such partner. In particular in cases of minority investments
or if third parties assume control of the facility through own asset management this may mean that
CHORUS may not always be able to prevail with its view as to how the facility shall be operated and
managed and which decisions shall be taken in case of disagreements with the joint venture partner
and/or asset manager. The interest of the joint venture partner may not always be aligned with the interest
of CHORUS, which may result in decisions regarding the operation of the facility which CHORUS
considers detrimental for its investment, and certain decisions may take longer than would be the case if
CHORUS had sole control of the asset. All of these aspects may have a material adverse effect on
CHORUS’ business, financial condition, cash flows and results of operations.
7.
CHORUS is subject to risks resulting from projects under construction.
CHORUS regularly acquires projects or parks which have not yet been erected but are ‘‘ready to
build’’. The construction of solar or wind parks is a complex and time and cost intensive undertaking,
subject to special economic, technological and regulatory risks associated therewith.
The SPV typically finalizes the work on a ‘‘ready to build’’ park in collaboration with local partners
(including general contractors (Generalunternehmer)), whom CHORUS expects to be familiar with local
and domestic legal requirements and customs in the area where the solar or wind park is located. The
collaboration partners are in charge of the technical aspects of the construction of the solar or wind park
as well as communications with the authorities and are in turn dependent on their sub-contractors. Any
problems or issues with the erection of the park caused by, e.g., supply problems in connection with
certain required components of a solar or wind facility, a deviation in quality of delivered components
compared with the features originally ordered or the wrong assembly of the different components, may
result in delays in the completion of the project and lead to an increase of costs, and/or a lower
compensation for electricity fed into the grid. There also is a risk that projects may not be completed at all.
Furthermore, delays in the erection of the park may be caused by labor disputes and strikes or other force
majeure events within the sphere of the contractual partner. If CHORUS fails to negotiate a reduction of
the purchase price payable upon completion of the park in case of delays, there is a risk that if any of such
risks materialize, CHORUS, as the purchaser of the SPV, may face difficulties to take recourse against
the collaboration partner or its insurance. There also is no guarantee that CHORUS is able to receive an
adequate compensation for delays even if purchase price reductions are validly agreed with the seller.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business and as such on its financial condition, cash flows and results of operations.
8.
CHORUS is subject to risks resulting from defects of building materials, maintenance
problems, malfunctions, unexpected damages, external influences, terror attacks and
other forces majeures, IT problems (incl. through hacking) and other factors regarding its
renewable energy facilities.
During the operation of its parks, CHORUS is exposed to risks resulting from the quality of the
materials installed in the facilities. CHORUS generally has only limited influence on the details of the
construction of the parks, the actual materials used or the assembly of the various parts of the facilities, in
particular regarding the solar panels and inverters used in solar parks, the foundations of wind turbines
and other components of the solar and wind parks. Despite a technical due diligence commissioned by
CHORUS aiming at ascertaining the fulfillment of targeted investment criteria and product analyses prior
to the acquisition of a park, minor product quality or construction deficiencies cannot be excluded in all
cases. In particular, in case of a series defect of some of the components, the negative effects on the
performance of the park may be material. Additionally, if defective components cannot be replaced (for
technical reasons or because the components are not produced anymore) or if it were too cost intensive
to replace them, this may have a considerable negative impact on the electricity yield of the park over
time. Defective installations of otherwise not reliable components may also lead to a complete shut-down
or reduced performance of the solar or wind park, as may a prolongation of the operating period of a park
as a result of material abrasion.
For the required technical maintenance of the parks, the SPV acquired by CHORUS enters into
maintenance contracts with external service providers. No assurance can be given that the SPVs or their
62
seller always finds service providers with sufficient experience and expertise. In the wind energy area,
CHORUS entered into maintenance contracts with producers of wind turbines with a term of up to
15 years, under which the producers, in addition to the technical maintenance guarantee to secure the
technical availability of the respective wind facility on a certain number of days per year or otherwise make
the operator whole for losses incurred. However, it cannot be ruled out that service providers being
responsible for the maintenance work do not comply with their contractual obligations and guarantees
and that, for this reason, the relationship with these providers deteriorates, which may result in outages or
lower performances of the wind park and ultimately in a lower electricity yield, and that contractual claims
of CHORUS against the provider may not be enforceable (e.g., due to insolvency). Furthermore, in case
of non-performance or malperformance of the provider, it may be difficult for CHORUS to terminate and
replace these contracts as fast as desired.
It cannot be excluded that components of a facility do not meet the technical characteristics
assured by the manufacturer or contain other defects which may lead to a legal dispute with the
respective supplier and a delay in replacement or repair of the components. In addition, defects might
occur after manufacturer’s warranties regarding the quality of components, including as to the efficiency
of solar panels used in a solar park, have expired or remediation or replacement of the components may
not be possible because the manufacturer is in insolvency. In these cases, CHORUS would have to bear
the cost of a replacement or repair of the defective of sub-standard components, and if it were not
possible to achieve the guaranteed production efficiency through remediation measures or replacement
of components this may have a negative impact on the profitability of the parks.
Terror attacks, other cases of force majeure or other damaging events which are not covered by
respective insurances could affect the operation of CHORUS’ solar and wind parks and result in a partial
or complete shutdown of CHORUS’ renewable energy facilities. In particular, riots, theft, vandalism and
other damaging events may have a negative effect on CHORUS’ business activity even though the parks,
panels, inverters or wind turbines themselves may not be directly damaged. A collapse or damage of the
infrastructure (in particular of the grid to which the parks are connected) may have a considerable
negative impact on the business activity of CHORUS by, e.g., impeding the electric supply or impairing
the operation of the solar and wind parks. All of these events would result in financial losses for CHORUS.
Furthermore, it cannot be excluded that any functional disorders or defects of individual
components of the facilities or other factors may lead to interruptions of the operation of the facilities or a
partial or total shutdown of the solar and wind parks. Additionally, functional disorders or defects of the
IT-systems which are required for the operation and control and in particular for the shutdown of the
facilities, including as a result of possible external attacks caused, e.g., by computer viruses (such as
Trojans) or other computer malware may have a considerable negative impact on all processes of the
IT-infrastructure.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
9.
CHORUS may not be able to adequately react to technological or market developments.
Due to ongoing improvement and further development of new technologies, the market for
renewable energy in Europe is experiencing dynamical technological changes. A decisive factor for the
success of the CHORUS Group is the timely identification of new technological developments and trends
as well as changes in regulatory requirements. CHORUS needs to be able to ensure that the solar and
wind parks in which CHORUS envisages an investment are erected and will be operated in accordance
with the latest technological standards. CHORUS’ investment strategy furthermore needs to keep pace
with the latest technological developments and trends in the renewable energy sector in particular as to
the potential use of new renewable energy sources. For its advisory services rendered to institutional
funds and other professional investors, CHORUS has to stay current with respect to structuring options
for investments and other developments relevant for customized investment structuring. With regard to its
advisory services provided to institutional funds and other professional investors but also to its own asset
portfolio, CHORUS may not be able to adjust the portfolios according to the changed demands of the
market. Further, competitors of CHORUS might be able to respond more quickly to new or changing
market circumstances or technological trends. And CHORUS might not be able to attract targeted
professional investors if it is not able to render structuring advice based on the most recent developments.
Any failure to adequately respond to these developments, not to recognize emerging technological
63
developments early enough or stay current on structuring developments may lead to losses or loss of
customers or investors, the materialization of which could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
10.
CHORUS is exposed to risks in connection with grid connections and feed-in of
electricity.
The feed-in of the electricity produced by the solar and wind parks operated by CHORUS into the
available local grid depends on the existing connection to such grid via respective transformer
substations. Changes or disturbances of the grid connection or the local grid to which the respective
facility is connected may affect the profitability of the solar and wind parks, and it cannot be guaranteed
that CHORUS is able to enforce potential damages claims against the grid operator. Should problems of
the grid persist, the installation of a new connection to another grid might be required, which apart from
foregone revenues during the period of missing grid connection is associated with additional costs and
further delays. This also applies—despite compensation obligations of the grid operator required under
applicable renewable energy law (as set forth, e.g., in the EEG)—in the event of a potential shutdown of
solar and wind parks as a result of a capacity overload of the grid.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
11.
CHORUS is subject to risks relating to direct marketing of its produced energy (under the
EEG 2014 and similar laws).
CHORUS’ earnings depend on the market price of electricity, in particular in countries which do
not provide guaranteed feed-in tariffs for renewable energy or where CHORUS sells its electricity at
market prices.
For example in Germany, the Direct Marketing System existed as an alternative to the Tariff
System on a voluntary basis already under the EEG 2012. The EEG 2014 introduced a compulsory Direct
Marketing System for all facilities with a capacity above 500 kW (as of 2016 reduced to all facilities with a
capacity above 100 kW) that started their operations after August 1, 2014, as a result of which operators
may only sell their renewable energy on the market and at market prices. Under the German Direct
Marketing System, the operator of renewable energy facilities may claim from the grid operator a ‘‘market
premium’’, which aims at balancing the difference between the feed-in tariff and the market price. The
market premium and the average monthly market price value (Monatsmarktwert) of the electricity
together are intended to equal the feed-in tariff.
CHORUS engages third party intermediaries which sell the generated electricity on the market
and, typically, pay CHORUS a contractually fixed remuneration. CHORUS bears the risk of the
insolvency of such direct marketers, in particular as an operator of a facility which is subject to the
EEG 2014 may only switch to the Tariff System at the beginning of each month, in which case the feed-in
tariff furthermore will be reduced to 80%.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
12.
Lower prices for energy from conventional sources could negatively impact CHORUS’
results from energy sales.
The demand for electricity from renewable energy sources like solar and wind facilities also
depends on the economic advantages and disadvantages of these forms of energy generation compared
to energy generation out of conventional energy sources (such as coal, oil or gas). Due to a decline of the
prices for conventional energy sources (e.g., through the regulatory changes permitting new energy
production methods such as fracking and the increasing use of cost-efficient technologies for energy
production) or a general decline of energy prices due to increased competition in the energy market as a
result of a liberalization, electricity from renewable energy sources might become less attractive from an
economic point of view for end-customers, which would have an adverse impact on the electricity sold by
CHORUS under the German Direct Marketing System of the EEG. The flexibility and ability of CHORUS
to react to such market price developments depends on the terms and conditions of its electricity supply
agreements with direct marketing intermediaries, which in Germany can be terminated on an annual
64
basis and do not provide for any adjustment possibilities regarding energy prices in this case.
Furthermore, a decline of energy prices could impair CHORUS’ ability to operate solar and wind parks
after the term of the guaranteed feed-in tariffs has expired. This may also apply for other European
countries, such as Italy.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
13.
A high inflation rate could negatively impact CHORUS’ results.
The consideration CHORUS receives for its energy sales, either under a feed-in tariff system or a
direct marketing system with a market premium, is fixed for a long period of time and, in certain countries,
does not provide for any adjustment mechanism to compensate for increases in inflation. Therefore, if as
a result of increasing inflation over a longer period of time prices and investment costs rise, CHORUS’
expenses might rise as well without CHORUS being able to partly compensate such increase through
increased earnings. In addition, some of the assumptions underlying CHORUS business planning
regarding certain renewable energy parks over a long period of time may be rendered inaccurate, and an
increased inflation might negatively affect CHORUS’ rate of return and profitability of its renewable
energy parks in the countries where it operates. This, in return, could have a material adverse effect on
CHORUS’ business, financial condition, cash flows and results of operations.
14.
Recessionary conditions in the Eurozone and, in particular, Germany, could adversely
affect CHORUS’ business, financial condition and result of operations, as could the
withdrawal of certain EU member states from the Eurozone.
The industrial sector is one of the largest energy users in Europe and therefore purchases a
significant amount of the electric energy generated by renewable energy sources in Europe. The
Eurozone debt crisis and general economic slowdown in parts of Europe resulting from, among other
factors, falling gross domestic product, rising unemployment and economic uncertainty, may adversely
impact macroeconomic conditions in Germany and other European countries. For example, several of
the European economies in which CHORUS operates were until recently, or continue to be, in recession.
These countries could experience further recessions, and countries with stable or moderately growing
economies, such as currently Germany, could experience severe downturns in the future. Such negative
economic developments have an indirect negative impact on the industrial need for electric energy in the
regions in which CHORUS operates. Such developments could have a material adverse effect on
CHORUS’ business, financial condition, cash flows and results of operations.
Furthermore, in the event that certain EU member states of the Eurozone withdraw from, or are
excluded from, the Eurozone and reestablish their previous currency with a low value and exchange rate
compared to the euro, this could result in material financial losses of the companies of the CHORUS
Group operating in such member state. The financing of such operating company, which will have been
taken out in euro, would have to be repaid from the proceeds resulting from electricity sales in such
member state, which, however, would not be denominated in euro anymore but in the local currency. In
this case, CHORUS would fully bear the risk of currency exchanges, as a result of which the operating
company may not be able anymore to fulfil its obligations under the finance agreement and might be in
default thereunder. This could lead to an enforcement of securities granted to the financing banks and,
ultimately, to an insolvency of the operating company, which could have a material adverse effect on
CHORUS’ business, financial condition, cash flows and results of operations.
15.
CHORUS may be unable to initiate further funds for institutional investors or to structure
investments for professional investors in the future or may not realize the projected fees
for its fund and asset management as well as advisory services to CHORUS Infrastructure
Fund S.A. SICAV – SIF and other investment vehicles of professional investors.
CHORUS initiates funds for institutional investors and structures investment opportunities for
professional investors who are interested in investments in the field of renewable energy against a
contractually agreed fee. Such institutional investors, in particular insurance companies or financial
institutions, are subject to regulations regarding their investments in order to safeguard the interests of
their beneficiaries.
65
In Germany, any investments made by insurance companies need to fulfill the criteria listed in the
Investment Regulation (Anlageverordnung – AnlV) when investing their restricted assets. This
Regulation, however, does not provide for a category relating to renewable energy or infrastructure
projects. Therefore, investments in these areas, including indirect investments through a fund, have to be
categorized according to the ‘‘nature of the investment’’, which leaves room for interpretation. This may
lead to legal uncertainty and disagreement with the relevant supervisory authority for the institutional
investors, which in turn may prevent them from executing investments in the field of renewable energy.
Furthermore, investments by these investors for their restricted assets are subject to certain quantitative
limitations. Similar rules apply with regard to restricted assets of pension funds, whose investments are
governed in Germany by the Regulation on the Investment of the Restricted Assets of Pension Funds
(Pensionsfonds-Kapitalanlagenverordnung – PFKapAV).
In addition, investments by European insurance companies will further be restricted by the
implementation of EU Directive 2009/138/EC of November 25, 2009 on the taking-up and pursuit of the
business of Insurance and Reinsurance (‘‘Solvency II’’) into national law of the ‘‘Member States’’, which
implementation is due on or before January 1, 2016. Solvency II introduces a new system of capital
requirements for insurers. According to these new rules, investments in renewable energy projects if
made in equity will require a high percentage of regulatory capital allocated to it. Furthermore,
investments by pension funds, will be subject to new EU legislation. In March 2014, the European
Commission adopted a legislative proposal which aims at revising the EU Directive 2003/41/EC of
June 3, 2003 on the activities and supervision of institutions for occupational retirement provision
(IORPs). In the legislative procedure following the proposal, the European Commission will examine the
necessity of new solvency rules for IORPs. Such and other currently unforeseeable regulatory changes
may render investments by institutional or professional investors more burdensome and less profitable,
and may have a negative effect on their willingness to invest in renewable energy projects.
For these and other reasons, including but not limited to changes in the legal framework
concerning renewable energy, including in particular lower governmental incentives for the production of
energy from renewable sources, lower prices for energy from conventional sources or general adverse
economic conditions, an investment in renewable energy may become unattractive for institutional
investors going forward. This would have adverse effects on the market for institutional investments in the
renewable energy sector. Under such conditions, CHORUS may not be able to attract institutional
investors for the further initiation of funds or direct investments into renewable energy projects. As a
consequence, CHORUS’ ability to generate revenues from this part of its business activities as projected
or at all may be impaired.
With regard to its fund and asset management as well as advisory services provided to
institutional funds and professional investors, CHORUS receives different types of fees, which, inter alia,
depend on the amount of assets under management of the fund / for the professional investors and on
CHORUS’ performance. If the respective funds (including institutional funds such as CHORUS
SICAV-SIF) or professional investors cannot further pursue their strategy of investing in renewable
energy facilities due to reasons similar to those set forth under A.II.2. ‘‘—CHORUS may be unable to find
and secure suitable investment opportunities in solar and wind parks (or related operating companies).’’
or if the performance of the renewable energy facilities held by such funds or investment vehicles of
professional investors were to be lower than expected, this would have a negative impact on the fee
volume generated by CHORUS.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
16.
The CHORUS Group depends on its members of management and further qualified
personnel.
CHORUS’ future growth and success depend on the performance, skills and talent of its
managers and key employees, who have the necessary know-how and experience required for
CHORUS’ lines of business. There is no guarantee that CHORUS will be able to retain the services of its
members of management or any of its key employees in the future. Competition for experienced
managers and qualified employees is intense in CHORUS’ industry, and the loss of members of
management or of qualified employees or an inability of CHORUS to identify, attract, retain, develop and
motivate highly skilled replacements required for the operation of the business could hinder CHORUS’
66
ability to successfully run and further develop its business. Any loss of, or inability to attract and retain,
management or key personnel could have a material adverse effect on CHORUS’ business, financial
condition, cash flows and results of operations.
17.
CHORUS is dependent on the use of properties owned by third parties for the operation of
its solar and wind parks.
With the exception of two solar parks in Germany, all of CHORUS’ solar and wind parks, including
structures, ancillary facilities and cable ducts to the point of grid connection, are built on properties or can
only be accessed through properties owned by third parties. The facilities are operated on the basis of
long-term lease or easement agreements or servitudes granted to the benefit of the SPVs owning and
operating the parks. CHORUS cannot exclude the possibility that not all real properties and rights of use
have been secured on the basis of contracts or in rem which are necessary for the current operation of the
facilities. It may also be possible that rights to use a property could (temporarily) not be secured or
registered due to specific situations (e.g., death of the owner without known heirs or ongoing plot
alignments). The absence of such rights may lead to increased costs or revenue loss, either because
CHORUS is required to negotiate new or additional agreements granting such rights at unfavorable
conditions or, if this cannot be agreed, the respective renewable energy facility might have to be partly or
completely shut down and/or relocated to a different location.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
18.
CHORUS is exposed to risks resulting from a premature termination of existing rights of
use.
For its business activities, CHORUS is dependent on numerous rights of use regarding the
premises on which its renewable energy facilities are situated, and, possibly, adjacent premises. Even if
CHORUS secured these necessary rights of use on the basis of long-term contracts and/or in rem it
cannot be excluded that these rights are prematurely revoked or the underlying agreements terminated
by the respective property owner or his creditors. In Germany, this may for example be the case if the
agreement concerning the rights of use was concluded with a property owner who is a consumer
according to the definition in Section 13 of the German Civil Code (Bürgerliches Gesetzbuch) during an
off-premises situation and the property owner has not been correctly informed about his statutory
withdrawal right. In that case, even if a right of use were secured in rem it must be deleted from the land
register. Furthermore, it cannot be excluded that property owners may exercise extraordinary statutory
termination rights (based on, e.g., termination due to breach of the written form requirement, termination
right of the buyer who purchased the property by way of a foreclosure auction or who purchased the
property from the insolvency administrator of the former estate-owner). Such a premature termination can
only be prevented by in rem rights of use in favor of the respective SPV, provided that such in rem rights
are sufficiently independent of the validity of the lease agreement for the respective property, which may
not always be the case.
In case of an enforcement into the real property, CHORUS is also exposed to the risk that in rem
usage rights of the SPV may not rank as first priority rights in the land register or at least prior to all in rem
rights of third parties which may infringe upon registered rights in favor of the SPV. In that case, such
subordinated rights of the SPV will be deleted from the land register in case the owner of prior-ranking
rights proceeds with an enforcement into the real estate.
In addition, necessary rights of use may be lost if an operating company of a solar or wind park
breaches its contractual obligations under the lease agreement, e.g., when it fails to pay the rent in a
timely fashion or at all. In that case, the property owner may have the right to terminate the lease
agreement for cause. As a consequence, the SPV typically would also have to agree to a cancellation of
its in rem right of use in the land register.
Moreover, the loss of a right to use a required property for a specific facility might entitle the
financing bank or banks to terminate the financing agreement and request premature repayment of the
loan, which may require a refinancing of the existing debt at unfavorable conditions or, if not successful,
ultimately result in an enforcement of the assets of the facility, which have been granted as collateral for
the loan, by the banks.
67
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
19.
CHORUS may be subject to risks resulting from its responsibility as owner of the facilities.
As operator of solar and wind parks, CHORUS is subject to a liability for premises and is
responsible that no individual or goods of third parties are harmed and that no neighbor of the premises
on which the parks have been built is negatively impacted through the operation of the facilities. In case of
a violation of such duty, CHORUS may be held liable for damages or may be obliged to remove any
impact, and there is a risk that such damages or costs are either not fully covered by CHORUS’ liability
insurance or that the insurance company refuses to pay or becomes insolvent.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
20.
CHORUS may be liable for contaminated or polluted properties and sites and the
surrounding environment used by its operating companies.
Properties that CHORUS currently uses or will use in the future for the operation of its facilities
may contain ground contamination, hazardous substances, wartime relics and/or other residual pollution
and environmental risks. Under German law, a person using a property, i.e., the CHORUS’ SPV
operating the solar or wind park, (in addition to the current and former owner of the property as well as
parties causing the contamination) bears the risk of cost-intensive assessment, remediation or removal of
such ground contamination, hazardous substances, wartime relics and/or other residual pollution,
irrespective of causation. Companies of the CHORUS Group may therefore be required to incur such cost
in case of discovery of any contamination on the properties where solar or wind parks are operated. In
such cases, such CHORUS Group companies may be entitled to take recourse against the polluter
and/or the current and previous owners of the properties; however, such recourse might not be
successful, e.g., if the responsible person for the contamination cannot be identified or the polluter or
owner are subject to insolvency proceedings. Any such remediation or removal efforts, as well as
additional related measures, could have a material adverse effect on CHORUS’ business, financial
condition, cash flows and results of operations.
21.
The further growth of CHORUS depends on the availability of project financing as well as
on successful raising of capital for the acquisition of renewable energy facilities.
The development and construction of new renewable energy facilities requires relatively high
investments by the developer, which are typically satisfied through taking out project financing of banks at
the level of the company operating the new future solar or wind park. The recent Eurozone debt crisis
generally has led to stricter requirements of banks regarding the grant of credits, which may make project
financing more difficult. Also, banks may be more restrictive going forward in granting loans in the context
of renewable energy facilities in light of the ongoing reduction of feed-in tariffs, governmental
subsidization and market prices for energy, or they could tend to pay-out loans with a delay. Any of these
financing difficulties of developers may result in fewer attractive renewable energy projects being
available for CHORUS to acquire, which may be an impediment to the successful implementation of
CHORUS’ growth strategy including an expansion of the portfolio of solar and wind parks. In addition, it
also cannot be excluded that CHORUS does not succeed in raising sufficient capital to implement its
growth strategy and acquire additional renewable energy facilities.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
22.
CHORUS is exposed to risks resulting from debt service obligations and obligations to
pay ongoing fees of its operating companies.
The operating companies of solar or wind parks that CHORUS acquires from developers typically
have taken out project financing in connection with the development and construction of the parks. As
security, the financing banks usually receive guarantees of the operating companies and other securities
such as pledges of the shares in the SPV and security transfers of claims for payment for the electricity
fed into the grid by the SPV. Through the acquisition of the SPV, CHORUS indirectly assumes these
financing agreements and the obligations thereunder. Although the financing agreements typically do not
provide for recourse possibilities against the seller of the SPV (who arranged for the SPV taking out the
68
financing) or for CHORUS or other members of the CHORUS Group assuming the seller’s position as
shareholder of the SPV, there can be no guarantee that the acquired SPV will always be able to satisfy its
payment obligations under the finance agreements and does not breach covenants or other obligations,
in which case the financing banks might exercise their acceleration right for repayment (vorzeitige
Fälligstellung) or enforce their securities, unless the breach is remedied within a contractually agreed time
period. Furthermore, the operating companies might not be able to fulfil their payment obligations under
the agreements with their external service providers, which ultimately might trigger enforcement rights of
the providers. Reasons for a non-payment or delayed payment to the banks or service providers might
result from the reduction or cancellation of governmental support for renewable energy or a general
decline in energy prices. In this case, in particular with respect to operating companies with high leverage
levels, there is a risk that the operating company might have to cease operations and falls into insolvency.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
23.
CHORUS is subject to risks relating to changes in interest rates with respect to its
financing.
CHORUS’ financing strategy concerning its solar and wind parks involves a high proportion of
debt (usually between 65% to 80%), taken out at fixed interest rates for a certain time period or variable
interest rates. In case of fixed interest rates it cannot be excluded that after the expiry of the fixed interest
rate term (Zinsbindungsfrist), the then available interest rates are only available on the market above the
interest rates expected by CHORUS and used in its internal calculations, which may impair the
profitability of CHORUS’ solar or wind parks and/or hamper the further development of CHORUS’ asset
portfolio.
In case the financing taken out by the SPV operating a solar or wind park contains variable
interest rates, CHORUS has, for certain financing agreements, entered into hedging arrangements using
interest rate swaps to safeguard against a rise of interest rates payable. However, CHORUS has not
secured such hedging arrangements for all of the financing with variable interest rates, and CHORUS
cannot provide any assurance that it will be able to hedge all interest rate risks in the future or that its
hedging transactions will sufficiently shield it from such risks. For all financing agreements not
safeguarded through hedging agreements, a rise of market interest rates would lead to an increase of
costs on CHORUS’ side.
Furthermore, at the expiry of a financing agreement CHORUS may, due to a deterioration of the
market conditions, only be in a position to refinance the principal amount at higher interest rates and
thereby incur higher costs. Any change in market interest rates could therefore have a material adverse
effect on the business, financial position or results of operations of CHORUS or on its ability to achieve its
objectives.
24.
CHORUS is subject to currency risks with respect to its business and financing.
The Issuer’s current portfolio comprises solar and wind parks in countries of the Eurozone.
However, CHORUS plans to expand this portfolio through the acquisition of additional parks and also
contemplates investments in other EU countries which it believes to provide a reliable regulatory
environment but have not introduced the euro as their legal currency, such as Sweden and Great Britain.
Future investments in renewable energy parks in countries without the euro as legal currency may need
to be funded in local currency. The same is true for the costs of local maintenance and operation of such
parks in such countries. Therefore, CHORUS is exposed to foreign exchange transaction risks with
developers and other business partners in countries that use currencies other than the euro and
CHORUS will bear the risk of fluctuating exchange rates. Furthermore, CHORUS may not at all or not fully
be able to hedge against such risks. Any change in currency exchange rates could therefore have a
material adverse effect on the future business, financial position or results of operations of CHORUS.
25.
The Issuer is dependent on the results of operations of its subsidiaries.
The Issuer conducts a substantial part of its operations through its direct and indirect
subsidiaries. These subsidiaries are separate and distinct legal entities. To cover its operating costs, the
Issuer substantially relies on distributions that it receives from its subsidiaries and other investment
interests or, as the case may be, scheduled repayments of loans granted to its subsidiaries. The
69
distributions by the subsidiaries depend, in turn, on their operating results and their ability to make
distributions under applicable law. No assurance can be given that such funds will be sufficient in the
future to satisfy all of the Issuer’s payment obligations when due. If the available cash is not sufficient for
such payments, the Issuer will most likely refrain from paying dividends. The materialization of any of
these risks could have a material adverse effect on CHORUS’ business, financial condition, cash flows
and results of operations.
26.
CHORUS might violate the intellectual property rights of third parties or non-disclosure
agreements or may be forced to license-in intellectual property rights.
It cannot be excluded that in the course of the operation of CHORUS’ solar and wind parks and
CHORUS’ asset management operations intellectual property rights of third parties are violated or
non-disclosure agreements with third parties are breached. In cases of a violation or breach, CHORUS
could be exposed to liability or damage claims of third parties or be forced to acquire a license to use
intellectual property rights, which may lead to revenue losses or decreases in CHORUS’ profitability. The
materialization of any of these risks could have a material adverse effect on CHORUS’ business, financial
condition, cash flows and results of operations.
27.
CHORUS depends on the development and successful implementation of management
systems for the operating group companies and risk control systems for the entire
CHORUS Group, and may also have difficulties to meet increased IFRS requirements and
stock exchange reporting requirements.
CHORUS controls and monitors the operations of its various solar and wind parks and the
performance of its technical managers on a regular basis and is able to remotely influence the electricity
output and feeding-in of electricity into the grid as well as act and take urgency measures without delay in
case of operational issues, upcoming risks or imminent danger in any of the parks. This control system
also provides access to all operating data and is based on online access and video surveillance of each
individual facility, allowing the CHORUS employees to access the individual facilities online at every hour
of the day and both remotely and from CHORUS’ corporate seat in Neubiberg. Furthermore, in Germany,
under the EEG 2014, the ability granted to a direct marketing intermediary to control and stir a facility
online through remote access is a prerequisite for payment of the market premium (see
A.II.11. ‘‘—CHORUS is subject to risks relating to direct marketing of its produced energy (under the EEG
2014 and similar laws)’’). If the remote access control system for a facility has a defect, malfunctions or
shuts-down (e.g., as a result of technical defects, maintenance or usage errors, power outages, natural
disasters, hacking or other hostile attacks of third parties) or if CHORUS does not attend to the control
and monitoring of the facilities in the required intervals or when necessary, this could result in non- or
under-performance of the facility and lead to damages, which may ultimately result in a shut-down of the
facility. If a direct marketing intermediary is not able to remotely control and manage the facility, this could
result in the loss of claims for payment of the market premium for electricity fed into the grid.
Furthermore, CHORUS is in the process of installing a group-wide risk management and
reporting system that serves to safeguard its existence and growth and to increase its value and
competitiveness by ensuring the appropriate management and transparent communication of individual
risks. The risk management and reporting system shall enable CHORUS to promptly identify
disproportionate factual and legal risks, control them and avoid them to the extent possible. However, no
assurance can be given that the risk management and reporting system works properly, and CHORUS
may not identify all risks associated with a certain operation or not in a timely manner or CHORUS’
management could interpret the results of the risk management and reporting system wrongly. The
materialization of any of these risks could have a material adverse effect on CHORUS’ business, financial
condition, cash flows and results of operations.
28.
CHORUS is subject to the tax laws and regulations in Germany and other countries. Its tax
burden may increase as a consequence of future tax treatment of dividend payments,
non-deductibility of interest payments, current or future tax assessments or court
proceedings, or based on changes in domestic or foreign tax laws and double taxation
treaties or changes in the application or interpretation thereof. CHORUS could be obliged
to pay additional taxes as a result of tax audits.
CHORUS is subject to the tax laws and regulations of Germany and numerous other countries.
Its tax burden depends on various aspects of tax laws and regulations including double taxation treaties
70
concluded, in particular, between Germany and the countries in which CHORUS is operating, as well as
their respective application and interpretation. Amendments to tax laws and double taxation treaties, for
example, an increase of statutory tax rates or the limitation of double tax relief may have a retroactive
effect, and their application or interpretation by tax authorities or courts is subject to change. Furthermore,
tax authorities occasionally limit court decisions to their specific facts by way of non-application decrees.
This may also increase CHORUS’ tax burden.
The Issuer’s ability to distribute dividends depends largely on dividend payments made by its
subsidiaries. Among other things, these intra-group distributions are subject to withholding tax
(Kapitalertragsteuer) on multiple intra-group levels. No assurance can be given that the taxation of intragroup distributions may not negatively affect the Issuer’s ability to pay dividends in the future.
Thin-capitalization rules in various jurisdictions restrict the tax deductibility of interest expenses
and the possibility of companies to carry forward non-deducted interest expenses to future assessment
periods. As the interpretation of these rules is not entirely clear in many jurisdictions, it cannot be ruled out
that the competent tax authorities will take a different view regarding the tax deductibility of interest
expenses than CHORUS’ entities.
Certain entities of the CHORUS Group are rendering services to other CHORUS Group entities
on a regular basis against an internal fee. Tax authorities may try to challenge this transfer pricing system
applied by the CHORUS entities involved, which, if successful, may lead to tax payment obligations and
increased costs.
Entities of the CHORUS Group are or may become party to tax proceedings. The outcome of
such tax proceedings may not be predictable and may be detrimental to the CHORUS Group. In
particular, CHORUS Vertriebs GmbH, a subsidiary of the Issuer, currently is subject to a tax audit
(Betriebsprüfung) for the years beginning from 2007. CHORUS GmbH (as the taxable entity and sole
shareholder of CHORUS Vertriebs GmbH) has received an indemnity against the shareholders
contributing the shares in CHORUS GmbH into the Company, pursuant to which those shareholders
undertake to indemnify CHORUS GmbH against any losses or payment obligations in the context of
certain tax proceedings involving CHORUS Vertriebs GmbH. However, such indemnity may not be
enforceable (e.g., due to insolvency of the contractual partners).
CHORUS regularly is subject to tax audits in various jurisdictions and such tax audits may lead to
tax assessments resulting in higher tax payments.
Changes in tax laws or in the interpretation of tax laws by courts or tax authorities, as well as the
materialization of any of the risks described above could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
29.
CHORUS is subject to risks resulting from future legal proceedings.
CHORUS is generally from time to time involved in a certain number of legal actions in the normal
course of business but believes that the currently pending litigation matters are not of such a scope or
nature that they will materially affect CHORUS’ financial position in case of an unfavorable outcome. Any
litigation may bind personnel and financing resources. No assurance can be given that the outcome of
such litigation is always in favor of CHORUS. The materialization of any of these risks could have a
material adverse effect on CHORUS’ business, financial condition, cash flows and results of operations.
30.
In connection with the distribution of funds initiated by CHORUS in the past, companies of
the CHORUS Group could be exposed to damage claims, including claims based on
prospectus liability raised by investors, recourse claims of distribution partners and
claims with regard to wrongful investment advice provided by distribution partners.
Prior to the reorganization of the CHORUS Group at the end of 2014 (the ‘‘Reorganization’’),
CHORUS initiated funds in the form of German limited liability partnerships (Kommanditgesellschaften)
and offered investments in such funds on the basis of prospectuses. Prospective investors had either the
opportunity to directly invest as limited partners (Kommanditisten) or to indirectly invest by entering into a
trust and administration agreement with REGIS Treuhand & Verwaltung GmbH für Beteiligungen, which
acted as limited partner in trust (Treuhandkommanditistin) for the investors. The capital raised by the
funds was mainly used for the acquisition of assets (shares of SPVs which operated certain solar and
71
wind parks) for which CHORUS subsequently provided fund management and asset management
services against a fee.
CHORUS CleanTech Management GmbH, as the legal entity within the CHORUS Group which
is responsible for the content and the issuance of such prospectuses, as well as all other CHORUS’
entities which were involved in the preparation of or mentioned in the prospectuses may be liable for
damages incurred by the investors due to potential incorrect, incomplete and/or misleading statements
made in these prospectuses. For example, a liability could also apply if fees, provisions and other
remuneration in connection with the fund raising or other fees payable by the fund have not been
described correctly or completely in a prospectus. Furthermore, the description of the risks associated
with an investment in the funds may be incorrect, incomplete or misleading, or withdrawal rights may have
been described incorrectly. In addition, there is a risk that changes of the facts underlying the disclosure in
the prospectus or new developments have not or not accurately been reflected in a supplement to the
prospectus, which may render the prospectus defective retroactively; this is a risk in particular in the event
of an extended offer and distribution period for the fund investments.
In case business partners of the CHORUS’ Group, which distributed, offered and sold
investments in the funds to investors on the basis of these prospectuses, were to be held liable for
incorrect, incomplete or misleading information contained in the prospectuses, such partners may in turn
take recourse against CHORUS.
CHORUS predominantly distributed investments in the funds initiated by it through third party
distributors. Accordingly, in addition to prospectus liability risks, a liability of CHORUS may arise based on
errors or misrepresentations made in the context of investment advice given to investors by such third
party distribution partners regarding the investment in the funds. The same risk exists if investment advice
given by distribution partners was inadequate with respect to the concrete investor. Such liability could
exist if the distribution partners who distributed the fund investments to the customers would be deemed
to be vicarious agents (Erfüllungsgehilfen) of the responsible issuer of the prospectus. Such a liability
from wrongful or inadequate investment advice could also exist in cases where members of the CHORUS
Group itself distributed the fund investments to the customers.
Members of the CHORUS Group have been subject to damage claims in the past raised by fund
investors in court based on prospectus liability. Such claimants have not been successful yet and courts
of first instance so far have held that CHORUS is not liable in connection with the initiation and distribution
of fund investments. However, several investors have appealed such court decisions, and it cannot be
excluded that such investors prevail in the higher instances or that other investors could successfully
raise claims in the future and prevail in court with such claims. It also cannot be excluded that any dispute
of former investors with CHORUS, or any litigation of such investors against CHORUS, regarding fund
investments in the past, if publicly known, have a negative effect on CHORUS’ image and, in
consequence, on its current business operations and the implementation of its strategy.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
31.
CHORUS’ insurance coverage may not be adequate or may increase in cost or unexpected
events may result in its insurance coverage being inadequate.
CHORUS is exposed to risks due to external factors beyond its control, including, but not limited
to, accidents, vandalism, acts of terrorism and natural hazards caused by hail, lightning, snow, storm, fire,
heavy rainfall, landslides, earthquakes, floods or other events, that could potentially lead to the
interruption of operation of solar and wind parks, damage to persons, third-party property or the
environment in general. CHORUS’ insurance policies are subject to exclusions and limitations, and it
cannot be guaranteed that all material events of damage or loss will be fully or adequately covered by an
applicable insurance policy. As a result, the amount of any costs, including fines or damages that
CHORUS might incur in such circumstances, could substantially exceed any insurance CHORUS has in
place to cover such losses. In addition, CHORUS’ insurance providers could refuse to make payments
although the risk is insured or become insolvent. In case of any of these events occurring, alone or in
combination, they could have a material adverse effect on CHORUS’ business, financial condition, cash
flows and results of operations.
72
32.
The quarterly results of the CHORUS Group are cyclical and subject to fluctuations.
Most of CHORUS’ results stem either directly or indirectly from the operation of its solar and wind
parks. This business activity of CHORUS is subject to fluctuations mainly due to the dependency on
prevailing weather conditions. From CHORUS’ experience, a high percentage of the solar energy is
produced in spring and summer (between April and September), whereas large parts of the wind energy
is generated in the fall and winter months. This may lead to fluctuations in CHORUS’ results during a
fiscal year but may also lead to fluctuations in the recognition of CHORUS in the capital markets and
associated therewith to fluctuations in the recognition regarding the prospects of business success and
creditworthiness.
33.
The Issuer has prepared pro forma financial information for purposes of this Prospectus.
Pro forma financial information describes only a hypothetical situation and, therefore,
may not reflect the results of operation of the CHORUS Group at the dates or for the time
periods indicated.
The CHORUS Group’s unaudited pro forma financial information for the year ended
December 31, 2014 contained in the Prospectus may not be a precise indicator of its future performance,
nor reflect what its combined results of operations would have been if the business of the CHORUS
Group had been operated as a group of companies (Konzern) on a fully consolidated basis during the
periods presented in the pro forma financial information nor indicate the group’s future results of
operations.
The CHORUS Group’s pro forma financial information for the year ended December 31, 2014
depict the CHORUS Group as if the Fund KGs’ Contributions (as defined below under III.1.) had already
become effective on January 1, 2014 and aim to provide an estimate of the results of operations of the
CHORUS Group upon disclosure of hidden reserves. The pro forma financial information was prepared
based on the combination of the stand-alone historical financial information of the different companies of
the CHORUS Group (subject to certain adjustments as described in the notes to the pro forma financial
information).
Therefore, the pro forma financial information describes only a hypothetical situation and thus,
due to its nature, the presentation does not reflect the results of operations of the CHORUS Group upon
completion of the Fund KGs’ Contributions (as defined below under III.1.) end of 2014. The presentation
of the pro forma financial information is based on information available, preliminary estimates and certain
pro forma assumptions, as described therein. The pro forma financial information is intended for
illustrative purposes only.
In addition, the CHORUS Group’s pro forma financial information for the year ended
December 31, 2014 may: (i) not be indicative of CHORUS’ future performance; (ii) not reflect what its
combined results of operations would have been if the CHORUS Group had been operating as an
independent company during the periods presented; or (iii) not indicate CHORUS’ future results of
operations. The pro forma financial information neither contains potential synergies nor cost savings, nor
a normalization of any restructuring or any additional future expenses that could result from the Fund
KGs’ Contributions (as defined below under III.1). Furthermore, the pro forma financial information is only
meaningful in conjunction with the consolidated financial statements and the combined financial
statements of the Issuer for 2014.
34.
The financial information presented in this Prospectus may not be comparable and may
not be representative of CHORUS’ results as an independent listed consolidated group
going forward.
The Company has a complex financial history. It was incorporated on August 4, 2014 and in
December 2014, it acquired all shares in the holding and management company CHORUS GmbH as well
as all shares in the 74 contributed holding and operating entities owning the solar and wind parks in
various jurisdictions. Consequently, neither stand-alone nor consolidated financial statements of the
Company exist that cover the last three financial years of the Group’s business. Due to its complex
financial history, the Company has prepared combined financial statements for 2012 - 2014 showing the
entire CHORUS Group up to the effective date of the above contributions. As a result of the acquisition of
all shares in CHORUS GmbH and its subsidiaries and the 74 holding and operating entities, control was
73
established between CHORUS Clean Energy AG as parent and such contributed entities, resulting in the
preparation of consolidated financial statements.
However, the audited consolidated financial statements of CHORUS Clean Energy AG as of and
for the financial year ended December 31, 2014 included in this Prospectus only show financial
information on the Issuer with its subsidiary CHORUS GmbH and its subsidiaries, but, with the exception
of the consolidated statements of financial position as of December 31, 2014, not with the entire
CHORUS Group with all of the 74 contributed holding and operating entities holding the solar and wind
parks. The reason for this is that these consolidated financial statements are based on the principle of
control pursuant to IFRS 10 since neither CHORUS Clean Energy AG nor CHORUS GmbH have
controlled the 74 holding and operating entities until their contribution. Therefore, it was not permissible to
include the holding and operating entities holding the solar and wind parks of the CHORUS Group in such
consolidated financial statements under IFRS until their contribution. Accordingly, the comparability of the
combined financial statements for the short financial year 2014 and the consolidated financial statements
for 2014 is very limited.
In addition, for the reasons stated above, the audited consolidated financial statements of
CHORUS Clean Energy AG as of and for the financial year ended December 31, 2014 included in this
Prospectus may not necessarily be indicative of the consolidated results of CHORUS’ operations,
financial position and cash flows in the future. For the same reason, the audited consolidated financial
statements of CHORUS Clean Energy AG as of and for the financial year ended December 31, 2014 also
differ significantly from, and are hard to compare with, the unaudited consolidated interim financial
statements of CHORUS Clean Energy AG as of and for the three-month period ended March 31, 2015
included in this Prospectus, which present the consolidated results of CHORUS’ operations, financial
position and cash flows for the three-month period.
III.
RISKS RELATED
1.
The Issuer is subject to risks in connection with the Reorganization of the CHORUS
Group.
TO THE
REORGANIZATION
OF THE
CHORUS GROUP
PRE-IPO
In the course of its Reorganization at the end of 2014, the Issuer increased its capital against
cash as well as various contributions in kind of shares in a total of 74 companies (SPVs) directly or
indirectly operating the solar and wind parks by 20 German limited partnerships (the ‘‘Fund KGs’’)
managed by CHORUS and assigning loan agreement to the Issuer against issuance of shares (together,
the ‘‘Fund KGs’ Contributions’’). Furthermore, in connection with the Reorganization a company
formerly held by the current chairman of the supervisory board of the Issuer, Peter Heidecker, PELABA
Verwaltungs GmbH, was merged with CHORUS GmbH, as a result of which CHORUS GmbH as
surviving entity assumed all liabilities of PELABA Verwaltungs GmbH as merged entity by operation of
law.
The Fund KGs’ Contributions were approved by way of partners’ resolutions at the level of the
Fund KGs in 2014. While at the date of this Prospectus there are no court proceedings pending
challenging such partners’ resolutions—nullity and voidance actions in court initiated by investors of
some of the Fund KGs against the partners’ resolutions of their Fund KGs approving the Fund KGs’
Contributions in the aftermath of the resolutions have been revoked prior to the date hereof—CHORUS
cannot exclude that other former Fund KG investors raise similar claims or initiate similar court actions in
the future, which may, in the event the claimants prevail, lead to payment of damages to the claimants or
result in some of the Fund KGs’ Contributions having to be unwound.
In preparation of the Fund KGs’ Contributions, the valuations of the SPVs operating the solar and
wind parks in Germany, Italy, Austria and France, which have been directly and indirectly contributed to
the Issuer and on the basis of which shares of the Issuer have been issued to the Fund KGs may turn out
to be wrong or insufficient. In this case, current or former investors partners of the Fund KGs may raise
damage claims against the Issuer or other companies of the CHORUS Group which have been involved
in the structuring of the Reorganization and the Fund KGs’ Contributions.
The information provided to the investors of the Fund KGs with regard to the Reorganization and
the Fund KGs’ Contributions and in preparation of the partners’ resolutions at the level of the Fund KGs
approving the Fund KGs’ Contributions may turn out to be incorrect, insufficient or misleading and such
74
investors may base potential damage claims against the Issuer or other companies of the CHORUS
Group which have been involved in the structuring of the Reorganization on such deficient information.
Furthermore, there is a risk that the Issuer has assumed unknown liabilities of the companies
directly or indirectly operating the solar and wind parks through the Fund KGs’ Contributions of the shares
in such operating companies by the Fund KGs in the course of the Reorganization. In addition,
CHORUS GmbH may also have assumed unknown liabilities and potential litigation risks through the
merger of PELABA Verwaltungs GmbH. No assurance can be made that CHORUS may adequately
respond to such liabilities or that such liabilities would be covered by existing insurances taken out by the
CHORUS Group.
The materialization of any of these risks could have a material adverse effect on CHORUS’
business, financial condition, cash flows and results of operations.
2.
Expected synergies from the new group structure may not, not to the degree expected or
later than expected be realized.
CHORUS expects to be able to raise certain cost synergies as a result of the Reorganization of
the CHORUS Group by the end of 2014, in particular through a simplification of the group structure
through follow-on mergers and cancellation of intermediate holding companies in particular in Italy which
are not necessary in the new group anymore. The realization and size of these cost synergies depends on
the success and speed of the implementation of such further Reorganization measures. There can be no
guarantee that CHORUS will be able to successfully implement such measures at all or as planned on
time. In particular, increased costs stemming from the Reorganization may lead to a delay of synergies or
no synergies at all. Furthermore, delays could result from the necessary participation of public authorities,
courts and other parties to be involved in Italy, which from CHORUS’ experience sometimes is hard to
predict. Furthermore, CHORUS might overestimate the effect of the expected cost synergies, which may
be smaller than expected. This could have a material adverse effect on CHORUS’ financial condition,
cash flows and results of operations.
3.
CHORUS may be exposed to conflicts of interest in connection with investment
opportunities regarding new renewable energy facilities as a result of its institutional fund
management/advisory services in parallel to acquisitions for its ‘‘own’’ asset portfolio.
The Luxembourg-based institutional fund initiated by CHORUS, CHORUS Infrastructure
Fund S.A. SICAV-SIF (‘‘CHORUS SICAV-SIF’’), and its sub-funds, other investment vehicles set up by
CHORUS for professional third party investors and CHORUS to a certain degree target the same
investment opportunities in the renewable energy sector with respect to potential acquisitions of solar and
wind parts in select European jurisdictions. CHORUS believes that it will be able to balance potential
conflicts of interest resulting from the fact that CHORUS is trying to identify suitable and attractive
investment opportunities in the renewable energy sector for its own investments, for investments for the
sub-funds of CHORUS SICAV-SIF and potentially also for investment vehicles of professional third party
investors by applying the necessary flexibility. As a general rule, CHORUS will apply those funds first
which have been raised earlier. Generally, it is a management decision on a case-by-case basis which
company should pursue the investment. Such decision takes commercial and strategic reasons into
consideration, such as potential synergy effects, but also the long-term development of the asset
portfolios of CHORUS, CHORUS SICAV-SIF or the professional third party investors, with a view to
optimize profits (and bearing in mind that CHORUS will indirectly benefit from investments executed for
CHORUS SICAV-SIF or professional third party investors through the fees generated by asset
management services regarding such investment as well). However, instances may arise where, as a
result of a management decision, an attractive investment opportunity which should have been pursued
pursuant to the above guidelines by CHORUS for its own portfolio of clean energy facilities is not pursued
by CHORUS for its own portfolio but where the acquisition is executed by a sub-fund of CHORUS
SICAV-SIF or for an investment vehicle of professional third party investor instead. In such case,
CHORUS might miss out on own profitable energy generation business, which may not be fully mitigated
through the additional management fees generated by CHORUS and its subsidiaries when managing
such new asset for the sub-fund of CHORUS SICAV-SIF or the investment vehicle of professional third
party investors. This could have a material adverse effect on CHORUS’ business, financial condition,
cash flows and results of operations.
75
IV.
RISKS RELATING
1.
There is no existing market for the Issuer’s shares, and an active trading market for the
Issuer’s shares may fail to develop after the Offering.
TO THE
OFFERING
AND THE
SHARES
Prior to the Offering, there was no public trading market for the Issuer’s shares. The Issuer
intends to list its shares on the regulated market (regulierter Markt) (Prime Standard) of the Frankfurt
Stock Exchange. There can be no assurance that, following the listing, a liquid trading in CHORUS’
shares will develop and become established. If there is no or only limited active trading in CHORUS’
shares, investors might be unable to sell their shares quickly or at the market price.
2.
The market price of the Issuer’s shares may deviate significantly from the offer price and
the share price or the trading volume of the Issuer’s shares could fluctuate significantly.
As the initial public offering price for the Issuer’s shares will be determined by negotiations
between the Issuer, Joh. Berenberg, Gossler & Co. KG and BHF-BANK Aktiengesellschaft and based on
demand for the shares during the offer period, it may not be indicative of, and may deviate significantly
from, prices that will prevail in the market following this Offering.
Following the Offering, the trading volume and price of the Issuer’s shares may fluctuate
significantly as a result of a variety of factors, including its actual or anticipated financial performance,
changes in earnings forecasts, the operating and share price performance of other companies in the
industry and markets in which the Issuer operates, the Issuer’s level of debt, its liquidity, newly acquired
assets or services offered by the Issuer or its competitors, changes in or failure to meet stock analysts’
expectations, legislative and regulatory developments affecting the Issuer’s business, supply and
demand for its shares, changes in general market conditions and other factors beyond its control.
Moreover, the general volatility of share prices may create pressure on the share price of the Issuer even
if there might be no reason for this in the Issuer’s operations or earnings potential. The market price of the
Issuer’s shares could fall if this risk were to materialize, in which case investors could lose some or all of
their investment.
3.
Any future sales of the Issuer’s shares by its existing shareholders or investors acquiring
shares in the Offering could depress the market price of the Issuer’s shares.
Upon
completion
of
the
Offering,
the
major
shareholder
PELABA
Anlagenverwaltungs GmbH & Co. KG (the ‘‘Major Shareholder’’) will continue to be CHORUS’ largest
shareholder. PELABA Anlagenverwaltungs GmbH & Co. KG will, together with PELABA
Ökofinanz GmbH, hold approximately 11.53% of the shares (assuming the placement of 12,000,000 new
shares and exercise of the Greenshoe option in full). The market price of the Issuer’s shares could fall
significantly if the Major Shareholder sells a substantial number of its shares in the market, or if the market
believes that such sales might occur. Such sale might occur after the lock-up period contained in the
underwriting agreement entered into among the Issuer, the Major Shareholder and the Underwriters on or
about June 19, 2015 (the ‘‘Underwriting Agreement’’), pursuant to which the Major Shareholder agreed
with Joh. Berenberg, Gossler & Co. KG and BHF-BANK Aktiengesellschaft on certain restrictions, e.g., in
regard to the sale of shares, during the period ending 18 months after the date of the first day of trading of
the shares of the Issuer. Further, it cannot be excluded that the Major Shareholder sells shares despite
such lock-up agreement.
The same risk could materialize if other groups of large shareholders or if large numbers of
former limited partners of the Fund KGs initiated by CHORUS who received shares in the Issuer through
distribution of such shares by their Fund KGs execute the sale of a substantial number of the Issuer’s
shares in the market simultaneously or in close proximity to each other, or if the market believes that such
sales could occur either in connection with the Offering or anytime thereafter. The former Fund KG
shareholders will hold approximately one third of the shares (assuming the placement of 12,000,000 new
shares and exercise of the Greenshoe option in full). These shareholders are not subject to any lock-up
for a certain period of time after the Offering and may use an existing liquidity of the shares after the
Offering for a realization of their former investment in the Fund KGs and try to sell their shares in the
Issuer.
In addition, the sale, or market expectation of a sale of a large number of shares by the Major
Shareholder or other significant shareholders could make it difficult for the Issuer to issue new shares on
favorable terms in the future.
76
4.
The interests of the Issuer’s Major Shareholder may deviate from, or conflict with, the
Issuer’s or its other shareholders’ interests.
Upon completion of the Offering, the Major Shareholder, together with PELABA
Ökofinanz GmbH, will be holding approximately 11.53% of the issued shares (assuming the placement of
12,000,000 new shares and exercise of the Greenshoe option in full). Due to its relatively large
shareholding, the Major Shareholder will be in a position to exert substantial influence at the Issuer’s
general shareholders’ meeting and, consequently, on matters decided by the Issuer’s general
shareholders’ meeting, including the appointment of supervisory board members, the distribution of
dividends, and any proposed capital increases. The Major Shareholder’s future stake in the Issuer would
endow it with the ability to block certain corporate measures that require the approval of the Issuer’s
general shareholders’ meeting. In addition, the interests of the Major Shareholder may substantially
deviate from, or conflict with, the Issuer’s interests or the interests of the Issuer’s other shareholders.
There is no assurance that the Major Shareholder will exercise its influence over the Issuer in a way that
serves the interests of the Issuer’s other shareholders.
5.
The Issuer will have broad discretion in how it uses the net proceeds from the Offering,
and if the Issuer fails to use them effectively, the price of the Issuer’s shares may decline.
The Issuer’s management will have broad discretion in its use of the net proceeds of the Offering.
The Issuer currently intends to use the net proceeds from the Offering for the acquisition of further
renewable energy facilities and for the expansion of its business line ‘‘asset management’’. However,
these plans may change and the Issuer’s management could fail to use these proceeds to improve or
maintain the operating results and financial condition of the CHORUS Group or to enhance the value of
the Issuer’s shares. Any failure to use the net proceeds from this Offering effectively may result in
financial losses that could have a material adverse effect on the Issuer’s business, financial condition,
cash flows, results of operations and the value of the Issuer’s direct and indirect interests in its
subsidiaries, and directly or indirectly on the Issuer’s business, financial condition, cash flows and results
of operations.
6.
The Issuer may not be able to pay dividends in the future (or may be limited in its ability to
pay dividends under future finance agreements).
The decision of the Issuer’s general meeting as to whether to distribute dividends in the future
depends on a number of factors, including, among other things, its results of operations and its financial
and capital expenditure requirements, as well as on the availability of distributable profits and reserves
based on the unconsolidated financial statements of the Issuer prepared in accordance with the German
Commercial Code (Handelsgesetzbuch – ‘‘HGB’’). There can be no assurances that the Issuer’s or its
subsidiaries’ performance will allow CHORUS to pay dividends consistent with the dividend policy. In
particular, the ability to pay dividends may be impaired if any of the risks described in this section A. ‘‘Risk
Factors’’ were to occur. Furthermore, the dividend policy may be subject to changes as the management
board may revisit the dividend policy from time to time. If the Issuer does not have distributable profits
available in accordance with HGB, no dividends may be paid out. Furthermore, future loan agreements
may contain restrictions in respect of the distribution of dividends by the Issuer. Any of these factors,
individually or in combination, could restrict the Issuer’s ability to pay dividends.
7.
The Offering might not take place, and investors could lose security commissions already
paid and bear the risk of not covering any short sales of the shares.
The Underwriting Agreement provides that the Underwriters may terminate the Underwriting
Agreement under certain circumstances, even after the commencement of trading (Handelsaufnahme) of
the shares, up to delivery and payment. In such event, the Offering will not take place. Any allotments of
shares to investors which have already occurred will be invalid, and investors will not have any claim to a
delivery of those shares. Any claims in respect of security commissions and costs incurred in connection
with the subscription by an investor will be based solely on the legal relationship between the investors
and the institution to which they submitted their purchase orders. Investors who have made short sales
bear the risk that they will not be able to satisfy their obligations to deliver the shares.
77
8.
CHORUS may violate its post-admission obligations with regard to the exchange listing
on the regulated market or may incur costs due to the compliance with these obligations.
The disclosure and compliance obligations resulting from the intended exchange listing of
CHORUS on the regulated market (regulierter Markt) of the Frankfurt Stock Exchange (Prime Standard)
will place higher demands on CHORUS’ finance and accounting functions. Higher administrative costs
may be a consequence. Any breach of these post-admission obligations could have a material adverse
effect on the exchange price of the CHORUS share, also as a consequence of the resulting loss of
confidence among investors.
9.
Future capitalization measures may lead to substantial dilution, i.e., a reduction in the
value of the shares and the control rights of existing shareholders’ interests in the Issuer.
Future offerings of debt or equity securities may adversely affect the market price of the
Issuer’s shares.
CHORUS may require additional capital in the future to finance its business operations and
growth. The raising of additional equity through the issuance of new shares, the potential exercise of
conversion or option rights by holders of convertible bonds or bonds with warrants or the fulfillment of
conversion obligations relating to such bonds, which may be issued in the future, and the exercise of
stock option rights which may be granted to the management board members and certain other
employees, may dilute shareholder interests. The Issuer’s articles of association (the ‘‘Articles of
Association’’) currently provide for the issuance of up to 8,724,269 additional shares as authorized
capital, and up to 8,724,269 additional shares as conditional capital. Furthermore, the general
shareholders’ meeting of the Company of May 20, 2015 has resolved upon an additional authorized
capital of e2,275,731 to be registered in the commercial register upon implementation of the capital
increase underlying the New Shares. The Issuer may issue all of these shares without any action or
approval by the shareholders, and under certain limited conditions, for example in the event of a capital
increase against contributions in kind, without reserving any pre-emptive subscription rights for the
shareholders. Because the Issuer’s decision to issue securities in any future offering will depend on
market conditions and other factors beyond the Issuer’s control, CHORUS cannot predict or estimate the
amount, timing or nature of future offerings. Thus, holders of shares bear the risk that future offerings
might reduce the market price of the shares and dilute their shareholdings in the Issuer.
10.
Investors with a reference currency other than the euro may become subject to certain
foreign exchange risks when investing in the Issuer’s shares.
The Issuer’s equity capital is denominated in euro, and all dividends on the shares will be paid in
euro. Investors whose reference currency is other than the euro may be adversely affected by any
reduction in the value of the euro or any redenomination of the euro relative to the respective investor’s
reference currency. In addition, such investors could incur additional transaction costs in converting euro
or such redenominated currency into another currency. Investors whose reference currency is other than
the euro are therefore urged to consult their financial advisors.
11.
Shareholders outside of Germany may not be able to participate in future rights offerings.
Under German corporate law, shareholders generally have subscription rights (Bezugsrechte)
relating to any shares issued in a capital increase, in proportion to their shareholding. Due to restrictions
in other jurisdictions, including the United States, shareholders outside of Germany may be prohibited,
under applicable law, or excluded under the terms of the capital increase, from participating in future
capital increases. In addition, shareholders may not be able to participate in potential future capital
increases if they do not have the funds necessary to subscribe for new shares or if the subscription rights
are excluded. This could result in dilution of those shareholders’ proportionate interests in the Issuer.
Open market purchases to counteract such dilution could be on terms less favorable than those offered to
other shareholders in connection with a capital increase.
78
B. GENERAL INFORMATION
I.
RESPONSIBILITY STATEMENT
CHORUS Clean Energy AG, with its registered office at Prof.-Messerschmitt-Str. 3,
85579 Neubiberg (county of Munich), Germany, and registered with the commercial register
(Handelsregister) of the local court (Amtsgericht) of Munich, Germany (the ‘‘Commercial Register’’),
under the number HRB 213342, together with Joh. Berenberg, Gossler & Co. KG, Hamburg, Germany
(‘‘Berenberg’’), and BHF-BANK Aktiengesellschaft, Frankfurt, Germany (‘‘BHF-BANK’’, and together
with Berenberg, the ‘‘Underwriters’’), assume responsibility for the contents of this Prospectus pursuant
to Section 5(4) of the German Securities Prospectus Act (Wertpapierprospektgesetz) and hereby declare
that, to the best of their knowledge, the information contained in this Prospectus is correct and contains no
material omissions. Notwithstanding Section 16 of the German Securities Prospectus Act
(Wertpapierprospektgesetz), neither the Company nor the Underwriters are required by law to update this
Prospectus.
If any claims are asserted before a court of law based on the information contained in this
Prospectus, the investor appearing as plaintiff may have to bear the costs of translating this Prospectus
prior to the commencement of the court proceedings pursuant to the national legislation of the member
states of the European Economic Area (the ‘‘EEA’’).
II.
PURPOSE
OF THE
PROSPECTUS
This Prospectus relates to the offering of 14,647,312 ordinary bearer shares of the Company with
no-par value (Stückaktien), each such share representing a notional value of e1.00 and with full dividend
rights from January 1, 2015, consisting of:
•
12,000,000 newly issued ordinary bearer shares with no-par value (Stückaktien) from the
capital increase against contribution in cash resolved by the Company’s extraordinary
general shareholders’ meeting on May 20, 2015 with exclusion of subscription rights for
existing shareholders (the ‘‘New Shares’’);
•
737,384 existing ordinary bearer shares with no-par value (Stückaktien) from the holdings of
a total of 80 former investors of 13 German limited partnerships5 set-up by CHORUS as
funds (the Fund KGs, as already defined), who will become direct shareholders of the
Company prior to the Offering through transfer and distribution in kind of shares currently still
held by the above Fund KGs (each of these persons, individually, a ‘‘Selling Shareholder’’
and, together, the ‘‘Selling Shareholders’’, and the shares offered by the Selling
Shareholders, the ‘‘Offered Existing Shares’’); and
•
1,909,928 ordinary bearer shares with no-par value (Stückaktien) from the holdings of
CHORUS CleanTech Solar GmbH & Co. KG, CHORUS CleanTech Solar GmbH & Co. 2.
KG, CHORUS CleanTech Solar GmbH & Co. 3. KG, CHORUS CleanTech
Solar GmbH & Co. 4. KG, CHORUS CleanTech Solar GmbH & Co. 5. KG, CHORUS
CleanTech Solar GmbH & Co. 6. KG, CHORUS CleanTech Solar GmbH & Co. 7. KG,
CHORUS CleanTech Solar GmbH & Co. 8. KG, CHORUS CleanTech Solar PP GmbH & Co.
3. KG, CHORUS CleanTech Solar PP GmbH & Co. 4. KG, CHORUS CleanTech Solar
PP GmbH & Co. 5. KG, CHORUS CleanTech Wind PP GmbH & Co. 6. KG, CHORUS
CleanTech Wind PP GmbH & Co. 7. KG, CHORUS CleanTech Wind PP GmbH & Co. 9. KG,
CHORUS CleanTech Solar PP GmbH & Co. 12. KG, CHORUS CleanTech
Wind GmbH & Co. 10. KG, CHORUS CleanTech Wind GmbH & Co. 11. KG, CHORUS
CleanTech Portfolio GmbH & Co. KG, CHORUS Equity CleanTech GmbH & Co. KG and
CHORUS Equity CleanTech GmbH & Co. 2. KG (such shareholders, the ‘‘Lending
Shareholders’’) in connection with a potential over-allotment (the shares of the Lending
Shareholders, the ‘‘Over-Allotment Shares’’ and, together with the New Shares and the
Offered Existing Shares, the ‘‘Offer Shares’’).
5
Namely: CHORUS CleanTech Solar GmbH & Co. KG, CHORUS CleanTech Solar GmbH & Co. 2. KG, CHORUS CleanTech
Solar GmbH & Co. 3. KG, CHORUS CleanTech Solar GmbH & Co. 4. KG, CHORUS CleanTech Solar GmbH & Co. 6. KG,
CHORUS CleanTech Solar GmbH & Co. 7. KG, CHORUS CleanTech Solar GmbH & Co. 8. KG, CHORUS CleanTech
Wind GmbH & Co. 10. KG, CHORUS CleanTech Wind GmbH & Co. 11. KG, CHORUS CleanTech Wind PP GmbH & Co. 9. KG,
CHORUS Equity CleanTech GmbH & Co. 2. KG, CHORUS CleanTech Solar PP GmbH & Co. 5. KG and CHORUS CleanTech
Solar PP GmbH & Co. 13. KG.
79
This Prospectus also relates to the admission to trading on the regulated market segment
(regulierter Markt) of the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse) with simultaneous
admission to the sub-segment thereof with additional post-admission obligations (Prime Standard) of the
Frankfurt Stock Exchange of:
•
17,448,539 ordinary bearer shares with no-par value (Stückaktien) (share capital prior to the
above-mentioned capital increase); and
•
up to 12,000,000 newly issued ordinary bearer shares with no-par value (Stückaktien) as per
the above-mentioned capital increase,
each with a notional value of e1.00 in the share capital and entitlement to full dividend rights for
the year starting January 1, 2015.
The Offering consists of initial public offerings in the Federal Republic of Germany (‘‘Germany’’)
and the Republic of Austria (‘‘Austria’’) and private placements in certain jurisdictions outside Germany
and Austria. The Offer Shares will only be offered and sold outside the United States of America (the
‘‘United States’’) and only in offshore transactions in reliance on Regulation S (‘‘Regulation S’’) under
the United States Securities Act of 1933, as amended (the ‘‘Securities Act’’).
III.
FORWARD-LOOKING STATEMENTS
This Prospectus contains forward-looking statements. A forward-looking statement is any
statement that does not relate to historical facts or events or to facts or events as of the date of this
Prospectus. This applies, in particular, to statements in this Prospectus containing information on our
future earnings capacity, plans and expectations regarding our business growth and profitability, and the
general economic conditions to which we are exposed. Statements made using words such as ‘‘is likely’’,
‘‘believes’’, ‘‘expects’’, ‘‘forecasts’’, ‘‘anticipates’’, ‘‘intends’’, ‘‘plans’’, ‘‘estimates’’ or ‘‘aims’’, or, in each
case, their negative, may be an indication of forward-looking statements. Other forward-looking
statements can be identified in the context in which the statements are made.
The forward-looking statements in this Prospectus are subject to risks and uncertainties, as they
relate to future events, and are based on estimates and assessments made to the best of the Company’s
present knowledge. These forward-looking statements are based on assumptions, uncertainties and
other factors, the occurrence or non-occurrence of which could cause the Company’s actual results,
including the financial condition and profitability of the CHORUS Group, to differ materially from or fail to
meet the expectations expressed or implied in the forward-looking statements. These expressions can be
found in several sections in this Prospectus, particularly in the sections entitled A. ‘‘Risk Factors’’,
E. ‘‘Dividends, Dividend Policy and Earnings per Share’’, K. ‘‘Industry’’, L. ‘‘Business’’ and V. ‘‘Recent
Developments and Outlook’’, and wherever information is contained in this Prospectus regarding our
intentions, beliefs, or current expectations relating to its future financial condition and results of
operations, plans, liquidity, business outlook, growth, strategy and profitability, as well as the economic
and regulatory environment to which we are subject.
In light of these uncertainties and assumptions, it is also possible that the future events
mentioned in this Prospectus might not occur. In addition, the forward-looking estimates and forecasts
reproduced in this Prospectus from third-party reports could prove to be inaccurate (for more information
on the third-party sources used in this Prospectus, see B.IV. ‘‘—Sources of Market Data’’). Actual results,
performance or events may differ materially from those in such statements as a result of, among other
reasons:
•
changes in general and local economic, political, business, industry and tax conditions, in
particular economic conditions in our core markets;
•
changes in laws and regulations applicable to the production and sale of renewable energy
in the countries in which we operate our facilities;
•
further development of the European energy market and the national energy markets in
which we operate;
80
•
changes in prevailing weather and climatic conditions;
•
the ability to find and secure suitable investment opportunities in solar and wind parks (or
related operating companies) and successfully integrate newly acquired companies in
CHORUS’ existing operations;
•
the ability to resell solar and wind parks;
•
risks resulting from defects of building materials, maintenance problems, malfunctions,
unexpected damage, terror attacks and other factors in relation to renewable energy
facilities;
•
the ability to adequately react to technological or market developments and risks in
connection with grid connections, the feed-in of electricity and direct marketing of energy
produced;
•
fluctuations in energy prices for conventional sources of energy;
•
recessionary conditions in the Eurozone, including in Germany, and the possible exit of
certain EU member states from the Eurozone;
•
the ability to initiate further funds for institutional investors or to structure investments for
professional investors in the future and realized expected fees for fund, asset management;
•
risks related to the properties on which wind and solar parks are located and the continued
rights of use;
•
the availability of project financing, the ability to successfully raise capital, service debt
obligations and changes in interest rates;
•
changes in taxes laws and tax rates in the countries in which CHORUS operates;
•
various risks related to the Reorganization of the CHORUS Group prior to the Offering; and
•
certain risks relating to the Offering.
These forward-looking statements speak only as of the date of this Prospectus. Neither the
Company nor any of the Underwriters undertakes any obligation to publicly update any forward-looking
statement, whether as a result of new information, future events or otherwise, or to conform any such
statement to actual events or developments, other than as required by law or regulation. Nevertheless,
the Company has the obligation to disclose any significant new event or significant error or inaccuracy
relating to the information contained in this Prospectus that may affect an assessment of the securities
and occurs or comes to light following the approval of the Prospectus, but before the completion of the
public offering or the inclusion of the securities to trading, whichever is later. These updates must be
disclosed in a prospectus supplement in accordance with Section 16(1) sentence 1 of the German
Securities Prospectus Act (Wertpapierprospektgesetz).
See A. ‘‘Risk Factors’’ for a further description of some of the factors that could influence the
Company’s forward-looking statements.
IV.
SOURCES
OF
MARKET DATA
The information provided in this Prospectus on the market environment, market developments,
growth rates, market trends and on the competitive situation in the markets and segments in which
CHORUS operates is based (to the extent not otherwise indicated) are based on the Issuer’s and the
Underwriters’ assessments. These assessments, in turn, are based in part on internal observations of the
81
market and on various market studies, third-party data, statistical information and reports. The following
sources were used in the preparation of this Prospectus:
•
Arbeitsgemeinschaft
Energiebilanzen
Energieträgern 1990-2014;
e.V.
(‘‘AEGB’’),
Stromerzeugung
•
B. Burger, Fraunhofer ISE, BMU, EEG 2013 and BMWi Energiedaten in Fraunhofer ISE,
Photovoltaics Report, dated October 24, 2014;
•
Bundesministerium für Wirtschaft und Energie (‘‘BMWi’’), Erneuerbare Energien im Jahr
2014;
•
Bundesverband der Energie- und Wasserwirtschaft e.V. (‘‘BDEW’’), Electricity Consumption
in Private Households, October 2013;
•
Bundesverband Solarwirtschaft (‘‘BSW-Solar’’),
Solarstrom und Speicher, vom 08.01.2015;
•
Deutsche WindGuard, Status of Land-based Wind Energy Development in Germany Year
2014;
•
European Photovoltaic Industry Association (‘‘EPIA’’), Global Market Outlook For
Photovoltaics 2014-2018;
•
Eurostat, Share of renewable energy in gross final energy consumption, data under
http://ec.europa.eu/eurostat/tgm/table.do?tab=table&init=1&language=en&pcode=
t2020_31&plugin=1 (last update: April 28, 2015);
•
European Wind Energy Association (‘‘EWEA’’), Wind in power—2014 European statistics,
dated February 2015;
•
Frankfurt School-UNEP Collaborating Centre for Climate & Sustainable Energy Finance,
Global Trends in Renewable Energy Investment 2015;
•
Fraunhofer Institute for Solar Energy Systems ISE (‘‘Fraunhofer ISE’’), Recent Facts about
Photovoltaics in Germany, dated January 7, 2015;
•
Fraunhofer Institute for Wind Energy and Energy System System Technology (‘‘Fraunhofer
IWES’’), Windenergie Report Deutschland 2013;
•
Global Wind Energy Council (‘‘GWEC’’), Global Wind Report Annual Market Update 2013;
•
GWEC, Global Wind Report Annual Market Update 2014;
•
Holman, Fenwick, Willan, Solar Energy in France;
•
International Energy Agency (‘‘IEA’’), Wind 2013 Annual Report, dated August 2014; and
•
IEA, World Energy Outlook 2013.
Pressemitteilung,
Rekordjahr
nach
für
It should be noted in particular that reference has been made in this Prospectus to information
concerning markets and market trends. Such information was obtained from the above-mentioned
market studies and other sources. The Company has accurately reproduced such third-party information
and, as far as the Company is aware and is able to ascertain from information published by these third
parties, no facts have been omitted, which would render the reproduced information inaccurate or
misleading. Nevertheless, prospective investors are advised to consider this data with caution. For
example, market studies are often based on information or assumptions that may not be accurate or
appropriate, and their methodology is inherently predictive and speculative.
82
Irrespective of the assumption of responsibility for the content of this Prospectus by the Company
and the Underwriters (see B.I. ‘‘—Responsibility Statement’’), neither the Company nor the Underwriters
have independently verified the figures, market data or other information on which third parties have
based their studies. The Company and the Underwriters therefore do not guarantee nor assume
responsibility for the accuracy of the information from third-party studies presented in this Prospectus.
Prospective investors should note that the Company’s own estimates and statements of opinion and
belief are not always based on studies of third parties.
This Prospectus also contains estimates of market data and information derived therefrom which
cannot be gathered from publications by market research institutions or any other independent sources.
Such information is based on the Company’s own internal estimates. In many cases there is no publicly
available information on such market data, for example from industry associations, public authorities or
other organizations and institutions. The Company believes that its estimates of market data and
information derived therefrom are helpful in order to give investors a better understanding of the industry
in which it operates as well as the CHORUS Group’s position within this industry. Although the Company
believes that its internal market observations are reliable, the Company’s own estimates are not reviewed
or verified by any external sources. The Company assumes no responsibility for the accuracy of its own
estimates and the information derived therefrom. These may deviate from estimates made by
competitors of the CHORUS Group or future statistics by market research institutes or other independent
sources.
V.
DOCUMENTS AVAILABLE
FOR INSPECTION
For the period during which the Prospectus is valid, printed copies of the following documents will be
available for inspection during regular business hours at the Company’s offices at Prof.-Messerschmitt-Str. 3,
85579 Neubiberg (county of Munich), Germany (tel.: +49 (0)89 4423 060-0):
•
the Company’s Articles of Association;
•
the Company’s audited consolidated financial statements as of and for the year ended
December 31, 2014, prepared in accordance with International Financial Reporting
Standards as adopted in the European Union (‘‘IFRS’’) (the ‘‘Consolidated Financial
Statements 2014’’);
•
the Company’s unaudited interim condensed consolidated financial statements as of and for
the three month period ended March 31, 2015, prepared in accordance with IFRS (the
‘‘Unaudited Interim Condensed Consolidated Financial Statements’’);
•
the Company’s audited combined financial statements as of and for the years ended
December 31, 2012 and 2013 as of and for the short financial year ended December 17,
2014, prepared in accordance with IFRS (the ‘‘Combined Financial Statements’’);
•
the Company’s audited unconsolidated financial statements as of and for the short financial
year ended December 31, 2014, prepared in accordance with the HGB; and
•
the Company’s unaudited pro forma financial information for the year ended December 31,
2014, prepared in accordance with the German Institute of Public Auditors (Institut der
Wirtschaftsprüfer in Deutschland e.V.—‘‘IDW’’) Accounting Practice Statement: Preparation
of Pro Forma Financial Information (IDW AcPS AAB 1.004) (the ‘‘Pro-forma Consolidated
Financial Information’’).
The annual financial statements referred to above are also published in the German Federal
Gazette (Bundesanzeiger).
The Company’s future consolidated annual and interim financial statements will be available from
the Company on its website (http://www.chorus-gruppe.de/en/investor-relations/publications), from the
German Company Register (Unternehmensregister) (www.unternehmensregister.de), from the paying
agent designated in this Prospectus (see Q.IV. ‘‘General Information about CHORUS Clean Energy AG
and the CHORUS Group—Notices, Paying Agent’’) and at the Company’s office at Prof.Messerschmitt-Str. 3, 85579 Neubiberg (county of Munich), Germany.
83
VI.
CURRENCY PRESENTATION
AND
PRESENTATION
OF
FIGURES
In this Prospectus, ‘‘euro’’, ‘‘EUR’’ and ‘‘g’’ refer to the single European currency adopted by
certain participating member states of the European Union (the ‘‘EU’’) as of January 1, 1999.
Where financial data in this Prospectus is labelled ‘‘audited’’, this means that it has been taken
from the audited financial statements mentioned above. The label ‘‘unaudited’’ is used in this Prospectus
to indicate financial data that has not been taken from the audited financial statements mentioned above,
but was taken either from the CHORUS Group’s accounting or controlling records, or has been calculated
on the basis of figures taken from the above-mentioned sources, unless otherwise indicated. All of the
financial data presented in this Prospectus are shown in thousands of euro (in e thousands), except as
otherwise stated.
Certain financial data in the text and in the tables (including percentages) in this Prospectus have
been rounded according to established commercial standards, whereby aggregate amounts (sum totals,
sub-totals, differences or amounts put in relation) are calculated on the underlying unrounded amounts.
As a result, the aggregate amounts (sum totals or sub-totals or differences or if numbers are put in
relation) may not correspond in all cases to the corresponding rounded amounts contained in the
following text and tables. Furthermore, in the tables, these rounded figures may not add up exactly to the
totals contained in the respective tables and charts. The percentage changes that are stated in the text
and the tables have been commercially rounded to one decimal place unless stated otherwise. Financial
information presented in parentheses denotes the presented number is a negative number. With respect
to financial data set out in the main body of the Prospectus (i.e., other than in the section entitled
X. ‘‘Financial Information’’), a dash (‘‘–’’) signifies that the relevant figure is not available, while a zero
(‘‘0’’) signifies that the relevant figure is available but is or has been rounded to zero.
The pro forma financial information used in this Prospectus has been prepared in accordance
with the IDW Accounting Practice Statements: Preparation of Pro Forma Financial Information (IDW
AcPS AAB 1.004).
VII.
PRESENTATION
OF
FINANCIAL INFORMATION
The Company’s financial year equals the calendar year. The short financial year ended
December 17, 2014, presented in the Combined Financial Statements, is referred to in this Prospectus as
‘‘short financial year 2014’’ and the financial years ended December 31, 2014, December 31, 2013 and
December 31, 2012 are referred to in this Prospectus as ‘‘financial year 2014’’ or ‘‘2014’’, ‘‘financial year
2013’’ or ‘‘2013’’ and ‘‘financial year 2012’’ and ‘‘2012’’, respectively.
The Company has appointed KPMG AG Wirtschaftsprüfungsgesellschaft, Ganghoferstr. 29,
80339 Munich, Germany (‘‘KPMG’’), as its auditor for the financial year 2015. KPMG is a member of the
Chamber of Public Accountants (Wirtschaftsprüferkammer), Munich, Germany.
CHORUS Clean Energy AG was formed on July 31, 2014 and was entered into the commercial
register of the local court (Amtsgericht) of Munich, Germany, on August 4, 2014. Furthermore, in
December 2014, CHORUS Clean Energy AG acquired all shares in the holding and management
company CHORUS GmbH (then the parent company of the CHORUS Group) as well as all shares in the
74 contributed holding and operating entities owning the solar and wind parks in various jurisdictions. See
N. ‘‘Reorganization of the CHORUS Group’’. Consequently, neither stand-alone nor consolidated
financial statements of the Company exist that cover the last three financial years of the Group’s
business, and the Company has a ‘‘complex financial history’’ as described in Regulation (EC)
No. 809/2004.
Due to its complex financial history, the Company has prepared combined financial statements in
accordance with the International Financial Reporting Standards (IFRS) as adopted by the European
Union (EU) taking into account the provisions of IFRS 1 for the first-time adoption of IFRS. Since the 74
contributed holding and operating entities were neither under the control of the Company (or any other
entity controlled by the Company) or CHORUS GmbH nor under common control with the Company or
CHORUS GmbH until the Reorganization measures and contribution of such entities occurred in
December 2014, the Combined Financial Statements were prepared on the basis of the so-called
‘‘common management’’ approach in accordance with the working paper of the Fédération des Experts
84
Comptables Européens (FEE) dated February 2013, taking into account the following two binding
elements:
•
First, CHORUS GmbH and its subsidiaries as well as the 74 holding and operating entities
directly and indirectly held by the limited partnerships were under common management in
the years 2014 (up to December 17), 2013, and 2012. This is due to the fact that the entities
held by both CHORUS GmbH as well as the limited partnerships through the personally
liable (general) partners of the limited partnerships, which were subsidiaries of
CHORUS GmbH, were characterized by a common management that ultimately reported
directly or indirectly to the board of directors of CHORUS GmbH at the time.
•
Second, based on the nearly complete provision of services by the respective subsidiaries of
CHORUS GmbH to the individual limited partnerships and the holding and operating entities
held by the limited partnerships in the financial years 2014 (up to December 17), 2013, and
2012, the dependence of certain fees for such services on the overall performance of the
holding and operating entities, and taking common management into account, all of the
entities of the CHORUS Group and the holding and operating entities at such time were
managed as an economic unit and were characterized by a common economic interest of
the shareholders of the CHORUS Group and the limited partnerships. In addition, the
approval of 20 limited partnerships and the shareholders of CHORUS GmbH regarding the
subsequent Reorganization of the CHORUS Group, and, in particular, with respect to the
contributions of the holding and operating entities, can be regarded as evidence of the
common economic interest.
Under the common management approach, the entities of the CHORUS Group and the 74
holding and operating entities were combined for the short financial year 2014 (up to December 17) and
the financial years 2013 and 2012, since they were all under a common management for the respective
periods. Any transactions between entities of the CHORUS Group and the holding and operating entities
included in the combined financial statements were eliminated. The combined financial statements under
the common management approach present the net assets, financial position and results of operations of
CHORUS Clean Energy AG (since its formation), CHORUS GmbH, its subsidiaries and the holding and
operating companies regardless of the ownership structure and any changes therein. See also the
Combined Financial Statements for the financial years 2014, 2013 and 2012 contained in the
X. ‘‘Financial Information’’ section of this Prospectus.
We prepared our Consolidated Financial Statements 2014 and our Unaudited Interim
Condensed Consolidated Financial Statements in accordance with IFRS. Our unconsolidated financial
statements as of and for the financial year ended December 31, 2014 were prepared in accordance with
the HGB. Such consolidated and unconsolidated financial statements were each audited by KPMG, as
stated in their audit opinions (Bestätigungsvermerke) thereon included in this Prospectus. In each case,
KPMG conducted its audits in accordance with Section 317 HGB and German generally accepted
standards for the audit of financial statements promulgated by the Institute of Public Auditors in Germany.
KPMG issued an assurance report on the Pro Forma Consolidated Financial Information in
accordance with the IDW Auditing Practice Statement: Audit of Pro Forma Financial Information (IDW
AuPS 9.960.1).
For further details on the financial information in this Prospectus, see H. ‘‘Selected Financial
Information’’ and J. ‘‘Management’s Discussion and Analysis of Financial Condition and Results of
Operations’’.
85
C. THE OFFERING
I.
SUBJECT MATTER
OF THE
OFFERING
This Prospectus relates to the Offering of 14,647,312 ordinary bearer shares of the Company
with no-par value (Stückaktien), each such share representing a notional value of e1.00 and with full
dividend rights from January 1, 2015, consisting of
•
12,000,000 newly issued ordinary bearer shares with no par value from a capital increase
against cash contributions resolved by an extraordinary general shareholders’ meeting of
the Company on May 20, 2015 with exclusion of subscription rights of the existing
shareholders (the New Shares, as already defined);
•
737,384 existing ordinary bearer shares with no-par value (Stückaktien) from the holdings of
the Selling Shareholders (the Offered Existing Shares, as already defined); and
•
1,909,928 ordinary bearer shares with no-par value (Stückaktien) from the holdings of the
Lending Shareholders (as already defined) in connection with a potential over-allotment (the
Over-Allotment Shares, as already defined, and, together with the New Shares and the
Offered Existing Shares, the Offer Shares, as already defined).
The Offering consists of initial public offerings in Germany and Austria and private placements in
certain jurisdictions outside Germany and Austria. The Company’s shares will only be offered and sold
outside the United States and only in offshore transactions in reliance on Regulation S.
The share capital of the Company represented by the Offer Shares that are the subject of the
Offering including potential over-allotments will total e14,647,312. Thus, approximately 46.71% of the
Company’s shares (after effectuation of the issuance of all New Shares and full exercise of the
Greenshoe Option (as defined below)) will be offered (approximately 43.25% without the Over-Allotment
Shares and without exercise of the Greenshoe Option (as defined below)).
Immediately prior to the Offering, all of the Company’s share capital was held by our existing
shareholders, including the Fund KGs (see O. ‘‘Shareholder Information’’). Following completion of the
Offering and assuming full placement of the Offer Shares and full exercise of the Greenshoe Option (as
defined below), our existing shareholders will hold approximately 53.29% of the Company’s share capital.
The Company will receive the proceeds of the Offering resulting from the sale of the New Shares and, if
and to the extent the Greenshoe Option (as defined below) is exercised, from the exercise of the
Greenshoe Option (as defined below), in each case after deduction of fees and commissions.
The Underwriters are acting in the following capacities: Berenberg is acting as the Sole Global
Coordinator. Berenberg and BHF-BANK are acting as Joint Bookrunners.
II.
PRICE RANGE, OFFER PERIOD, OFFER PRICE
AND
ALLOTMENT
The price range set for the Offering within which purchase orders may be placed is e9.75 to
e12.50 per Offer Share.
The period during which investors may submit purchase orders for the Offer Shares is expected
to begin on June 22, 2015, and is expected to end on July 1, 2015 (the ‘‘Offer Period’’). On the last day of
the Offer Period, offers to purchase may be submitted (i) until 12:00 noon (Central European Summer
Time) (‘‘CEST’’) by private investors and (ii) until 14:00 (CEST) by institutional investors. Purchase orders
must be for at least 10 shares and be expressed in full euro amounts. Multiple purchase orders are
permitted.
Subject to the publication of a supplement to this Prospectus, if required, the Company and the
Sole Global Coordinator reserve the right to increase or decrease the total number of Offer Shares, to
increase or decrease the upper limit and/or the lower limit of the price range and/or to extend or shorten
the Offer Period. Changes in the number of Offer Shares, changes to the price range or the extension or
shortening of the Offer Period will not invalidate any offers to purchase that have already been submitted.
If such change requires the publication of a supplement to this Prospectus, investors who submitted
86
purchase orders before the supplement is published shall have the right, under the German Securities
Prospectus Act (Wertpapierprospektgesetz), to withdraw these offers to purchase within two business
days of the publication of the supplement. Instead of withdrawing the offers to purchase placed prior to the
publication of the supplement, investors may change their orders or place new limited or unlimited offers
to purchase within two business days of the publication of the supplement. To the extent that the terms of
the Offering are changed, such change will be published by means of electronic media (such as Reuters
or Bloomberg) and, if required by the German Securities Trading Act (Wertpapierhandelsgesetz) or the
German Securities Prospectus Act (Wertpapierprospektgesetz), as an ad hoc release via an electronic
information dissemination system, on the Company’s website and as a supplement to this Prospectus. In
such case, investors who have submitted offers to purchase will not be notified individually. Under certain
conditions, the Sole Global Coordinator, on behalf of the Underwriters, may terminate the underwriting
agreement entered into among the Company, the Major Shareholder and the Underwriters on or about
June 19, 2015 (the ‘‘Underwriting Agreement’’), even after commencement of trading (Aufnahme des
Handels) of the Company’s shares on the regulated market segment (regulierter Markt) of the Frankfurt
Stock Exchange (Frankfurter Wertpapierbörse). See U.III. ‘‘Underwriting—Termination/Indemnification’’.
Once the Offer Period has expired, the final number of Offer Shares and the offer price will be
determined by the Company after consultation with the Sole Global Coordinator, on behalf of the
Underwriters, using the order book prepared during the bookbuilding process. This is expected to take
place on or about July 1, 2015. The price will be set on the basis of the purchase orders submitted by
investors during the Offer Period that have been collated in the order book. This method of setting the
number of shares that will be placed at the offer price is principally intended to maximize proceeds.
Consideration will also be given as to whether the offer price and the number of shares to be placed allow
for the reasonable expectation that the share price will demonstrate steady price performance in stock
exchange trading, given the demand for the Company’s shares at the offer price noted in the order book.
Attention will be paid not only to the number of investors willing to purchase shares at a particular offer
price, but also to the composition of the group of investors becoming shareholders in the Company at a
given offer price (so-called investor mix) on the basis of their expected investment horizon and behavior
as shareholders of the Company. For further information regarding allotment criteria see
C.VI. ‘‘—Allotment Criteria’’. The Company and the Selling Shareholders will not charge investors any
expenses or taxes incurred in connection with the Offering.
The final number of Offer Shares and the offer price are expected to be published on or about
July 1, 2015, by means of an ad hoc announcement in various media distributed across the entire
European Economic Area (Medienbündel) and on the Company’s website (www.chorus-gruppe.de).
Investors who have placed purchase offers with one of the Underwriters can obtain information from that
Underwriter about the offer price and the number of Offer Shares allotted to them, at the earliest, on the
first bank working day following the pricing. Trading in the Company’s shares may commence before
investors have received notice of the number of Offer Shares allotted to them. Book-entry delivery of the
allotted Offer Shares against payment of the offer price is expected to occur on July 6, 2015. In particular,
if the placement volume proves insufficient to satisfy all orders placed at the offer price, the Underwriters
reserve the right to reject orders, or to accept them in part only.
87
III.
EXPECTED TIMETABLE
FOR THE
OFFERING
The anticipated timetable for the Offering, is as follows, subject to extension or shortening:
June 19, 2015 ....................
Approval of the Prospectus by the German Federal Financial Services
Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht
or ‘‘BaFin’’)
Notification of the approved Prospectus to the Austrian Financial
Markets Authority (Finanzmarktaufsichtsbehörde or ‘‘FMA’’)
Publication of the approved Prospectus on the Company’s website
(www.chorus-gruppe.de)
June 22, 2015 ....................
Commencement of the Offer Period
Commencement of marketing (roadshow)
Application for admission of the Company’s shares to trading on the
regulated market segment (regulierter Markt) of the Frankfurt Stock
Exchange and, simultaneously, to the sub-segment thereof with
additional post-admission obligations (Prime Standard)
July 1, 2015 .......................
Close of the Offer Period for retail investors at 12:00 (CEST) and for
institutional investors at 14:00 (CEST)
Determination of the offer price and allotment
Publication of offer price and number of shares placed as an ad hoc
announcement through an electronic information dissemination system
across the entire European Economic Area (Medienbündel) and on the
Company’s website (www.chorus-gruppe.de)
July 2, 2015 .......................
Registration of the consummation of the capital increase with the
Commercial Register and creation of the New Shares to be delivered on
the date of the settlement (July 6, 2015)
Admission decision issued by the Frankfurt Stock Exchange
(Frankfurter Wertpapierbörse)
July 3, 2015 .......................
First day of trading
July 6, 2015 .......................
Book-entry delivery of the Offer Shares against payment of the offer
price
The Prospectus (and any supplements thereto) will be published on the Company’s website at
http://www.chorus.de. In addition, copies of the printed Prospectus (and any supplements thereto) will be
available upon publication free of charge during regular business hours at the offices of the Company at
Prof.-Messerschmitt-Str. 3, 85579 Neubiberg (county of Munich), Germany.
IV.
GENERAL
1.
Voting Rights
AND
SPECIFIC INFORMATION CONCERNING
THE
SHARES
Each share carries one vote at the Company’s general shareholders’ meeting. All shares of the
Company have equal rights. There are no restrictions on voting rights; nor do the Company’s
shareholders hold any different voting rights.
2.
Dividend Entitlement and Share in the Liquidation Proceeds
The Offer Shares carry full dividend rights as of January 1, 2015, and their holders have an
interest in any liquidation proceeds proportionate to the notional amount of the share capital attributable
to their shares.
3.
Form and Representation of the Shares
All of the Company’s existing shares have been, and the Offer Shares will be issued as, ordinary
bearer shares with a par value of e1.00 each in accordance with the Company’s Articles of Association.
88
The Company’s current issued share capital of e17,448,539 is represented by one global share certificate
(Globalurkunde) without dividend coupons (the ‘‘Global Share Certificate’’), which has been deposited
with Clearstream Banking AG, Eschborn, Germany.
Pursuant to Section 4(3) of the Company’s Articles of Association, shareholders are not entitled
to request the issuance of individual share certificates for their respective shareholdings at any time. The
Company may print and deliver share certificates that represent one share (individual certificates) or
several shares (global certificates), or convert the shares into another form including uncertificated
securities (Wertrechte) and cancel issued certificates (if any). The Offer Shares carry the same rights as
all other shares of the Company and confer no additional rights or benefits.
4.
Delivery and Settlement
Delivery of the Offer Shares against payment of the offer price and the customary securities
commissions is expected to take place two trading days after commencement of trading of the shares.
The shares will be made available to the shareholders as co-ownership interests in the respective Global
Share Certificates.
At the investor’s option, the Offer Shares purchased in the Offering will be credited to the
securities account maintained by a German bank with Clearstream Banking AG, Mergenthalerallee 61,
65760 Eschborn, Germany, for the account of such investor, or to the securities account of a participant in
Euroclear Bank S.A./N.V., 1, Boulevard Roi Albert II, 1120 Brussels, Belgium, as the operator of
Euroclear Systems, or to Clearstream Banking S.A., 42 Avenue JF Kennedy, 1855 Luxembourg,
Luxembourg.
5.
WKN/ISIN/Common Code/Trading Symbol
German Securities Identification Number (WKN) ...............................................
International Securities Identification Number (ISIN)...........................................
Common Code ............................................................................................
Trading Symbol ...........................................................................................
V.
TRANSFERABILITY
OF THE
A12UL5
DE000A12UL56
122487342
CU1
SHARES
The shares are freely transferable. Except for the restrictions set forth in the section entitled
C.VIII. ‘‘—Market Protection Agreement/Selling Restrictions (Lock-Up)’’, the Company’s shares are not
subject to any restrictions on sale or transfer.
VI.
ALLOTMENT CRITERIA
The allotment of shares to retail investors and institutional investors will be decided after
consultation with the Underwriters. The ultimate decision rests with the Company. Allotments will be
made on the basis of the quality of the individual orders and—in the case of institutional investors—the
quality of the individual investors, as well as other important allotment criteria, for example the timing of
the order, to be determined after consultation with the Underwriters. The Company and the Underwriters
will adhere to the ‘‘Principles for the Allotment of Share Issues to Private Investors’’ (Grundsätze für die
Zuteilung von Aktienemissionen an Privatanleger) issued on June 7, 2000 by the German Commission of
Stock Exchange Experts (Börsensachverständigenkommission) of the German Federal Ministry of
Finance (Bundesministerium der Finanzen). ‘‘Qualified investors’’ (qualifizierte Anleger) under the
German Securities Prospectus Act (Wertpapierprospektgesetz) as well as ‘‘professional clients’’
(professionelle Kunden) and ‘‘eligible counterparties’’ (geeignete Gegenparteien) under the German
Securities Trading Act (Wertpapierhandelsgesetz) are not viewed as ‘‘private investors’’ within the
meaning of the allotment rules. The details of the allotment procedure will be stipulated after expiration of
the Offer Period and published in accordance with the allotment principles.
VII.
STABILIZATION MEASURES, OVER-ALLOTMENTS
AND THE
GREENSHOE OPTION
In connection with the placement of the Offer Shares, the Sole Global Coordinator, on behalf of
the Underwriters, will act as stabilization manager (the ‘‘Stabilization Manager’’) and may, as
stabilization manager acting in accordance with legal requirements (Section 20a(3) of the German
Securities Trading Act (Wertpapierhandelsgesetz) in conjunction with Commission Regulation (EC)
89
No. 2273/2003 of December 22, 2003), make over-allotments and undertake measures aimed at
supporting the stock exchange or market price of the Company’s shares in order to offset any sales
pressure that may exist (stabilization measures).
The Stabilization Manager is under no obligation to take stabilization measures. Therefore, there
is no guarantee that any stabilization measures will be effected. If stabilization measures are taken, they
may be terminated at any time without prior notice. Such measures may be taken as of the date on which
the shares of the Company start trading on the regulated market segment (regulierter Markt) of the
Frankfurt Stock Exchange and to the sub-segment thereof with additional post-admission obligations
(Prime Standard) and must be completed no later than the 30th calendar day after such date (the
‘‘Stabilization Period’’).
Stabilization measures may lead to the stock exchange or market price of the Company’s shares
being higher than would have been the case in the absence of such measures. In addition, such
measures may result in a stock exchange or market price at a level that is not sustainable.
With a view to possible stabilization measures, investors may be allocated up to 1,909,928
additional shares in the Issuer (Over-Allotment Shares, as already defined) (‘‘Over-Allotment’’). For the
purpose of a possible Over-Allotment, the Stabilization Manager, for the account of the Underwriters, will
be provided with up to 1,909,928 Over-Allotment Shares from the holdings of the Lending Shareholders in
the form of a securities loan granted by these shareholders in proportion to their shareholding prior to the
Offering; this number of shares will not exceed 15.00% of the Offer Shares excluding Over-Allotments. In
connection with the Over-Allotment, the Issuer will grant the Underwriters an option to acquire up to
1,909,928 additional Issuer’s shares at the offer price less agreed commissions (the ‘‘Greenshoe
Option’’), which would be issued by the Issuer from the Authorized Capital 2015/I for the sole purpose of
enabling the Stabilization Manager to perform its redelivery obligation under the securities loan with each
of the Lending Shareholders. This option will terminate 30 calendar days after the first day of trading.
The Underwriters are entitled, but not obligated, to exercise the Greenshoe Option to the extent
over-allotments of shares were initially made.
Within one week after the end of the Stabilization Period, an announcement will be published in
the various media outlets distributed across the entire European Economic Area as to whether or not a
stabilization measure has been effected, the date on which such stabilization measure commenced, the
date on which the last stabilization measure was taken, and the price range within which such
stabilization was effected (for each date on which a stabilization measure was effected). The exercise of
the Greenshoe Option, the date of such exercise and the number and type of the relevant shares will also
be published without delay in the manner described above for the publication of information regarding the
implementation of stabilization measures after the end of the Stabilization Period.
VIII.
MARKET PROTECTION AGREEMENT/SELLING RESTRICTIONS (LOCK-UP)
The Company undertook to the Underwriters for a period of six months following the first day of
trading of the shares in the Company on the Frankfurt Stock Exchange, that it will not and will not agree to
without the prior written consent of the Underwriters (which shall not be unreasonably withheld or
delayed):
•
directly nor indirectly issue, sell, offer, commit to sell or otherwise dispose of Shares or
announce such offer; or
•
directly or indirectly issue, securitize, offer, commit to sell, otherwise dispose of any financial
instruments carrying conversion or option rights with respect to the Shares or announce
such offer; or
•
announce or implement a capital increase from authorized capital — with the exception of a
capital increase upon exercise of the Greenshoe Option in connection with this Offering; or
•
submit a resolution for a capital increase including new authorized capital to any
shareholders’ meeting; or
90
•
conduct any transactions (including derivative transactions) that would have an economic
effect similar to the above measures.
This excludes the issuance or sale, as applicable, of shares or other securities issued under
employee participation programs or stock option plans to employees of the Company or its affiliates as
well as the issuance of shares against contributions in kind in connection with any acquisition, equity
investment or joint venture directly to the partner in any such acquisition, equity investment or joint
venture.
By way of lock-up agreements, the existing shareholders of the Company, PELABA
Anlagenverwaltungs GmbH & Co. KG (the ‘‘Major Shareholder’’), a company affiliated with the chairman
of our Supervisory Board Peter Heidecker, and the members of the Management Board of the Company,
Holger Götze, Heinz Jarothe and Helmut Horst, each undertook not to, for a period of six months following
the first day of trading of the Company’s shares on the Frankfurt Stock Exchange (currently expected to
take place on July 3, 2015) and thereafter for another 12 months only upon the prior written consent of the
Sole Global Coordinator (such consent not to be unreasonably withheld or delayed),
•
offer, pledge, allot, market, distribute, sell, transfer or otherwise dispose of, directly or
indirectly (including, but not limited to, the issuance or sale of any securities exchangeable
into Company’s shares), any Company’s shares;
•
cause or approve, directly or indirectly, the announcement, execution or implementation of
any increase in the share capital of the Company or a direct or indirect placement of
Company’s shares;
•
propose, directly or indirectly, any increase in the share capital of the Company to any
meeting of the shareholders for resolution, or vote in favor of such a proposed increase;
•
cause or approve, directly or indirectly, the announcement, execution or proposal of any
issuance of financial instruments constituting options or warrants convertible into
Company’s shares; or
•
enter into a transaction or perform any action economically similar to those described in the
bullets above.
The aforementioned selling restrictions (lock-up) of the Major Shareholder and the members of
our Management Board do not apply to disposals of shares in the Company within the framework of a
public takeover bid pursuant to the German Securities Acquisition and Takeover Act (Wertpapiererwerbsund Übernahmegesetz). Further excluded are transactions by the Major Shareholder with companies
affiliated with the Major Shareholder or the distribution of the Company’s shares by such shareholder to
its shareholder(s), member(s) or partner(s) (as applicable) through dividends in kind, if it can be ensured
that the recipient is subject to the same selling restrictions as the Major Shareholder. PELABA
Ökofinanz GmbH, the other company affiliated with Peter Heidecker holding shares in the Company, has
not entered into a lock-up regarding these 18,597 shares.
Furthermore, as a result of a resolution of the respective fund shareholders the Fund KGs are
only permitted to sell shares in the Company to cover the Fund KGs’ running costs or to transfer shares as
distribution in kind to their fund shareholders.
IX.
ADMISSION
TO
TRADING
AND
LISTING
An application for admission of all the Company’s shares (entire current share capital) to trading
on the regulated market segment (regulierter Markt) of the Frankfurt Stock Exchange and to the
sub-segment thereof with additional post-admission obligations (Prime Standard) is expected to be filed
on June 22, 2015. The listing approval (Zulassungsbeschluss) is expected to be issued on July 2, 2015.
The admission decision is the sole responsibility of the Frankfurt Stock Exchange. The first day of trading
on the Frankfurt Stock Exchange (Notierungsaufnahme) is planned for July 3, 2015.
91
X.
DESIGNATED SPONSOR
The Underwriters will assume the function of a designated sponsors for the Company’s shares
trading on the Frankfurt Stock Exchange, although each designated sponsor is entitled to delegate this
duty to an authorized third-party with the consent of the Company. Pursuant to the designated sponsor
agreements concluded by the Company with the Underwriters, the Underwriters will, among other things,
submit limited orders to buy or sell shares of the Company into the electronic trading system of the
Frankfurt Stock Exchange during regular trading hours. This is designed in particular to achieve higher
liquidity in the trading of the shares.
XI.
INTEREST
OF
PERSONS INVOLVED
IN THE
OFFERING
In connection with the Offering and the admission to trading of the Company’s shares on the
Frankfurt Stock Exchange, the Underwriters have formed a contractual relationship with the Company,
the Major Shareholder and the Selling Shareholders. The Underwriters act for the Company on the
Offering and coordinate the structuring and execution of the Offering. In addition, the Underwriters have
both been appointed to act as designated sponsors for the Company’s shares and Bankhaus Neelmeyer
AG has been appointed to act as paying agent. Upon successful implementation of the Offering, the
Underwriters will receive a commission. As a result of these contractual relationships, the Underwriters
have a financial interest in the success of the Offering.
Furthermore, in connection with the Offering, each of the Underwriters and any of their respective
affiliates, acting as an investor for their own account, may acquire shares in the Offering and in that
capacity may retain, purchase or sell for its own account such shares or related investments and may
offer or sell such shares or other investments otherwise than in connection with the Offering. In addition,
certain of the Underwriters or their affiliates may enter into financing arrangements (including swaps or
contracts for differences) with investors in connection with which the Underwriters (or their affiliates) may
from time to time acquire, hold or dispose of shares in the Company. None of the Underwriters intends to
disclose the extent of any such investment or transactions otherwise than in accordance with any legal or
regulatory obligation to do so or as disclosed in this Prospectus.
COMMERZBANK AG is involved in the technical securities transfer and settlement of the Offered
Existing Shares in the Offering on behalf of the Selling Shareholders and receives a fee for its services,
which to some degree depends on the successful placement of the Offered Existing Shares as part of the
Offering. As a result, COMMERZBANK AG has a financial interest in the success of the Offering.
Some of the Underwriters or their affiliates have, and may from time to time in the future continue
to have, business relations with the CHORUS Group (including lending activities) or may perform
services for the CHORUS Group in the ordinary course of business.
The Selling Shareholders will receive the proceeds of the Offered Existing Shares. Assuming a
full placement of all Offered Existing Shares at the mid-point of the price range, and after deducting fees
and expenses to be paid by the Selling Shareholders in connection with the Offering, the proceeds to the
Selling Shareholders would amount to approximately to e7.66 million, or 5.03% of the total net Offering
proceeds.
The members of our Management Board will each receive a one-off bonus payment if the
Company successfully completes a public offering in 2015 in which the Company receives new equity of
at least e50 million. Furthermore, each board member will receive an increase of their annual base salary
in case of a successful completion of the Offering, the amount of which depends on the amount of gross
proceeds received by the Company from the issuance and placement of the New Shares in the Offering
(including new shares from the exercise of the Greenshoe Option) and is capped at a certain maximum
increase amount per board member. As a result, the members of our Management Board each have a
financial interest in the success of the Offering.
Since the Company will receive the proceeds from the Offering of the New Shares and these will
strengthen the equity capital basis of the Company, all direct and indirect shareholders with an interest in
the Company, in particular the existing shareholders of the Company who are not Selling Shareholders,
including the members of the Management Board (see S.II. ‘‘Management and Governing
Bodies—Management Board’’) and PELABA Anlagenverwaltungs GmbH & Co. KG and PELABA
92
Ökofinanz GmbH (both companies affiliated with the chairman of our Supervisory Board, Peter
Heidecker), have an interest in the implementation of the capital increase to which this Offering relates.
In addition to the afore-mentioned interests, the Company is not aware of any interests which are
material to the Offering and which could be considered conflicting.
93
D. REASONS FOR THE OFFERING AND USE OF PROCEEDS
The Company intends to (i) sell the New Shares and potentially gain additional proceeds from the
exercise of the Greenshoe Option to finance the growth and development of its businesses and (ii) list the
Company’s shares on the regulated market segment (regulierter Markt) of the Frankfurt Stock Exchange
and, simultaneously, on the sub-segment thereof with additional post-admission obligations (Prime
Standard), to gain better access to the capital markets.
The Company will receive the proceeds from the Offering resulting from the sale of the New
Shares and, if and to the extent the Greenshoe Option is exercised by the Underwriters, from the exercise
of the Greenshoe Option, in each case after deduction of fees and commissions. The Company will not
receive any proceeds from the sale of the Offered Existing Shares from the holdings of the Selling
Shareholders.
Costs of the Company related to the Offering are expected to total approximately e10.30 million,
including underwriting commissions (as to details, see U.I. ‘‘Underwriting—Commissions’’) of up to
e5.80 million (assuming full placement of the Offer Shares, full exercise of the Greenshoe Option, full
payment of the incentive fee to the Underwriters and an offer price at the mid-point of price range,
excluding tax effects), and estimated other expenses of e4.50 million.
The Company will pay the portion of the fees of the Underwriters which is associated with the
offer and sale of the New Shares and the exercise of the Greenshoe Option. The Company estimates that
these fees will be between e5.09 million (at the low end of the price range) and e6.52 million (at the high
end of the price range), assuming full placement of the Offer Shares, full exercise of the Greenshoe
Option and full payment of the incentive fee to the Underwriters. The Selling Shareholders will pay the
portion of the fees of the Underwriters which is associated with the offer and sale of the Offered Existing
Shares. The Company and the Selling Shareholders will each pay the total other expenses of the Offering
pro rata to the proceeds of the Offering allocated to them.
Assuming full placement of the New Shares and full exercise of the Greenshoe Option, we
estimate that, at the low end of the price range, net proceeds to the Company would amount to
approximately e126.03 million, that at the mid-point of the price range, net proceeds to the Company
would amount to approximately e144.44 million and that at the high end of the price range, net proceeds
to the Company would amount to approximately e162.85 million, respectively.
The Company intends to use the main part of its portion of the net proceeds of the Offering to
finance the acquisition of further renewable energy facilities out of its current pipeline of investment
opportunities and, to a lesser degree, also for the expansion of its business line ‘‘asset management’’
(e.g., through moderate hiring of additional personnel or building up of sales activities in new markets).
The Selling Shareholders intend to realize parts of their investment in the CHORUS Group
(through the Fund KGs) and will receive the net proceeds from the sale of the Offered Existing Shares.
Assuming full placement of the Offer Shares, we estimate that at the low end, mid-point and high end of
the price range, net proceeds to the Selling Shareholders would amount to a total of approximately
e6.68 million, e7.66 million and e8.63 million, respectively.
94
E. DIVIDENDS, DIVIDEND POLICY AND EARNINGS PER SHARE
I.
DIVIDENDS
Shareholders have a share in the Company’s distributable profits determined in proportion to
their interest in the Company’s share capital. The participation of new shares in the profits may be
determined in a different manner.
Distributions of dividends on shares for a given financial year are generally determined by a
process in which the management board (Vorstand) of the Issuer (the ‘‘Management Board’’) and the
supervisory board (Aufsichtsrat) of the Issuer (the ‘‘Supervisory Board’’) submit a proposal for the
distribution of dividends to the annual general shareholders’ meeting held within the first eight months of
the subsequent financial year. The general shareholders’ meeting then adopts a resolution on such
distribution with simple majority of the votes cast without being bound by the proposal of the Management
Board and the Supervisory Board. Under German law, dividends can only be resolved upon and paid if
the unconsolidated financial statements of the Company show distributable profits (Bilanzgewinn). In
contrast to the Company’s consolidated financial statements, which are prepared in accordance with
IFRS, the unconsolidated financial statements are prepared in accordance with the accounting principles
of the HGB and other applicable German law. These accounting regulations differ from IFRS in material
respects. The unconsolidated financial statements of the Company are approved by the Management
Board and the Supervisory Board unless the Management Board and the Supervisory Board refer the
approval to the general shareholders’ meeting. In determining the distributable profits, the profit or loss for
the financial year is adjusted for profits or losses carried forward from previous financial years as well as
for withdrawals from and transfers to reserves. Certain reserves must be formed by law and must be
deducted when calculating the distributable profits. Subject to certain statutory restrictions, the general
shareholders’ meeting is entitled to transfer additional amounts to the reserves or carry them forward.
Pursuant to the Company’s Articles of Association and subject to applicable statutory law, the general
shareholders’ meeting may resolve to pay dividends in kind (Sachdividende) in accordance with
Section 58(5) German Stock Corporation Act (Aktiengesetz) in addition to or in lieu of a cash distribution.
If the Management Board and the Supervisory Board approve the unconsolidated financial statements,
they may, pursuant to Section 58(2) German Stock Corporation Act (Aktiengesetz), transfer up to 50% of
the profit for the financial year remaining after deducting any transfers to statutory reserves and any
losses carried forward to non-statutory reserves.
Dividends resolved by the general shareholders’ meeting are due and payable immediately after
the relevant general shareholders’ meeting, unless otherwise provided in the dividend resolution, in
compliance with the rules of the respective clearing system. Under German law, the right to dividend
payments is generally time-barred after three years for the benefit of the Company.
The Offer Shares carry full dividend rights for the financial year commencing on January 1, 2015
and for all subsequent financial years. The dividends will be paid out in accordance with the rules of the
clearing system of Clearstream Banking Aktiengesellschaft, Mergenthalerallee 61, 65760 Eschborn,
Germany. Details on dividend payments and the respective payment agent will be published in the
German Federal Gazette (Bundesanzeiger) after the general shareholders’ meeting. Neither German law
nor the Company’s Articles of Association provide for a special procedure for the exercise of dividend
rights by shareholders not resident in Germany.
Generally, withholding tax (Kapitalertragsteuer) is withheld from dividends paid. For more
information on the taxation of dividends, see T.I.3.b. ‘‘Taxation—Taxation in Germany—Taxation of
Shareholders—Taxation of Dividends’’.
II.
DIVIDEND POLICY
Holders of our shares will be eligible for dividends declared in respect of our financial year
beginning January 1, 2015 and subsequent financial years. Our ability and intention to pay dividends in
the future will depend on our financial position, results of operations, capital requirements, investment
alternatives, the existence of distributable reserves, available liquidity and other factors that the
Management Board and Supervisory Board may deem relevant. Any proposals by the Management
Board and Supervisory Board regarding dividend payments will be subject to the approval of the general
shareholders’ meeting which may revise the Company’s dividend policy from time to time. The Company
95
depends to a significant extent on the transfer of distributable profits from its operating subsidiaries. The
determination of each subsidiary’s ability to pay dividends is made in accordance with applicable law.
For the fiscal years from 2015 onwards, the Company aims to distribute a stable annual dividend
at least comparable to its industry peers and representing a significant portion of its annual distributable
profits. Since the Issuer conducts a substantial part of its operations through its direct and indirect
subsidiaries, its ability to pay dividends depends significantly on its operating subsidiaries generating
profits and distributing them to the Issuer.
III.
EARNINGS
PER
SHARE
Earnings per share are calculated by dividing earnings for the year by the number of outstanding
shares. The following table shows our earnings for the year on the basis of our Combined Financial
Statements and the earnings per share (rounded to two decimal points). For the periods indicated no
dividends were distributed.
For the short
For the
For the
financial year
financial year
financial year
ended
ended
ended
December 17,
December 31,
December 31,
2014
2013
2012
(in g thousands, except as noted)
Earnings for the year(1) .............................................
Assumed number of shares on reporting date(2) .............
Earnings per share ....................................................
Dividends distributed(3) ...............................................
Dividends per share(3) (in e, unaudited).........................
3,722
17,448,539
0.21
-
907
-
664
-
(1)
Prepared in accordance with IFRS. Corresponds to profit attributable to the owners of the combined CHORUS Group in the
Combined Financial Statements.
(2)
For better comparability with future financial information, the current number of shares of the Company as of the date of this
Prospectus of 17,448,539 has been used for the short financial year ended December 17, 2014 (if the number of shares
outstanding at December 17, 2014 of 50,000 were used, the earnings per share would have been e74.44). Since the
Company did not yet exist in the financial years 2013 and 2012 and accordingly no shares of the Company had been issued in
either of these financial years, no number of issued shares has been used for 2013 and 2012.
(3)
Since no dividends were distributed for 2014, information on dividends per share cannot be provided. Since the Company did
not yet exist in the financial years 2013 and 2012, no dividends were distributed in these years, either, and no information on
dividends per share can be provided.
96
F. CAPITALIZATION AND INDEBTEDNESS
The tables below set forth the Company’s consolidated capitalization and net financial
indebtedness as of March 31, 2015 derived from our Unaudited Interim Condensed Consolidated
Financial Statements as well as adjusted for the capital increase in connection with the Offering (see
R.II. ‘‘Description of Share Capital and Related Information—Development of Share Capital’’). The as
adjusted column assumes the placement of all of the New Shares (assuming net issue proceeds
attributable to the Company of e124.03 million).
I.
CAPITALIZATION
Actual as of
March 31, 2015
As adjusted to reflect
effects of the Offering(8)
(excluding
(including
exercise of
exercise of
Greenshoe
Greenshoe
Option)
Option)
(in g thousands)
(unaudited)
Current debt(1) ...........................................................
of which guaranteed.................................................
of which secured(2) ...................................................
of which unguaranteed/unsecured ..............................
36,737
22,036
14,701
36,737
22,036
14,701
36,737
22,036
14,701
Non-current debt(3) ....................................................
of which guaranteed.................................................
of which secured(4) ...................................................
of which unguaranteed/unsecured ..............................
343,002
323,954
19,048
343,002
323,954
19,048
343,002
323,954
19,048
Shareholders’ equity(5) ...............................................
of which is share capital ...........................................
of which is capital reserve .........................................
of which is other reserves(6) .......................................
123,121
17,449
103,663
1,984
247,149
29,449
215,691
1,984
267,564
31,358
234,197
1,984
Total capitalization(7)..................................................
502,860
626,888
647,303
(1)
Current debt is shown as current liabilities in the consolidated interim statement of financial position of the Unaudited Interim
Condensed Consolidated Financial Statements and includes both current financial liabilities as well as other current
liabilities. For a separate presentation of current financial debt, see F.II. ‘‘—Net Financial Indebtedness’’.
(2)
Secured mainly comprises pledges to a banking syndicates as collateral for bank loans.
(3)
Non-current debt is shown as non-current liabilities in the consolidated interim statement of financial position of the Unaudited
Interim Condensed Consolidated Financial Statements and includes both non-current financial liabilities as well as other
non-current liabilities. For a separate presentation of non-current financial indebtedness, see F.II. ‘‘—Net Financial
Indebtedness’’.
(4)
The assets securing the non-current debt consist of guarantees and other securities typical for non-recourse project
financings, such as pledges of the shares in the SPVs holding and operating CHORUS’ renewable energy parks and security
transfers of claims for payment for the electricity fed into the grid by such SPVs to banking syndicates.
(5)
Shareholders’ equity is referred to as total equity in the consolidated interim statement of financial position of the Unaudited
Interim Condensed Consolidated Financial Statements.
(6)
Other reserves comprise retained earnings and fair value reserve as disclosed in the Unaudited Interim Condensed
Consolidated Financial Statements.
(7)
Total capitalization represents the aggregate of current debt, non-current debt and total equity.
(8)
The ‘‘as adjusted’’ figures have been calculated using a price per Offer Share at the mid-point of the price range of e9.75 to
e12.50, equal to e11.13.
97
II.
NET FINANCIAL INDEBTEDNESS
As of
March 31, 2015
As adjusted to reflect
effects of the Offering(7)
(excluding
(including
exercise of
exercise of
Greenshoe
Greenshoe
Option)
Option)
(in g thousands)
(unaudited)
Liquidity
Cash and cash equivalents(1) ....................................
Trading securities....................................................
Total liquidity ...........................................................
13,935
13,935
137,963
137,963
158,378
158,378
Current financial receivables .....................................
-
-
-
Current financial debt
Current bank debt ...................................................
Current portion of non-current debt(2) ..........................
Other current financial debt.......................................
Total current financial debt .......................................
451
21,585
22,036
451
21,585
22,036
451
21,585
22,036
Net current financial indebtedness(3) ..........................
8,101
(115,927)
(136,342)
Non-current financial indebtedness
Non-current bank debt(4) ...........................................
Bonds issued .........................................................
Other non-current financial debt(5) ..............................
Total non-current financial indebtedness ...................
293,727
40,027
333,754
293,727
40,027
333,754
293,727
40,027
333,754
Total net financial indebtedness(6) ..............................
341,855
217,827
197,412
(1)
Consists only of cash and cash equivalents as stated in the consolidated interim statement of financial position of the
Unaudited Interim Condensed Consolidated Financial Statements and does not include e14,570 thousand of restricted cash
and cash equivalents (as stated in the consolidated interim statement of financial position of the Unaudited Interim
Condensed Consolidated Financial Statements), which serves as collateral for the lending banks’ financing of certain of
CHORUS’ solar and wind parks.
(2)
Consists of current portion of non-current bank debt and current portion of non-current leasing liabilities.
(3)
Consists of total current financial debt less current financial receivables less total liquidity.
(4)
Non-current bank debt consist of non-recourse project finance bank loans taken out at the level of the SPVs owning and
operating CHORUS’ renewable energy parks in connection with the development and construction of the respective solar or
wind park. As part of its acquisition of the shares in the SPV holding and operating such solar or wind park, CHORUS
assumed such debt. See M.V.4. ‘‘Business—Energy Generation—Financing of the Development and Construction of Solar
and Wind Parks’’.
(5)
Consists of non-current lease liabilities and interest rate swaps.
(6)
Total net financial indebtedness represents net current financial indebtedness plus total non-current financial indebtedness.
(7)
The ‘‘as adjusted’’ figures have been calculated using a price per Offer Share at the mid-point of the price range of e9.75 to
e12.50, equal to e11.13.
III.
CONTINGENT LIABILITIES
AND
OTHER FINANCIAL LIABILITIES
As of March 31, 2015, we had no contingent liabilities.
As of March 31, 2015, the carrying amount of our future financial obligations resulting from
leasing arrangements amounted to e31,477 thousand.
IV.
WORKING CAPITAL STATEMENT
We believe that we currently have sufficient working capital to meet our payment requirements
over the next twelve months following the date of this Prospectus.
V.
NO SIGNIFICANT CHANGE
IN
FINANCIAL
AND
TRADING POSITION
Between March 31, 2015 and the date of this Prospectus, there have been no significant changes
in our financial or trading position. For information on current trading and management’s view on full year
trends, see V. ‘‘Recent Developments and Outlook’’.
98
G.
DILUTION
The carrying amount of the shareholders’ equity of the Company including non-controlling
interests (equity attributable to shareholders of the Company, or Net Asset Value, i.e., the total assets
less non-current and current liabilities) amounted to e123,121 thousand at March 31, 2015 based on the
Unaudited Interim Condensed Consolidated Financial Statements, corresponding to e7.06 per share
based on 17,448,539 outstanding ordinary bearer shares of the Company prior to the Offering.
Assuming aggregate net proceeds to the Company of approximately e124.03 million (from the
sale of the New Shares and excluding any proceeds from the exercise of the Greenshoe Option) (see
D. ‘‘Reasons for the Offering and Use of Proceeds’’), the carrying amount–had the Company already
received the aggregate net proceeds by March 31, 2015–of the Net Asset Value so adjusted on the
Company’s consolidated interim statement of financial position as of March 31, 2015 would have been
e247.15 million (based on the mid-point of the price range), or e8.39 per share (calculated on the basis of
29,448,539 shares outstanding after full implementation of the capital increase regarding the New
Shares). That would correspond to a direct dilution of e2.73 (24.56%) per share for the parties acquiring
the Offer Shares at the mid-point of the price range. At the low end and high end of the price range, net
proceeds to the Company resulting from the sale of the New Shares and excluding any proceeds from the
exercise of the Greenshoe Option would be e108.15 million and e139.91 million, respectively, and the
corresponding figures would be e1.90 (19.45%) and e3.57 (28.55%), respectively.
Under the assumption that the capital increase regarding the New Shares is fully implemented,
the accretion to the Net Asset Value per share (comparing the Net Asset Values prior to and after the
Offering) will be e1.34, or 18.94% per share, for existing shareholders of the Company (based on an offer
price at the mid-point of the price range and excluding any proceeds resulting from the exercise of the
Greenshoe Option).
The table below illustrates the amount by which the offer price per share exceeds the total share
capital per share after completion of the Offering at the low end, mid-point and high end of the price range,
respectively, assuming execution of the capital increase in the maximum number of offered New Shares
but excluding any proceeds from the exercise of the Greenshoe Option:
Low End
Price per share, in e ...........................................................
Equity attributable to shareholders of the Company per share
as of March 31, 2015 (based on 17,448,539 outstanding shares
of the Company before the Offering), in e ..............................
Equity attributable to shareholders of the Company per share
following the Offering (based on 29,448,539 outstanding shares
of the Company after completion of the Offering, assuming
execution of the capital increase in the maximum number of
offered New Shares but excluding proceeds from the exercise
of the Greenshoe Option), in e .............................................
Amount by which the price per share exceeds the total share
capital per share (immediate dilution per share), in e ...............
Immediate accretion to the existing shareholders of the
Company, in % ..................................................................
Immediate dilution to the new shareholders, in % ....................
Mid Point
High End
9.75
11.13
12.50
7.06
7.06
7.06
7.85
8.39
8.93
1.90
2.73
3.57
11.30
19.45
18.94
24.56
26.58
28.55
Assuming full exercise of the Greenshoe Option, the carrying amount of the thus adjusted total
Net Asset Value on the Company’s consolidated interim statement of financial position as of March 31,
2015, would have been e267.56 million (based on the mid-point of the price range); this corresponds to
approximately e8.53 per share (calculated on the basis of 31,358,467 shares outstanding after full
implementation of the capital increase regarding the New Shares and full exercise of the Greenshoe
Option). That would correspond to a direct dilution of e2.59 (23.30%) per share for the parties acquiring
the Offer Shares at the mid-point of the price range. Under the assumption that the capital increase
regarding the New Shares is fully implemented and the Greenshoe Option is fully exercised, the accretion
to the Net Asset Value per share (comparing the Net Asset Values prior to and after the Offering) will be
e1.48, or 20.92%, per share, for existing shareholders of the Company (based on an offer price at the
mid-point of the price range).
99
H. SELECTED FINANCIAL INFORMATION
The financial information contained in the following tables is taken from the Combined Financial
Statements, the Consolidated Financial Statements 2014 and the Unaudited Interim Condensed
Consolidated Financial Statements. The Combined Financial Statements and the Consolidated Financial
Statements 2014 have been prepared in accordance with IFRS and are reproduced in this Prospectus
beginning on page F-2. The Combined Financial Statements and the Consolidated Financial Statements
2014 have been audited in accordance with Section 317 of the German Commercial Code
(Handelsgesetzbuch) and German generally accepted standards for the audit of financial statements,
which are promulgated by the Institute of Public Auditors in Germany, by KPMG, who issued on each an
unqualified audit opinion. The Unaudited Interim Condensed Consolidated Financial Statements have
been prepared in accordance with IFRS as adopted by the European Union for interim financial reporting
(IAS 34). Each of the Combined Financial Statements, the Consolidated Financial Statements 2014 and
the Unaudited Interim Condensed Consolidated Financial Statements (together, the ‘‘Financial
Statements’’) was prepared on the basis of the nature of expense method.
The Combined Financial Statements were prepared on the basis of the ‘‘common management’’
approach in accordance with the working paper of the Fédération des Experts Comptables Européens
(FEE) dated February 2013. Common management ceased to exist upon the first contribution of the
holding and operating entities to the Company becoming effective on December 17, 2014. Therefore, the
financial information in the Combined Financial Statements for the financial year 2014 is formally
specified as of and for the short financial year ended December 17, 2014 and does not reflect the effects
of the contribution of the holding and operating entities to the Company. In addition, the Consolidated
Financial Statements 2014 included in this Prospectus only present financial information on the Issuer,
CHORUS GmbH and CHORUS GmbH’s subsidiaries but do not include the net assets, results of
operations and cash flows of the 74 contributed holding and operating entities holding the solar and wind
parks until the contribution occurred in December 2014. As the consolidated financial position of the
Company is based on the book value of the assets in the Combined Financial Statements, a comparison
with the consolidated financial position as set forth in the Consolidated Financial Statements 2014 may be
of limited value. For further information on the preparation, as well as the factors affecting comparability of
the various sets of Financial Statements included in this Prospectus see J.III. ‘‘Management’s Discussion
and Analysis of Financial Conditions and Results of Operations—Comparability of Financial Information’’.
The following selected financial information should be read in conjunction with J. ‘‘Management’s
Discussion and Analysis of Financial Condition and Results of Operations’’ and the Financial Statements
including the related notes in the X. ‘‘Financial Information’’ section of this Prospectus.
100
I.
COMBINED INCOME STATEMENT
For the
short
financial
year ended
December 17,
2014
Revenues ..........................................................
Other income .....................................................
Personnel expenses ............................................
Other expenses ..................................................
Earnings before interest, tax, depreciation and
amortization (EBITDA) .......................................
Depreciation and amortization ...............................
Profit before interest and tax (EBIT) ...................
Results of financial investments accounted for at
equity................................................................
Finance income ..................................................
Finance expenses ...............................................
Valuation of interest rate swaps ............................
Net financial result ............................................
Profit before tax ................................................
Income tax expense ............................................
Profit for the year / Total comprehensive income
101
For the
financial
year ended
December 31,
2013
(in g thousands)
(audited)
For the
financial
year ended
December 31,
2012
54,983
1,932
(2,149)
(12,036)
49,657
3,417
(2,117)
(12,828)
43,748
5,206
(2,382)
(12,915)
42,730
(17,752)
24,978
38,129
(21,110)
17,019
33,657
(13,673)
19,984
570
(15,546)
(5,660)
(20,636)
4,342
(612)
3,730
(30)
202
(17,292)
2,443
(14,677)
2,342
(1,435)
907
(30)
318
(16,035)
(3,452)
(19,199)
785
(121)
664
II.
COMBINED STATEMENT
OF
FINANCIAL POSITION
As of
December 17,
2014
ASSETS
Non-current Assets ................................................
Intangible assets .....................................................
Property, plant and equipment ...................................
Financial investments at equity ..................................
Non-current financial assets ......................................
Non-current non-financial assets ................................
Deferred tax assets..................................................
Current Assets ......................................................
Trade and other receivables ......................................
Receivables against shareholders ..............................
Income taxes receivable ...........................................
Current financial assets ............................................
Current non-financial assets ......................................
Liquid Funds .........................................................
Cash and cash equivalents .......................................
Restricted cash and cash equivalents .........................
Total Assets ..........................................................
NET ASSETS AND LIABILITIES
Total net assets .....................................................
Net assets attributable to shareholders of the combined
group.....................................................................
Non-controlling interests ...........................................
Non-Current Liabilities ...........................................
Liabilities to limited partners ......................................
Non-current provisions..............................................
Non-current financial liabilities ...................................
Deferred tax liabilities ...............................................
Current Liabilities ..................................................
Current provisions ...................................................
Trade payables .......................................................
Income taxes payable ..............................................
Current financial liabilities .........................................
Other current liabilities..............................................
Liabilities to shareholders..........................................
Deferred income......................................................
Total Net Assets and Liabilities ..............................
102
As of
December 31,
2013
(in g thousands)
(audited)
As of
December 31,
2012
401,471
230
387,144
480
4,374
6,614
2,629
47,722
6,420
827
1,327
7,592
31,556
15,465
16,091
449,193
409,034
173
395,877
200
3,583
7,002
2,199
54,609
6,626
1,518
831
7,472
5,276
32,886
19,455
13,431
463,643
367,071
15
353,432
229
3,839
6,937
2,619
54,646
7,152
319
424
1,726
5,796
39,229
30,204
9,025
421,717
61,803
61,600
61,046
61,778
25
316,548
4,034
3,311
307,883
1,320
70,842
1,328
4,771
374
21,567
3,363
38,659
780
449,193
61,589
11
323,585
3,724
2,222
316,936
703
78,458
374
6,720
168
21,491
1,642
47,272
791
463,643
61,046
295,919
3,552
2,255
289,609
503
64,752
316
7,198
86
23,700
3,133
29,698
621
421,717
III.
COMBINED STATEMENT
OF
CASH FLOWS
For the
short
financial
year ended
December 17,
2014
Results for the Year.......................................
Adjustments for Result
Net finance result ............................................
Net income tax result .......................................
Earnings before Interest and Tax (EBIT) ..........
Tax paid ........................................................
Depreciation and amortization ...........................
Losses/gains on disposal of assets ....................
Other non-cash income/expenses ......................
Increase / decrease in other assets not
attributable to investment and financing activities .
Increase / decrease in other liabilities not
attributable to investment and financing activities .
Cash Flow from Operating Activities ...............
Proceeds on disposals of property, plant and
equipment and intangible assets ........................
Proceeds on disposals of financial assets ...........
Payments on investments of financial assets .......
Payments on investments in property, plant and
equipment and intangible assets ........................
Payments on investments in companies, net of
cash and cash equivalents acquired ...................
Interest received .............................................
Cash Flow from Investing Activities ................
Proceeds from borrowing / debt .........................
Repayment of borrowing/debt ............................
Proceeds from shareholders .............................
Payments to shareholders ................................
Proceeds from shareholder loans.......................
Repayments of shareholder loans ......................
Proceeds from loans granted ............................
Payments from loans granted............................
Change in restricted cash .................................
Repayments of lease commitments ....................
Interest paid ...................................................
Cash Flow from Financing Activities ...............
Net increase /decrease in cash and cash
equivalents .....................................................
Cash and cash equivalents at beginning of period
Cash and cash equivalents at end of period ........
103
3,730
For the
financial
year ended
December 31,
2013
(in g thousands)
(audited)
907
For the
financial
year ended
December 31,
2012
664
20,636
612
24,977
(512)
17,752
(1,588)
14,677
1,435
17,018
(1,349)
21,110
(655)
19,199
121
19,984
(766)
13,673
207
(1,083)
(1,275)
6,245
8,949
170
39,525
(5,341)
37,028
(8,692)
32,271
50
(915)
64
112
(851)
58
225
(1,513)
(3,155)
(375)
(7,961)
436
570
(3,014)
2,997
(19,870)
2,592
(7,847)
1,518
(7,710)
5,700
(2,660)
(1,171)
(14,051)
(40,501)
(855)
536
(1,370)
1,997
(21,664)
1,703
(3,982)
4,546
(3,287)
(5,700)
(4,406)
(1,098)
(14,518)
(46,409)
4,500
308
(4,382)
16,474
(17,847)
12,770
(5,980)
(4,710)
3,273
(3,555)
(3,507)
(12,610)
(15,694)
(3,990)
19,455
15,465
(10,750)
30,204
19,455
12,195
18,010
30,204
IV.
CONSOLIDATED INCOME STATEMENT
For the
financial
year ended
December 31,
2014
For the
For the
For the
financial
three months
three months
year ended
ended
ended
December 31,
March 31,
March 31,
2013
2015
2014
(in g thousands)
(audited)
(unaudited)
Revenues ...................................
Other income...............................
Personnel expenses......................
Other expenses............................
Profit (Loss) before interest, tax,
depreciation and amortization
(EBITDA) ....................................
Depreciation and amortization.........
Profit (Loss) before interest and
tax (EBIT)...................................
Results of financial investments
accounted for at equity ..................
Finance income............................
Finance expenses ........................
Valuation of interest-rate swaps ......
Net financial result......................
Profit (Loss) before tax ...............
Income tax ..................................
Profit (Loss) for the period / Total
comprehensive income (loss) ......
Profit (Loss) attributable to the
owners of CHORUS Clean Energy
AG ............................................
Profit attributable to
non-controlling interests .............
3,349
930
(2,149)
(3,419)
3,574
294
(2,117)
(951)
12,365
505
(559)
(4,467)
267
83
(504)
(178)
(1,289)
(74)
800
(47)
7,844
(5,479)
(332)
(15)
(1,363)
753
2,365
(347)
4
269
(141)
132
(1,231)
(359)
0
110
(80)
30
783
(188)
152
(2,255)
(192)
(2,295)
70
(498)
0
(65)
(65)
(412)
106
(1,590)
595
(428)
(306)
(1,598)
595
(428)
(306)
8
104
0
-
-
V.
CONSOLIDATED STATEMENT
OF
FINANCIAL POSITION
As of
December 31,
2014
(audited)
As of
December 31,
2013
(in g thousands)
(audited)
As of
March 31,
2015
(unaudited)
ASSETS
Non-current Assets...........................................
Intangible assets and goodwill ..............................
Property, plant and equipment..............................
Financial investments at equity .............................
Non-current financial assets .................................
Deferred tax assets ............................................
Current Assets .................................................
Trade and other receivables.................................
Income taxes receivable ......................................
Current financial assets .......................................
Current non-financial assets .................................
Liquid Funds......................................................
Cash and cash equivalents ...............................
Restricted cash and cash equivalents .................
457,343
181,149
252,521
480
4,374
18,819
51,961
6,420
826
1,327
6,098
37,290
21,199
16,091
260
173
23
58
6
9,390
1,974
654
5,896
866
866
-
452,450
178,483
250,204
541
4,712
18,510
50,410
9,014
402
4,792
7,697
28,505
13,935
14,570
Total Assets .....................................................
509,304
9,650
502,860
50
2,269
5,855
115,645
250
25
3,873
-
17,449
103,663
144
1,840
-
123,819
25
4,148
11
123,096
25
Non-current liabilities........................................
Liabilities to limited partners .................................
Non-current provisions ........................................
Non-current financial liabilities ..............................
Deferred tax liabilities..........................................
Current liabilities ..............................................
Current provisions ..............................................
Trade payables ..................................................
Income taxes payable .........................................
Current financial liabilities ....................................
Other current liabilities ........................................
Deferred income ................................................
350,108
4,034
3,358
341,057
1,659
35,352
1,382
4,716
3,537
21,446
3,431
840
4
4
5,487
86
5,205
196
-
343,002
3,959
3,861
333,754
1,428
36,737
1,748
4,043
3,878
22,036
4,733
299
Total Equity and Liabilities ................................
509,304
9,650
502,860
EQUITY AND LIABILITIES
Equity
Share capital .....................................................
Capital reserve...................................................
Fair value reserve ..............................................
Retained earnings ..............................................
Contributions in-cash not yet registered .................
Contributions in-kind not yet registered ..................
Equity attributable to the owners of CHORUS
Clean Energy AG ..............................................
Non-controlling interests ......................................
105
VI.
CONSOLIDATED STATEMENT
OF
CASH FLOWS
For the
financial
year ended
December 31,
2014
Profit (Loss) for the Year ..........................
Net finance result ......................................
Net income tax result .................................
Profit (Loss) before interest and tax (EBIT) .
Tax paid ..................................................
Depreciation and amortization ......................
Other non-cash income ..............................
Increase / decrease in other assets not
attributable to investment and financing
activities ..................................................
Increase / decrease in other liabilities not
attributable to investment and financing
activities ..................................................
Cash Flow from Operating Activities ..........
Proceeds on disposals of financial assets.......
Cash acquired in business combination .........
Payments on investments of financial assets ..
Payments on investments in equity and debt
instruments ..............................................
Payments on investments in property, plant
and intangible assets .................................
Payments on investments in companies, net
of cash and cash equivalents acquired ..........
Interest received .......................................
Cash Flow from Investing Activities ...........
Proceeds from borrowing / debt ...................
Proceeds from shareholders ........................
Proceeds from shareholder loans .................
Repayments of shareholder loans .................
Repayment of borrowing / debt ....................
Repayments of lease commitments ...............
Payments in connection with raising equity .....
Change in restricted cash ...........................
Distributions .............................................
Interest paid .............................................
Cash Flow from Financing Activities ..........
Net increase/decrease in cash and cash
equivalents ..............................................
Cash and cash equivalents at beginning of
period .....................................................
Cash and cash equivalents at end of period ...
For the
For the
For the
financial
three months
three months
year ended
ended
ended
December 31,
March 31,
March 31,
2013
2015
2014
(in g thousands)
(audited)
(unaudited)
(1,590)
595
(428)
(306)
(132)
(30)
2,295
65
359
188
498
(106)
(1,363)
753
2,365
(346)
(422)
(188)
343
11
74
47
5,479
15
0
(16)
(1,027)
0
4,111
(5,817)
(4,449)
2,128
4,528
2
14,778
(280)
(1,387)
(6,608)
0
68
0
1,643
4,354
-
-
-
(3,843)
(796)
1,336
219
0
(131)
(196)
(5)
(1)
0
269
14,638
5,855
0
(4,500)
(38)
26
(140)
0
4,500
0
0
(187)
1,168
(11)
(67)
4,422
(3,847)
0
(5,257)
(306)
(359)
1,521
(3,369)
(7,770)
(1)
228
0
0
0
0
0
228
20,333
(2,325)
(7,263)
447
866
21,199
3,191
866
21,199
13,935
106
866
1,312
I.
SELECTED PRO FORMA CONSOLIDATED FINANCIAL INFORMATION
The following selected key pro forma consolidated financial information was taken from the pro
forma consolidated financial information prepared by the Company for the purpose of this Prospectus,
comprising a pro forma consolidated income statement for the year ended December 31, 2014, and pro
forma notes (together, the ‘‘Pro Forma Consolidated Financial Information’’).
The purpose of the Pro Forma Consolidated Financial Information is to show the material effects
that the contribution of the 74 holding and operating entities into the CHORUS Group would have had on
the results of operations of the CHORUS Group if the CHORUS Group had already existed in the
structure created by such acquisitions as of January 1, 2014.
The presentation of the Pro Forma Consolidated Financial Information is based on certain pro
forma assumptions and is intended for illustrative purposes only. The Pro Forma Consolidated Financial
Information assumes, in particular, that the contributions had taken place on January 1, 2014 for
purposes of the pro forma consolidated income statement of the Company for the period from January 1,
2014 to December 31, 2014.
Therefore, the Pro Forma Consolidated Financial Information describes only a hypothetical
situation and thus, due to its nature, the presentation does not reflect the results of operations of the
CHORUS Group after closing of the various acquisitions. In addition, the Pro Forma Consolidated
Financial Information does not represent a forecast of the results of operations of the CHORUS Group at
a future time.
Pro Forma Consolidated Income Statement for the Period From January 1, 2014 to December 31,
2014:
The following tables summarize the adjustments to the historical financial information of the
original CHORUS GmbH group for the period from January 1, 2014 to December 31, 2014 as described in
the Pro Forma Consolidated Financial Information, which are included in the X. ‘‘Financial Information’’
section of this Prospectus.
January 1 to December 31, 2014
(in g thousands)
Revenues...........................
Other income ......................
Personnel expenses.............
Original
CHORUS GmbH
Group and
CHORUS AG
3,349
930
(2,149)
Operating
and Holding
SPVs
54,075
1,490
0
Sum
57,424
2,420
(2,149)
Note
(1)
(1)
(1)
(2)
Other expenses...................
Depreciation and
amortization ........................
Operating income ..............
Finance income...................
Finance costs .....................
Net financial income/
(expense) ..........................
Profit/(loss) before tax........
Income tax .........................
Profit/(loss) after taxes for
the year.............................
(3,419)
(11,467) (14,886)
(74)
(1,363)
273
(17,678) (17,752)
26,420 25,057
2,082
2,355
(1)
(141)
(21,257) (21,398)
132
(1,231)
(359)
(19,175) (19,043)
7,245
6,014
(732) (1,091)
(1,590)
6,513
107
4,923
(3)
Pro forma New CHORUS
adjustments
Group
(2,441)
(489)
0
2,850
715
3,565
54,983
1,931
(2,149)
(11,321)
(20,359)
23,085
570
(1)
(4)
(2,607)
(1,972)
(1,785)
193
5,419
5,612
(5)
3,827
1,855
(1,840)
(15,216)
7,869
(2,931)
15
(15,786)
4,938
J.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
Investors should read the following discussion and analysis of our financial condition and results
of operations in conjunction with our audited combined financial statements and the notes to those
combined financial statements. Some of the statements contained below include forward-looking
statements. Because such statements involve inherent uncertainties, actual results may differ materially
from the results expressed in or implied by such forward-looking statements. Investors can find a
discussion of such uncertainties under B. III. ‘‘General Information—Forward-Looking Statements’’. In
addition, investing in our shares involves risks. Investors can find a discussion of such risks under
A. ‘‘Risk Factors’’.
The financial information contained in the following discussion is taken from the audited
combined financial statements of the Company as of and for the short financial year ended December 17,
2014 and the financial years ended December 31, 2013 and 2012 (together, the ‘‘Combined Financial
Statements’’) and the audited consolidated financial statements of the Company for the financial year
ended December 31, 2014 (the ‘‘Consolidated Financial Statements 2014’’). The Combined Financial
Statements and the Consolidated Financial Statements 2014 have been prepared in accordance with
IFRS, taking into account the basis of preparation as set out in Note 1 to the Combined Financial
Statements, and are reproduced in this Prospectus beginning on page F-2. They have been audited in
accordance with Section 317 of the German Commercial Code (Handelsgesetzbuch – ‘‘HGB’’) and
German generally accepted standards for the audit of financial statements, which are promulgated by the
Institute of Public Auditors in Germany (Institut der Wirtschaftsprüfer), by KPMG, who issued an
unqualified audit opinion thereon. Certain additional financial information contained in the following
discussion is taken from both the unaudited interim condensed consolidated financial statements of the
Company as of and for the three month-period ended March 31, 2015 (the ‘‘Unaudited Interim
Condensed Consolidated Financial Statements’’), prepared in accordance with IFRS for interim
financial reporting (IAS 34), and the audited unconsolidated financial statements of the Company for the
financial year ended December 31, 2014, which were prepared in accordance with the requirements of
the HGB. IFRS and HGB differ in certain material respects.
The Combined Financial Statements represent the net assets, financial position and results of
operations and cash flows of the operating business of the CHORUS Group (i.e., the net assets, financial
position and results of operations of the Issuer and the operating investments contributed to it as part of
the Reorganization) for the short financial year ended December 17, 2014 and for the financial years
ended December 31, 2013 and 2012. In the preparation of our financial statements, certain assumptions
and estimates were made which affect the recognition and amount of assets and liabilities, income and
expenses and contingent liabilities. Therefore, actual results may differ from our assumptions or
estimates and net assets, financial position and results of operations or cash flows cannot be
extrapolated for future periods or a future reporting date.
Where financial information in the following tables is labeled ‘‘audited’’, this means that it was
taken from the audited combined financial statements mentioned above. The label ‘‘unaudited’’ is used in
tables to indicate financial information that was taken from a source other than the audited combined
financial statements. Unless otherwise indicated, all of the financial figures presented in the text in this
section of the Prospectus are shown in thousands of euro (f thousand), commercially rounded to one
decimal point. Unless expressly otherwise noted, the percentage amounts included in the text have been
commercially rounded to one decimal point. Because of this rounding, the figures shown in the tables may
not, in all cases, add up exactly to the respective totals given.
I.
OVERVIEW
CHORUS is an independent power producer and a full-service asset manager with a
long-standing focus on investments in renewable energy power facilities. In addition, CHORUS provides
advisory and asset management services to professional investors in the renewable energy sector. Since
its specialization in the renewable energy field in 2006, CHORUS has initiated 21 German limited
partnerships (Kommanditgesellschaften) and three Luxembourg special institutional investment funds
focused on the renewable energy sector, which, advised by CHORUS, executed total investments in
67 solar and wind parks located in Germany and other European countries with a total capacity of
254 MW (solar parks: 151 MW; wind parks: 103 MW), representing a total investment volume of
108
approximately e673 million. Between 2009 and 2014, the total electricity generated per year by the solar
and wind parks managed and operated by CHORUS grew from 1.3 MWh (2009) to 252,843 MWh (2014).
CHORUS owns and operates 62 of these parks (the ‘‘CHORUS Portfolio’’) and manages and operates
five wind parks for the Luxembourg special institutional investment funds initiated by it (the ‘‘Managed
Portfolio’’). Following the acquisition of a solar or wind park for its own portfolio or for professional funds
and investors, CHORUS provides operations and asset management services to the legal entities owning
the solar and wind parks.
As part of a recent Reorganization of the CHORUS Group in preparation of the Offering (see
N. ‘‘Reorganization of the CHORUS Group’’), the existing portfolio of solar and wind parks formerly held
by most of the German limited partnerships together with the asset management and advisory service
companies have been transferred to the Issuer. CHORUS believes to be one of the largest independent
power producers and full-service asset managers in the renewable energy sector in Germany, measured
by the cumulative capacity of the CHORUS Portfolio.
According to the Issuer’s combined income statement for the short financial year ended
December 17, 2014, CHORUS generated total revenues of e54,983 thousand (also on basis of the Pro
Forma Consolidated Financial Information), total EBIT of e24,978 thousand, EBITDA of
e42,730 thousand, profit before tax of e4,342 thousand (or e7,869 thousand on basis of the Pro Forma
Consolidated Financial Information — as to the hypothetical nature of the Pro Forma Consolidated
Financial Information shown, see the introduction to I. ‘‘Selected Pro Forma Consolidated Financial
Information’’) and profit for the year / total comprehensive income of e3,730 thousand (or
e4,938 thousand on basis of the Pro Forma Consolidated Financial Information). For the three month
period ended March 31, 2015, according to the Issuer’s Unaudited Interim Condensed Consolidated
Financial Statements, CHORUS’ total revenues were e12,365 thousand, its total EBIT was
e2,365 thousand, EBITDA was e7,844 thousand, profit before tax was e70 thousand and total
comprehensive loss for the period was e428 thousand (adjusted for extraordinary effects due to
expenses related to the Offering, the total comprehensive profit for the period would be e356 thousand).
The business activities of CHORUS are divided into two business lines: ‘‘energy generation’’ and
‘‘asset management’’.
•
In its business line ‘‘energy generation’’, CHORUS acquires and operates solar and wind
parks in Europe, with a focus on Germany. The CHORUS Portfolio produced a total of
219,249 MWh in the financial year 2014 – which is enough energy to meet the annual energy
needs of approximately 73,000 average German two-person households6. CHORUS’
57 solar parks generated 164,034 MWh and its five wind parks 55,214 MWh in 2014. In its
business line ‘‘energy generation’’, CHORUS will continue to invest in renewable energy
power facilities in European countries which it believes to provide a reliable regulatory
environment with a continued focus on solar and wind energy, but also regularly assesses
investment opportunities in other forms of proven renewable energy technologies, such as
hydro power or energy storage systems.
In the short financial year ended December 17, 2014, on a combined basis, electricity
generation revenues amounted to e53,964 thousand. For the three month period ended
March 31, 2015, electricity generation revenues were e10,210 thousand on a consolidated
basis.
•
In its business line ‘‘asset management’’, CHORUS initiates funds for institutional investors
or (as part of its ‘Tailored Investment Solutions’ services) tailors and structures other
investments for professional investors in the field of renewable energy against a fee and
provides operations services for existing power plants held by professional investors. In April
2014, CHORUS received final regulatory approval for the initiation of its first Luxembourg
regulated institutional fund, CHORUS SICAV-SIF, which aims at acquiring a diversified
portfolio of infrastructure assets, in particular renewable energy parks, in selected European
countries with a current focus on Germany. Two sub-funds of CHORUS SICAV-SIF have
already invested their initially raised capital in 2014 by acquiring wind parks with a total
6
Based on an average consumption of a German two-person household without electronic warm water preparation per year of
3,000 KWh (Source: BDEW – Bundesverband der Energie- und Wasserwirtschaft e.V., Electricity Consumption in Private
Households, October 2013).
109
investment volume of more than e150 million. A third sub-fund has recently been admitted by
the Luxembourg regulator and there are currently preparations to distribute this fund to
investors. In addition, in this business line ‘‘asset management’’, CHORUS provides its
operations services to the legal entities owning the CHORUS Portfolio and, for a recurring
remuneration, the Managed Portfolio.
In the short financial year ended December 17, 2014, on a combined basis, asset
management revenues amounted to e1,019 thousand. For the three month period ended
March 31, 2015, asset management revenues were e2,155 thousand on a consolidated
basis.
II.
KEY FACTORS AFFECTING RESULTS
1.
Increasing Utilization of Renewable Energy Sources
OF
OPERATIONS
Renewable energy has been one of the fastest growing sources of electricity generation in the
EU and globally over the past decade. We expect the renewable energy generation market to continue to
offer growth opportunities, driven by, among other factors:
2.
•
supranational and government policy commitments and plans to encourage development of
renewable power, including pledges to reduce greenhouse-gas emissions and plans to
phase our fossil-energy subsidies, and incentives to motivate utilities to procure electricity
from renewable energy producers;
•
the significant reduction in the cost of renewable energy technologies, which will lead to ‘‘grid
parity’’ (i.e., energy projects which can be operated independently from any governmental
subsidization for energy produced from renewable sources) in an increasing number of
markets;
•
the replacement of aging and conventional power generation facilities in the face of
increasing industry challenges to meet environmental regulatory targets, increasing costs of
and difficulties in obtaining and maintaining applicable permits, and the decommissioning of
certain types of conventional power generation facilities, such as coal and nuclear facilities;
•
the ability to couple renewable power generation with other forms of power generation,
creating a hybrid energy solution capable of providing energy on a 24/7 basis while reducing
the average cost of electricity obtained through the system;
•
the desire of energy consumers to lock in long-term pricing of a reliable energy source;
•
renewable power generation’s ability to utilize freely available sources of fuel, thus avoiding
the risks of price volatility and market disruptions associated with many conventional fuel
sources;
•
a prolonged low interest rate environment which may drive further investments in renewable
energy generation projects; and
•
environmental concerns over conventional power generation.
Regulatory Framework and Development of Government Initiatives
The business operations and results of operation of CHORUS are, to a significant extent,
affected by the regulatory frameworks of, and government initiatives in, the countries in which its solar
and wind parks are located. Although the renewable energy market has strengthened its overall
competitive position vis-à-vis conventional sources of energy in recent years, the renewable energy
industry is still materially dependent on the promotion of wind and solar energy generation through
government initiatives, such as national feed-in tariff regimes, tax incentives, so-called ‘‘green
certificates’’ and other forms of subsidies to support the sale of renewable electricity to customers through
the public grid. Similarly, government programs and legislative measures, and their continued existence
and applicability, have been and continue to be of material significance for CHORUS’ profitability in the
markets in which it operates.
110
Fixed feed-in tariffs have historically been the primary governmental incentives used to support
the promotion of renewable energy generation. Applicable fixed feed-in tariffs generally depend on the
legislation in place at the time of commencement of a facility’s operation and are frequently subject to
flexible degression and, in some cases, progressive reductions in tariffs over time. Therefore, renewable
energy facilities which commence operations at a later point in time only benefit from a decreased or
lower feed-in tariff compared to facilities which started their operations earlier. In various countries,
including Germany and Italy, legislation enacted in 2013 and 2014 introduced new measures, such as
direct marketing and tendering systems, to replace the fixed feed-in tariff system over time.
For example, in Germany, direct marketing of electricity generated from renewable energy
facilities became mandatory for facilities with a capacity above 500 kW and which became operational
after August 2014 (and from 2016 on for all facilities with a capacity above 100 kW), thereby replacing the
fixed feed-in tariff system for new facilities meeting such capacity thresholds. As of the date of this
Prospectus, nearly all of the electricity produced by CHORUS’ renewable energy facilities in Germany is
sold by way of voluntary direct marketing pursuant to energy supply agreements with direct marketing
intermediaries or directly to the electricity power exchange. Under the direct marketing system in
Germany, renewable energy facility operators receive the sales price for their electricity sold and are
further entitled to claim a ‘‘market premium’’, the calculation of which is prescribed in the EEG 2014 and is
aimed at balancing the difference between the feed-in tariff and the average monthly market price for
electricity at the electricity power exchanges. Furthermore, the EEG 2014 established tendering as the
primary tool for determining the prices of renewable energy from non-integrated solar power in the future
and foresees the extension of such tendering processes to all other renewable energy sources by 2017.
Details for the tendering procedure are not set forth in the EEG 2014, and draft regulations have not yet
been enacted by the German Federal Ministry of Economic Affairs and Energy (Bundesministerium für
Wirtschaft und Energie).
In Italy, electricity generated from renewable energy sources has historically also been promoted
through a combination of feed-in tariff systems for solar facilities and tendering systems for other
renewable energy facilities. However, new legislation enacted with retroactive effect in June 2014 also
significantly reduced the feed-in tariff rates for existing solar facilities with an installed capacity in excess
of 200 kW. We do not expect this to have an adverse effect on CHORUS’ Italian solar park operations in
the financial year ended December 31, 2015, as the tariff rate reduction has already been reflected in the
balance sheet as of December 31, 2014 with respect to the valuation of such assets.
To date, CHORUS has focused its own and managed investments primarily in Germany and
other selected EU countries, including Italy, Austria, Finland and France. As of the date of this
Prospectus, Germany and Italy are CHORUS’ most important markets. CHORUS will continue to
consider investments in other EU countries in which it believes attractive and predictable regulatory
environments exist and which need to further bolster their use of renewable energy to meet the targets set
out under current EU directives.
For a more detailed discussion of the regulatory framework applicable to CHORUS’ business,
see L. ‘‘Regulation’’.
3.
Volume of Service Revenues
Fund initiation and structuring of investment opportunities for institutional investors interested in
investments in renewable energy in Europe, together with operations and advisory services for such
funds and investment vehicles, represent a significant growth opportunity for the CHORUS Group. In April
2014, CHORUS established CHORUS SICAV-SIF, an institutional umbrella specialized investment fund
in Luxembourg focused on European renewable energy investments. CHORUS SICAV-SIF is
complemented by sub-funds characterized by different investment strategies, such as renewable energy
turn-key facilities and onshore wind energy facilities in Germany. The full amount of the one-off fees
generated in relation to these sub-funds will only be fully reflected in the result of operations for the
financial year 2015 as, among other things, the establishment of such sub-funds was not complete until
the latter part of the financial year 2014 and were not fully invested prior to the year end. In addition to
structuring fees for tailored investments in the renewable energy sector for individual professional
investors, CHORUS offers advisory services and portfolio management to such sub-funds for minimum
terms of five years. According to CHORUS’ own market observations, the typical fee volumes prevailing
in the asset management markets in which CHORUS operates range from 3.50% to 6.00% of the
111
invested equity for one-off project structuring and fund set-up fees and from 0.75% to 1.50% of the
invested equity for recurring asset management and fund advisory fees (each time depending on the
concrete leverage in the individual case). As of December 31, 2014, CHORUS managed four wind parks
in Germany and one wind park in Finland under its umbrella fund framework (in addition to the five wind
parks in the CHORUS Portfolio). For the short financial year ended December 17, 2014, CHORUS
generated e1,019 thousand in total service revenues, compared to e843 thousand and e1,052 thousand
for the financial years ended December 31, 2013 and 2012, respectively. CHORUS intends to further
expand its fund initiation, advisory and portfolio management services to address the growing demand for
professional investments for exposure to the European renewable energy market through diversified
investment opportunities.
4.
Changing Weather Conditions and Seasonality
Our business comprises the generation of electricity from solar systems and wind turbines. The
profitability of a solar or wind energy project is dependent on solar or wind conditions at the location of the
relevant park, which may vary over time and differ from solar and wind conditions observed during the
project development stage. Based on historical statistical data, CHORUS believes that solar conditions
are considerably more stable than wind conditions over longer periods of time (of 20 years or more).
However, changing weather conditions may still affect our financial performance from one year to the next
and directly affect our revenues and operating results. For example, weather and climate fluctuations
resulted in longer than usual periods of low wind volumes in 2014.
The amount of electricity our solar power energy parks produce is dependent on the amount of
sunlight, or irradiation, at the sites where the solar parks are located. Because shorter daylight hours in
winter months result in less irradiation, the electricity generation of our solar parks will vary considerably
depending on the season. Additionally, as all of our solar parks are located in the northern hemisphere,
power generation of our solar park portfolio is impacted by seasonality. Consequently, total power
generation of our solar park portfolio is at its highest during the second and third quarters of each year,
when it is summer in the northern hemisphere and the days are longer. In contrast, energy generation
from our wind parks is typically higher in the first and fourth quarters of each year.
5.
Changes in Market Prices for Conventional Sources of Energy
Prior to the sudden and significant decline in energy prices beginning in late 2014, prices for
conventional sources of energy – primarily for crude oil and natural gas – have increased considerably
over the last decade, with a marked increase observed in more recent years. This historical trend of rising
prices of conventional sources of energy, combined with increasing public awareness of the need for
climate protection and security and reliability of energy supply, have been beneficial to the overall
economic development of the renewable energy industry as a whole.
Our revenue is primarily a function of the volume of electricity generated and sold by our solar
and wind parks, the price at which we are able to sell such electricity and the governmental subsidization
we receive. Therefore, an increase in market prices for conventional sources of energy could lead to
increased interest in renewable energy and a greater willingness of energy consumers to switch to
renewable energy providers as well as legislative bodies to promote renewable energy generation.
Moreover, rising market prices for conventional sources of energy would be advantageous in countries
such as Germany, where we have voluntarily opted out of the fixed feed-in tariff system to sell electricity in
the open market at market prices, supported by a market premium. Conversely, lower market prices for
energy from conventional sources adversely impacts the market price of electricity we sell under such
direct marketing systems. See A.II.12. ‘‘Risk Factors—Risks Related to the Market and Business of the
CHORUS Group—Lower prices for energy from conventional sources could negatively impact CHORUS’
results from energy sales’’. As a consequence, significant fluctuations in the market prices of
conventional sources of energy affect the prices at which we can sell the electricity produced by our solar
and wind parks and, in turn, our revenues and results of operation.
6.
Availability of Suitable Sites and Competition
Our continued growth depends, in part, on our ability to find and secure suitable investment
opportunities in solar and wind parks in Germany and other European countries. Attractive available sites
for the development of new solar and wind parks are limited, particularly in countries with stable and
favorable regulatory regimes. We generally seek to acquire new, nearly new or ‘‘ready to build’’ solar or
112
wind parks which already have all necessary permits in place, the financing contractually secured and the
future grid connection of the facilities ensured. Therefore, the number of solar and wind park projects
which fulfil these requirements and our profitability expectations is limited, and finding suitable targets for
investment may become more difficult in the future if competition were to increase further.
We are confident that we have identified and will in the future continue to successfully identify
attractive investment opportunities in our targeted geographies. While we expect competition to remain
relatively stable for the foreseeable future, it cannot be excluded that new competitors with greater
financial resources will enter the market or that the current low interest rate environment will result in
increased demand for investments in renewable energy projects, making it harder to secure facilities in
attractive locations at suitable prices. Nevertheless, we believe that our market size and position – as one
of the largest independent power producers and full-service asset managers in the renewable energy
sector in Germany – provide us with an important competitive benefit in relation to securing future solar
and wind parks. In addition, as all of our assets are already in operation, we enjoy the benefit of a secure
and recurring revenue stream while we pursue our growth strategy. See A.II.2. ‘‘Risk Factors—Risks
Related to the Market and Business of the CHORUS Group—CHORUS may be unable to find and secure
suitable investment opportunities in solar and wind parks (or related operating companies)’’.
7.
Interest Rates
CHORUS typically invests in new or as good as new solar or wind parks by acquiring the SPV
which acts as the direct operator of the park. Financing for the development and construction of solar and
wind parks is typically already secured by the selling SPV entity prior to CHORUS’ investment, such that
CHORUS acquires the existing financing as part of its acquisition of the SPV park operator. See
M.V.4. ‘‘Business—Energy Generation—Financing of the Development and Construction of Solar and
Wind Parks’’. As of December 17, 2014, the carrying amount of total interest-bearing non-derivative
financial liabilities totaled e319,842 thousand, e82,282 thousand, or 25.7% of which were variableinterest financial liabilities and which included a shareholder loan recorded as liabilities to shareholders in
our balance sheet in the amount of e38,659 thousand. In order to minimize the interest rate risk in
connection with variable interest rate financing, we typically enter into interest rate swaps in connection
with the applicable financing arrangements if and to the extent these have not already been entered into
by the seller of such park or parks. We believe that the interest rates swaps we hold are adequate to
hedge our variable rate interest exposure. While we may continue to enter into such hedging agreements
in the future, we may also elect not to do so or the terms on which we hedge may not be satisfactory or
may fail to adequately protect us from changes in market interest rates (see A.II.23. ‘‘Risk Factors—Risks
Related to the Market and Business of the CHORUS Group—CHORUS is subject to risks relating to
changes in interest rates with respect to its financing.’’).
III.
COMPARABILITY
1.
Basis of Preparation of the Combined Financial Statements
OF
FINANCIAL INFORMATION
CHORUS Clean Energy AG was formed in July 2014 and was entered into the commercial
register of the local court (Amtsgericht) of Munich, Germany, in August 2014. Furthermore, in December
2014, CHORUS Clean Energy AG acquired all shares in the holding and management company
CHORUS GmbH (then the parent company of the CHORUS Group) as well as all shares in the
74 contributed holding and operating entities owning the solar and wind parks in various jurisdictions. See
N. ‘‘Reorganization of the CHORUS Group’’. Consequently, neither stand-alone nor consolidated
financial statements of the Company exist that cover the last three financial years of the Group’s
business, and the Company has a ‘‘complex financial history’’ as described in Regulation (EC)
No. 809/2004.
Due to its complex financial history, the Company has prepared Combined Financial Statements
in accordance with the International Financial Reporting Standards (IFRS) as adopted by the European
Union (EU) taking into account the provisions of IFRS 1 for the first-time adoption of IFRS. Since the
74 contributed holding and operating entities were neither under the control of the Company (or any other
entity controlled by the Company) or CHORUS GmbH nor under common control with the Company or
CHORUS GmbH until the reorganization measures and contribution of such entities occurred in
December 2014, the Combined Financial Statements were prepared on the basis of the so-called
‘‘common management’’ approach in accordance with the working paper of the Fédération des Experts
113
Comptables Européens (FEE) dated February 2013, taking into account the following two binding
elements.
•
First, CHORUS GmbH and its subsidiaries as well as the 74 holding and operating entities
directly and indirectly held by the limited partnerships were under common management in
the years 2014 (up to December 17), 2013, and 2012. This is due to the fact that the entities
held by both CHORUS GmbH as well as the limited partnerships through the personally
liable (general) partners of the limited partnerships, which were subsidiaries of
CHORUS GmbH, were characterized by a common management that ultimately reported
directly or indirectly to the board of directors of CHORUS GmbH at the time.
•
Second, based on the nearly complete provision of services by the respective subsidiaries of
CHORUS GmbH to the individual limited partnerships and the holding and operating entities
held by the limited partnerships in the financial years 2014 (up to December 17), 2013, and
2012, the dependence of certain fees for such services on the overall performance of the
holding and operating entities, and taking common management into account, all of the
entities of the CHORUS Group and the holding and operating entities at such time were
managed as an economic unit and were characterized by a common economic interest of
the shareholders of the CHORUS Group and the limited partnerships. In addition, the
approval of 20 limited partnerships and the shareholders of CHORUS GmbH regarding the
subsequent reorganization of the CHORUS Group, and, in particular, with respect to the
contributions of the holding and operating entities, can be regarded as evidence of the
common economic interest.
Under the common management approach, the entities of the CHORUS Group and the
74 holding and operating entities were combined for the financial years 2014 (up to December 17), 2013,
and 2012 since they were all under a common management for the respective periods. Any transactions
between entities of the CHORUS Group and the holding and operating entities included in the Combined
Financial Statements were eliminated. The Combined Financial Statements under the common
management approach present the net assets, financial position and results of operations of CHORUS
Clean Energy AG (since its formation), CHORUS GmbH, its subsidiaries and the holding and operating
companies regardless of the ownership structure and any changes therein.
2.
Comparability of the Combined Financial Statements for the Financial Years 2014 and
2013
While the financial information used in the preparation of the Combined Financial Statements is
effectively equivalent to the financial information for the full twelve-month period ending December 31,
2014, common management (as described above under J.III.1. ‘‘—Basis of Preparation of the Combined
Financial Statements’’) ceased to exist upon the first contribution of the holding and operating entities to
the Company becoming effective on December 17, 2014. Therefore, the financial information in the
Combined Financial Statements for the financial year 2014 is formally specified as of and for the short
financial year ended December 17, 2014 and does not reflect the effects of the contribution of the holding
and operating entities to the Company. However, based on the further development of our business,
revenues and expenses during the short period from December 18, 2014 through December 31, 2014,
we believe that the deviation in the various revenues and expense items of the combined income
statements from the financial information that were presented for the twelve-month period ending
December 31, 2014 (if the entities had been formally included for the full twelve-month period) is not
material. As a result, the following discussion involving financial information for the financial year 2014 is
primarily based on the Combined Financial Statements for the period from January 1, 2014 to
December 17, 2014 and, to a lesser extent, on the Consolidated Financial Statements 2014. See
J.III.3. ‘‘—Consolidated Financial Statements 2014’’.
Furthermore, the Combined Financial Statements for the financial year 2014 up to the effective
date of the contributions do not reflect the impact of the contributions on the statement of financial position
since the contribution of the holding and operating companies resulted in the termination of the common
management. Due to the contributions, control has been established between CHORUS Clean Energy
AG as parent and CHORUS GmbH and its subsidiaries and the 74 holding and operating entities resulting
in the preparation of consolidated financial statements.
114
3.
Consolidated Financial Statements 2014
In addition, the audited consolidated financial statements of CHORUS Clean Energy AG for the
financial year ended December 31, 2014 included in this Prospectus only present financial information on
the Issuer, CHORUS GmbH and CHORUS GmbH’s subsidiaries but does not include the net assets,
results of operations and cash flows of the 74 contributed holding and operating entities holding the solar
and wind parks until the contribution occurred in December 2014.
For the preparation of these consolidated financial statements, the contribution of the interests in
CHORUS GmbH and its subsidiaries into CHORUS Clean Energy AG was a common control transaction
since the shareholders of CHORUS Clean Energy AG and CHORUS GmbH were identical at the time the
contribution was resolved and CHORUS GmbH was treated as the accounting acquirer. As a
consequence, the contribution of the interests in CHORUS GmbH and its subsidiaries into the Issuer in
December 2014 was not accounted for as a business combination under IFRS 3 but (from the viewpoint
of CHORUS GmbH) presented only the insertion of the Issuer as newly-formed holding company. Insofar,
the historical financial information of CHORUS GmbH and its subsidiaries are presented in the
consolidated financial statements for the full financial year 2014, including the comparative figures for the
financial year 2013, respectively.
Common control did not exist with respect to the 74 contributed holding and operating entities
before their contribution. Accordingly, the contribution of the 74 holding and operating entities into
CHORUS Clean Energy AG was accounted for as a single business combination, following the linkedtransaction approach in accordance with IFRS 3, resulting in the recognition of the contributed assets,
liabilities, and contingent liabilities of the 74 holding and operating entities at fair value as of the effective
date on which control was obtained (i.e., with their contribution in December 2014). As the combined
financial position of the Company is based on the book value of the assets in the Combined Financial
Statements, a comparison with the consolidated financial position as set forth in the Consolidated
Financial Statements 2014 is not meaningful. Furthermore, since a comprehensive description of the
entire current CHORUS Group including the 74 contributed holding and operating entities cannot be
provided by means of the audited consolidated financial statements of CHORUS Clean Energy AG for the
financial year ended December 31, 2014 are only briefly referred to in this section. The disclosure of
hidden reserves will lead to increased depreciation and amortization in future financial years, including in
our 2015 consolidated financial statements, compared to the 2014 Combined Financial Statements.
4.
Unaudited Condensed Interim Consolidated Financial Statements
Futhermore, the comparability of the condensed interim consolidated statement of profit or loss
and other comprehensive income for the three months ended March 31, 2014 and 2015 contained in the
Undaudited Condensed Interim Consolidated Financial Statements is limited since the 74 holding and
operating companies, including the solar and wind parks, were contributed in December 2014. Therefore,
they are not reflected in the results of operation for the three-month period ended March 31, 2014. For this
period in 2014, the financial information only includes the financial information of CHORUS GmbH and its
subsidiaries.
5.
Pro Forma Financial Information 2014
The unaudited pro forma financial information prepared for the financial year 2014 facilitates
comprehension of the fair value measurement resulting from the contribution of the assets and liabilities
of the contributed holding and operating entities as part of the business combination in accordance with
IFRS 3 and the impact of the related fair value measurement of the assets, liabilities and contingent
liabilities of the contributed holding and operating entities on CHORUS Group’s results of operations. See
the Pro Forma Consolidated Financial Information contained in the X. ‘‘Financial Information’’ section of
this Prospectus.
IV.
KEY ITEMS
1.
Revenues
FROM THE
COMBINED INCOME STATEMENTS
Revenues comprise primarily electricity revenues from the sale of electricity generated by our
solar and wind parks and service revenues from our asset management services.
115
2.
Other income
Other income principally comprises income from the release of accruals/compensation from
insurance companies and others, benefits in kind, recharges, reimbursement and other income.
3.
Personnel expenses
Personnel expenses include salaries, social security benefits and other employee benefits,
including employee bonuses and director’s fees.
4.
Other expenses
Other expenses include costs for the operation of the solar and wind parks, acquisition and
management expenses, costs for the intended listing on the stock exchange, advisors’ fees as well as
general administrative expenses such as occupancy costs, travel expenses, insurance policies,
advertising costs, telecommunications and vehicle expenses. The costs for solar and wind parks include
acquisition-related costs incurred during the acquisition that are not capitalized and general costs for the
construction of the plans as well as insurance policies and leasing payments.
5.
EBITDA
EBITDA is the total balance of revenue and other income less personnel expenses and other
expenses before amortization and depreciation, net financial results and income taxes.
6.
Amortization and depreciation
Amortization and depreciation expenses include expenses related to intangible assets and
property, plant and equipment. Amortization charges on intangible assets are attributable primarily to
computer software. Depreciation charges on property, plant and equipment are primarily attributable to
energy generation facilities.
7.
Net financial result
Net financial result is the balance of finance income, finance expenses, results of financial
investments accounted for at equity and valuation of interest rate swaps. Finance income relates to
foreign currency translation gains, dividend income on available-for-sale financial assets and interest
income on fixed-term deposits and cash held at banks. Financial expense relates primarily to interest
expense and, to a lesser extent, financial expense from impairment of non-current financial assets.
8.
Income tax
Income tax expenses are the balance of current taxes and deferred taxes. Current income taxes
include income taxes that arose during the current year and previous years. Deferred income taxes are
the balance of changes of deferred tax liabilities and deferred tax assets. The tax expenses shown are the
total of the taxes that arise for the legal entities in the various jurisdictions in which we operate. Therefore,
income tax for which the partners qualify as tax payor, but not the combined legal entity, is not reflected.
Thus, income taxes may vary from period to period depending on changes in taxable income by legal
entity, country-specific changes in tax legislation and the specific contribution of each legal entity on a
consolidated basis, among other factors.
116
V.
RESULTS
1.
Three months ended March 31, 2015 compared to the three months ended March 31, 2014
OF
OPERATIONS
The following table sets forth financial data from our consolidated income statement for the three
months ended March 31, 2015 (with comparative figures for the three months ended March 31, 2014):
For the
For the
three months
three months
ended
ended
March 31,
March 31,
2015
2014
(in g thousands)
(unaudited)
Revenues.....................................................................................
Other income ................................................................................
Personnel expenses.......................................................................
Other expenses.............................................................................
Profit (Loss) before interest, tax, depreciation and amortization
(EBITDA) .....................................................................................
Depreciation and amortization .........................................................
Profit (Loss) before interest and tax (EBIT)....................................
Finance income.............................................................................
Finance expenses .........................................................................
Valulation of interest-rate swaps ......................................................
Net financial result.......................................................................
12,365
505
(559)
(4,467)
267
83
(504)
(178)
7,844
(5,479)
2,365
152
(2,255)
(192)
(2,295)
(332)
(15)
(347)
0
(65)
(65)
Profit (Loss) before tax ................................................................
Income tax ...................................................................................
Loss for the period ......................................................................
70
(498)
(428)
(412)
106
(306)
a.
Revenues
Total revenues increased from e267 thousand in the three months ended March 31, 2014 to
e12,365 thousand in the three months ended March 31, 2015. The increase is attributable to the 74
holding and operating companies contributed into the Company in December 2014.
Electricity revenues increased to e10,210 thousand in the three months ended March 31, 2015.
No electricity revenues were recorded in the three months ended March 31, 2014.
Asset management revenues increased by e1,888 thousand from e267 thousand in the three
months ended March 31, 2014 to e2,155 thousand in the three months ended March 31, 2015.
b.
Other income
Other income increased by e422 thousand from e83 thousand in the three months ended
March 31, 2014 to e505 thousand in the three months ended March 31, 2015.
c.
Personnel expenses
Personnel expenses increased by e55 thousand, or 10.9%, from e504 thousand in the three
months ended March 31, 2014 to e559 thousand in the three months ended March 31, 2015.
d.
Other expenses
Other expenses increased from e178 thousand in the three months ended March 31, 2014 to
e4,467 thousand in the three months ended March 31, 2015. The increase is attributable to the 74 holding
and operating companies contributed into the Company in December 2014.
117
e.
EBITDA
EBITDA increased from negative EBITDA of e332 thousand in the three months ended March 31,
2014 to positive EBITDA of e7,844 thousand in the three months ended March 31, 2015 due to the
reasons described above.
f.
Net financial result
Net financial result decreased from a net financial loss of e65 thousand in the three months
ended March 31, 2014 to a net financial loss of e2,295 thousand in the three months ended March 31,
2015.
g.
Income tax
Income tax expenses for the three months ended March 31, 2015 amounted to negative
e498 thousand compared to e106 thousand in the three months ended March 31, 2014.
2.
Short financial year ended December 17, 2014 compared to the financial year
December 31, 2013
The following tables set forth selected financial data from our income statement for the periods
indicated. The information has been extracted from the audited combined financial statements as of and
for the short financial year ended December 17, 2014 and as of and for the financial years ended
December 31, 2013 and 2012.
For the short
financial year
ended
December 17,
2014
Revenues.................................................................
Other income............................................................
Personnel expenses ..................................................
Other expenses ........................................................
Earnings before interest, tax, depreciation and
amortization (EBITDA)...........................................
Depreciation and amortization .....................................
Profit before interest and tax (EBIT) ..........................
Results of financial investments accounted for at equity ..
Finance income ........................................................
Finance expenses .....................................................
Valuation of interest rate swaps ...................................
Net financial result...................................................
Profit before tax ......................................................
Income tax expense...................................................
Profit for the year/ Total comprehensive income ........
a.
For the
financial year
ended
December 31,
2013
(in g thousands)
(audited)
For the
financial year
ended
December 31,
2012
54,983
1,932
(2,149)
(12,036)
49,657
3,417
(2,117)
(12,828)
43,748
5,206
(2,382)
(12,915)
42,730
(17,752)
24,978
570
(15,546)
(5,660)
(20,636)
4,342
(612)
3,730
38,129
(21,110)
17,019
(30)
202
(17,292)
2,443
(14,677)
2,342
(1,435)
907
33,657
(13,673)
19,984
(30)
318
(16,035)
(3,452)
(19,199)
785
(121)
664
Revenues
Total revenues increased by e5,326 thousand, or 10.7%, from e49,657 thousand in the financial
year ended December 31, 2013 to e54,983 thousand in the short financial year ended December 17,
2014.
Electricity generation revenues increased by e5,150 thousand, or 10.6%, from e48,814 thousand
in the financial year ended December 31, 2013 to e53,964 thousand in the short financial year ended
December 17, 2014. This increase was primarily a result of higher revenues generated from the sale of
electricity in Germany and Austria, which increased by e4,450 thousand and e1,097 thousand,
respectively, in the financial year ended December 31, 2013 compared to the short financial year ended
December 17, 2014, and related to the first full year contribution of wind parks acquired in the previous
year. This increase was partly offset by a slight decline in electricity revenues in Italy from
118
e22,110 thousand in the financial year ended December 31, 2013 to e21,436 thousand in the short
financial year ended December 17, 2014 as a result of slightly lower levels of electricity production.
Asset management revenues increased by e176 thousand, or 20.9%, from e843 thousand in the
financial year ended December 31, 2013 to e1,019 thousand in the short financial year ended
December 17, 2014. This increase was a result of higher fees generated in Germany compared to the
prior year, primarily due to the expansion of our advisory services in 2014, in particular the establishment
of the Luxembourg umbrella fund CHORUS SICAV-SIF and its sub-funds. For the financial year ended
December 31, 2013 and the short financial year ended December 17, 2014, asset management revenues
were only generated in Germany.
b.
Other income
Other income decreased by e1,485 thousand, or 43.5% from e3,417 thousand in the financial
year ended December 31, 2013 to e1,932 thousand in the short financial year ended December 17, 2014.
The decrease was primarily due to a non-recurring reimbursement by the Italian power producer ENEL
for certain power lines that CHORUS built in connection with solar parks and that ENEL subsequently
acquired in the financial year ended December 31, 2013 (compared to no such reimbursement recorded
in the short financial year ended December 17, 2014), and, to a lesser extent, to a decrease in income
from release of accruals/compensation from insurance companies and others from e623 thousand in the
financial year ended December 31, 2013 to e341 thousand in the short financial year ended
December 17, 2014 resulting from a reimbursement from an insurance company related to defective
equipment in a solar park in Italy (compared to no such reimbursement recorded in the short financial year
ended December 17, 2014).
c.
Personnel expenses
Personnel expenses increased by e32 thousand, or 1.5%, from e2,117 thousand in the financial
year ended December 31, 2013 to e2,149 thousand in the short financial year ended December 17, 2014.
The increase was primarily a result of a slight increase in salaries from e1,803 thousand in the financial
year ended December 31, 2013 to e1,831 thousand in the short financial year ended December 17, 2014.
d.
Other expenses
Other expenses decreased by e792 thousand, or 6.2%, from e12,828 thousand in the financial
year ended December 31, 2013 to e12,036 thousand in the short financial year ended December 17,
2014. This decrease was primarily due to a decrease of e1,455 thousand in sales and service, warranty
and liability expenses in connection with in connection with fewer newly acquired projects in 2014 as
compared to 2013, and, to a lesser extent, to a decrease of e678 thousand in administrative expenses.
These effects were partly offset by an increase of e929 thousand in consulting and service fees in
connection with the establishment of the Luxembourg umbrella fund CHORUS SICAV-SIF and its
sub-funds.
e.
EBITDA
EBITDA increased by e4,601 thousand, or 12.1%, from e38,129 thousand in the financial year
ended December 31, 2013 to e42,730 thousand in the short financial year ended December 17, 2014 due
to the reasons described above.
f.
Net financial result
Net financial result declined by e5,959 thousand, or 40.6%, from a net financial loss of
e14,677 thousand in the financial year ended December 31, 2013 to a net financial loss of
e20,636 thousand in the short financial year ended December 17, 2014. The deterioration in net financial
result was primarily due to financial expenses from valuation of interest rate swaps recorded in the short
financial year ended December 17, 2014 in the amount of e5,660 thousand, compared to the previous
year, in which only e134 thousand in financial expenses from valuation of interest rate swaps and
e2,577 thousand in financial income from valuation of interest rate swaps were recorded. See
J.VI.4. ‘‘—Liquidity and Capital Resources—Financial Liabilities, Leasing Liabilities and Swaps’’.
119
g.
Income tax
Income tax expenses for the short financial year ended December 17, 2014 amounted to
e612 thousand compared to e1,435 thousand in the financial year ended December 31, 2013. The
difference was primarily driven by a combination of decreases in total current taxes and total deferred
taxes. Total current taxes decreased by e441 thousand from e851 thousand for the year ended
December 31, 2013 to e410 thousand for the short financial year ended December 17, 2014, whereas
total deferred taxes declined by e382 thousand from e584 thousand for the year ended December 31,
2013 to e202 thousand for the short financial year ended December 17, 2014. The nominal tax rate of
CHORUS AG remained unchanged at 25.6%. The effective tax rate for the short financial year ended
December 17, 2014 was 14.1%, down from 61.3% for the financial year ended December 31, 2013.
3.
Financial year ended December 31, 2013 compared to the financial year ended
December 31, 2012
a.
Revenues
Total revenues increased by e5,909 thousand, or 13.5%, from e43,748 thousand in the financial
year ended December 31, 2012 to e49,657 thousand in the financial year ended December 31, 2013.
Electricity generation revenues increased by e6,118 thousand, or 14.3%, from e42,696 thousand
in the financial year ended December 31, 2012 to e48,814 thousand in the financial year ended
December 31, 2013. This increase was primarily a result of higher electricity generation revenues from
our operations in Italy and, to a lesser extent, Germany, and first time electricity generation revenues from
our operations in France and Austria.
Asset management revenues decreased by e209 thousand from e1,052 thousand in the financial
year ended December 31, 2012 to e843 thousand in the financial year ended December 31, 2013.
b.
Other income
Other income decreased by e1,789 thousand, or 34.4%, from e5,206 thousand in the financial
year ended December 31, 2012 to e3,417 thousand in the financial year ended December 31, 2013. This
decrease was primarily due to a significant decline in income from release of accruals/compensation from
insurance companies and other from e2,904 thousand in the financial year ended December 31, 2012
relating to insurance payments for defective equipment and damages payments by a supplier to
e623 thousand in the financial year ended December 31, 2013 where there were no such one-off effects.
In the financial year ended December 31, 2013, we recorded a non-recurring reimbursement payment
from the Italian power producer ENEL for certain power lines that CHORUS had built in connection with
solar parks and that ENEL subsequently acquired.
c.
Personnel expenses
Personnel expenses decreased by e265 thousand, or 11.1%, from e2,382 thousand in the
financial year ended December 31, 2012 to e2,117 thousand in the financial year ended December 31,
2013. The decrease was primarily a result of a decrease in salaries from e2,083 thousand in the financial
year ended December 31, 2012 to e1,803 thousand in the financial year ended December 31, 2013.
d.
Other expenses
Other expenses decreased slightly by e87 thousand from e12,915 thousand in the financial year
ended December 31, 2012 to e12,828 thousand in the financial year ended December 31, 2013. This
decrease was primarily due to the combination of decreases in material costs / purchased services and
other expenses, which more than offset increases in leasing expenses, administrative expenses and, in
particular, sales and service, warranty and liability expenses in connection with the operation of additional
parks acquired in 2012. The increases in other expenses primarily related to the operation of new solar
and wind parks acquired in the course of the financial year ended December 31, 2012, for which the
operations of these new parks for a full 12-month period are reflected for the first time in the financial year
2013. In the same way, certain other expenses incurred in connection with the acquisition and launch of
the new parks in 2012 and, as a result, were significantly lower in 2013.
120
e.
EBITDA
EBITDA increased by e4,472 thousand, or 13.3%, from e33,657 thousand in the financial year
ended December 31, 2012 to e38,129 thousand in the financial year ended December 31, 2013 due to
the reasons described above.
f.
Net financial result
Net financial result improved by e4,522 thousand, or 23.6%, from a net financial loss of
e19,199 thousand in the financial year ended December 31, 2012 to a net financial loss of
e14,677 thousand in the financial year ended December 31, 2013. This increase in net financial result
was primarily due to a decrease in financial expenses from the valuation of interest rate swaps from
e3,452 thousand in the financial year ended December 31, 2012 to e134 thousand in the financial year
ended December 31, 2013. Furthermore, financial income from the valuation of interest rate swaps was
recorded in the amount of e2,577 thousand in the financial year ended December 31, 2013, compared to
2012, for which no such income was recorded. See J.VI.4. ‘‘—Liquidity and Capital Resources—Financial
Liabilities, Leasing Liabilities and Swaps’’.
g.
Income tax
Income tax for the financial year ended December 31, 2013 amounted to e1,435 thousand
compared to e121 thousand in the financial year ended December 31, 2012. The difference was primarily
the result of increases in both total current taxes and total deferred taxes.
4.
Consolidated Financial Statements 2014
With respect to the limited comparability of the Consolidated Financial Statements 2014, see
J.III.3. ‘‘—Comparability of Financial Information—Consolidated Financial Statements 2014’’.
Revenues decreased by e225 thousand, or 6.3%, from e3,574 thousand in the financial year
ended December 31, 2013 to e3,349 thousand in the financial year ended December 31, 2014. EBITDA
decreased by e2,089 thousand from e800 thousand in the financial year ended December 31, 2013 to
negative e1,289 thousand in the financial year ended December 31, 2014. The decrease was primarily
due to a significant increase in other expenses, which increased from e951 thousand in the financial year
ended December 31, 2013 to e3,419 thousand in the financial year ended December 31, 2014, as a result
of higher administrative expenses related to the Reorganization of the CHORUS Group. The decrease in
EBITDA was only partly offset by an increase in other income, which increased from e294 thousand in the
financial year ended December 31, 2013 to e930 thousand in the financial year ended December 31,
2014.
VI.
LIQUIDITY
AND
CAPITAL RESOURCES
Our principal sources of funds consist of cash from operating activities and cash and cash
equivalents on hand. Bank loans and other financing are incurred as project financing at the level of the
SPVs operating the solar and wind parks.
CHORUS does not exclude the possibility that it will take out smaller short-term credit facilities
from banks in the future to increase its flexibility regarding the acquisition of renewable energy parks.
121
1.
Cash Flows for the three months ended March 31, 2015 compared to the three months
ended March 31, 2014
The table below summarizes our consolidated statement of cash flows for the three months
ended March 31, 2015 and 2014:
For the
For the
three months
three months
ended
ended
March 31,
March 31,
2015
2014
(in g thousands)
(unaudited)
Cash Flow from Operating Activities .............................................
Cash Flow from Investing Activities ..............................................
Cash Flow from Financing Activities .............................................
Cash and cash equivalents at beginning of period ..............................
Cash and cash equivalents at end of period ......................................
4,354
(3,847)
(7,770)
21,199
13,935
219
(1)
228
866
1,312
Cash flow from operating activities increased from a cash inflow of e219 thousand in the three
months ended March 31, 2014 to a cash inflow of e4,354 thousand in the three months ended March 31,
2015. This increase was primarily driven by the significantly higher earnings before interest and tax in the
three months ended March 31, 2015 compared to the same period in the previous year.
Cash flow from investing activities decreased from a cash outflow of e1 thousand in the three
months ended March 31, 2014 to a cash outflow of e3,847 thousand in the three months ended March 31,
2015. This decrease was attributable to the payments on investments in equity and debt insruments in the
three months ended March 31, 2015 compared to the same period in the previous year, when no such
payments were recorded.
Cash flow from financing activities decreased from a cash inflow of e228 thousand in the three
months ended March 31, 2014 to a cash outflow of e7,770 thousand in the three months ended March 31,
2015. This decrease was primarily attributable to repayment of borrowing/debt and interest paid,
compared to no such payments recorded in the three months ended March 31, 2014.
2.
Cash Flows for the short financial year ended December 17, 2014 compared to the
financial year December 31, 2013 and for the financial year ended December 31, 2013
compared to the financial year ended December 31, 2012
The table below summarizes our combined cash flows for the short financial year ended
December 17, 2014 and the financial years ended December 31, 2013 and 2012:
For the short
financial year
ended
December 17,
2014
Cash Flow from Operating Activities .........................
Cash Flow from Investing Activities ..........................
Cash Flow from Financing Activities .........................
Cash and cash equivalents at beginning of period ..........
Cash and cash equivalents at end of period ..................
a.
39,525
(3,014)
(40,501)
19,455
15,465
For the
financial year
ended
December 31,
2013
(in g thousands)
(audited)
37,028
(1,370)
(46,409)
30,204
19,455
For the
financial year
ended
December 31,
2012
32,271
(4,382)
(15,694)
18,010
30,204
Cash flow from operating activities
Cash flow from operating activities increased by e2,497 thousand, or 6.7%, from
e37,028 thousand in the financial year ended December 31, 2013 to e39,525 thousand in the short
financial year ended December 17, 2014. This increase was primarily driven by higher earnings before
interest and tax, which increased from e17,018 thousand for the financial year ended December 31, 2013
to e24,977 thousand for the short financial year ended December 17, 2014 and a decrease in
depreciation and amortization from e21,110 thousand to e17,752 thousand over the same period as well
122
as other assets and other liabilities not attributable to investment and financing activities, at December 17,
2014 compared to the previous year.
Cash flow from operating activities increased by e4,757 thousand, or 14.7%, from
e32,271 thousand in the financial year ended December 31, 2012 to e37,028 thousand in the financial
year ended December 31, 2013. This increase was primarily driven by an increase in depreciation and
amortization, which increased from e13,673 thousand in the financial year ended December 31, 2012 to
e21,110 thousand in the financial year ended December 31, 2013 and related to the new wind and solar
parks acquired in the previous year.
b.
Cash flow from investing activities
Cash flow from investing activities decreased by e1,644 thousand from a cash outflow of
e1,370 thousand in the financial year ended December 31, 2013 to a cash outflow of e3,014 thousand in
the short financial year ended December 17, 2014. This decrease was primarily driven by higher
payments on investments in property, plant and equipment and intangible assets, which increased from
e375 thousand in the financial year ended December 31, 2013 to e3,155 thousand in the short financial
year ended December 17, 2014.
Cash flow from investing activities increased by e3,012 thousand from a cash outflow of
e4,382 thousand in the financial year ended December 31, 2012 to a cash outflow of e1,370 thousand in
the financial year ended December 31, 2013. The increase was primarily attributable to significantly lower
payments on investments in property, plant and equipment and intangible assets, of e7,961 thousand in
the financial year ended December 31, 2012 compared to e375 thousand in the financial year ended
December 31, 2013, due to fewer payments in connection with the acquisitions of new wind and solar
parks compared to the previous year.
c.
Cash flow from financing activities
Cash flow from financing activities increased by e5,908 thousand from a cash outflow of
e46,409 thousand in the financial year ended December 31, 2013 to a cash outflow of e40,501 thousand
in the short financial year ended December 17, 2014. This increase was primarily attributable to a
decrease in proceeds from shareholders loans from e4,546 thousand in the year ended December 31,
2013 to e1,518 thousand in the short financial year ended December 17, 2014.
Cash flow from financing activities decreased significantly by e30,715 thousand from a cash
outflow of e15,694 thousand in the financial year ended December 31, 2012 to a cash outflow of
e46,409 thousand in the financial year ended December 31, 2013. The decrease was primarily due to
lower proceeds from borrowing/debt, which declined from e16,474 thousand in the financial year ended
December 31, 2012 to e1,997 thousand in the financial year ended December 31, 2013 as well as lower
proceeds from shareholders, which declined from e12,770 thousand in the financial year ended
December 31, 2012 to e1,703 thousand in the financial year ended December 31, 2013.
3.
Consolidated Financial Statements 2014
With respect to the limited comparability of the Consolidated Financial Statements 2014, see
J.III.3. ‘‘—Comparability of Financial Information—Consolidated Financial Statements 2014’’.
Cash flow from operating activities increased from a cash outflow of e6,608 thousand in the
financial year ended December 31, 2013 to a cash inflow of e4,528 thousand in the financial year ended
December 31, 2014. The increase was primarily related to a significant increase in other assets not
attributable to investment and financing activities, which more than offset a corresponding increase in
other liabilities not attributable to investment and financing activities and despite a decline in profit (loss)
before interest and tax. Cash flow from investing activities increased significantly from a cash outflow of
e140 thousand in the financial year ended December 31, 2013 to a cash inflow of e14,638 thousand in the
financial year ended December 31, 2014. The increase was almost entirely attributable to
e14,778 thousand in cash acquired in business combination. Cash flow from financing activities
decreased from e4,422 thousand for the yeard ended December 31, 2013 to e1,168 thousand for the
financial year ended December 31, 2014. The decrease was primarily related to e4,500 thousand in
123
repayments of shareholder loans entered into in 2014, which partly offset the e5,855 thousand recorded
under proceeds from shareholders.
4.
Financial Liabilities, Leasing Liabilities and Swaps
As of December 17, 2014, our contractual obligations primarily consisted of financial liabilities
and, to a lesser extent, trade payables and other current and non-current liabilities. The following table
shows our undiscounted contractually agreed cash outflows from financial instruments as of
December 17, 2014 by the period in which they are due to mature:
Payments due by period
Due in
More than
1 - 5 years
5 years
(in g thousands)
Within
1 year
Liabilities to limited partners .......................
Financial liabilities ......................................
of which: bank loans ..................................
of which: leasing liabilities ...........................
of which: interest rate swaps with negative
fair value ...............................................
Trade payables ...........................................
Total ..........................................................
Total
0
36,022
31,138
3,056
0
154,634
137,013
12,225
4,202
218,354
185,572
29,795
4,202
409,010
353,723
45,077
1,828
4,771
40,793
5,396
154,634
2,987
222,556
10,211
4,771
417,983
The financial liabilities represent primarily the fixed interest rate bank financing secured by the
SPVs operating the wind and solar parks, which CHORUS assumed through the acquisition of the
respective SPVs. As of December 31, 2014, the average interest rate of such financial liabilities was
4.39%, the average remaining term was 13.7 years and the average remaining period for which fixed
interest rates are secured was 9.7 years—in each case based on a weighted average of the outstanding
financial liabilities.
The leasing liabilities relate to finance lease contracts with a term of 18 years in respect of our
Italian solar parks. As of December 17, 2014, the present value of minimum lease payments in respect of
leasing liabilities totaled e27,334 thousand (December 31, 2013: e28,574 thousand), of which
e1,240 thousand (December 31, 2013: e1,167 thousand) were current liabilities.
The following table shows the notional amounts and maturities of our outstanding interest rate
swaps as of December 17, 2014:
Contractually
agreed fixed
interest rates
Outstanding ‘‘Receive-Floating Pay-Fixed Swaps’’
Less than 1 year ....................................................
1 to 2 years ...........................................................
2 to 5 years ...........................................................
More than 5 years ..................................................
Total ....................................................................
Notional
amount
(in g thousands)
1.65% to 3.45%
81,475
81,475
Fair value
(9,608)
(9,608)
The interest rate swaps mature in the years 2021 to 2027. The variable interest rate of the interest
rate swaps correspond primarily to the 3-month Euribor. The CHORUS Group pays a fixed interest rate.
For additional information on our interest rate swaps, see Note 9.4 of our Combined Financial
Statements.
124
VII.
FINANCIAL POSITION
1.
Statement of Financial Position as of March 31, 2015 compared to December 31, 2014
(Consolidated Basis)
The table below presents our consolidated statement of financial position as of December 31,
2014 and March 31, 2015:
As of
March 31,
2015
As of
December 31,
2014
(unaudited)
(audited)
(in g thousands)
ASSETS
Non-current Assets........................................................................
Intangible assets and goodwill ...........................................................
Property, plant and equipment...........................................................
Financial investments at equity ..........................................................
Non-current financial assets ..............................................................
Deferred tax assets .........................................................................
452,450
178,483
250,204
541
4,712
18,510
457,343
181,149
252,521
480
4,374
18,819
Current Assets ..............................................................................
Trade and other receivables..............................................................
Income taxes receivable ...................................................................
Current financial assets ....................................................................
Current non-financial assets ..............................................................
Liquid funds ...................................................................................
Cash and cash equivalents ............................................................
Restricted cash and cash equivalents..............................................
50,410
9,014
402
4,792
7,697
28,505
13,935
14,570
51,961
6,420
826
1,327
6,098
37,290
21,199
16,091
Total Assets ..................................................................................
502,860
509,304
EQUITY AND LIABILITIES
Equity
Share capital ..................................................................................
Capital reserve ...............................................................................
Fair value reserve ...........................................................................
Retained earnings ...........................................................................
Contributions in-cash not yet registered ..............................................
Contributions in-kind not yet registered ...............................................
Equity attributable to the owners of CHORUS Clean Energy AG .......
Non-controlling interests ...................................................................
17,449
103,663
144
1,840
123,096
25
50
2,269
5,855
115,645
123,819
25
Non-current liabilities.....................................................................
Liabilities to limited partners ..............................................................
Non-current provisions .....................................................................
Non-current financial liabilities ...........................................................
Deferred tax liabilities.......................................................................
Current liabilities ...........................................................................
Current provisions ...........................................................................
Trade payables ...............................................................................
Income taxes payable ......................................................................
Current financial liabilities .................................................................
Other current liabilities .....................................................................
Deferred income .............................................................................
343,002
3,959
3,861
333,754
1,428
36,737
1,748
4,043
3,878
22,036
4,733
299
350,108
4,034
3,358
341,057
1,659
35,352
1,382
4,716
3,537
21,446
3,431
840
Total Equity and Liabilities .............................................................
502,860
509,304
a.
Non-current assets
Non-current assets decreased by e4,893 thousand, or 1.1%, from e457,343 thousand at
December 31, 2014 to e452,450 thousand at March 31, 2015. The decrease was primarily due to
decreases in intangible assets and goodwill and property, plant and equipment as of March 31, 2015
compared to December 31, 2014.
125
b.
Current assets
Current assets decreased by e1,551 thousand, or 3.0%, from e51,961 thousand at
December 31, 2014 to e50,410 thousand at March 31, 2015. The decrease was primarily due to lower
liquid funds at March 31, 2015 compared to December 31, 2014. The decrease was partly offset by an
increase in current financial assets and trade and other receivables.
c.
Equity
Total equity attributable to the owners of CHORUS Clean Energy AG remained almost
unchanged, decreasing slightly from e123,819 thousand at December 31, 2014 to e123,096 thousand at
March 31, 2015.
d.
Non-current liabilities
Non-current liabilities decreased by e7,196 thousand, or 2.0%, from e350,108 thousand at
December 31, 2014 to e343,002 thousand at March 31, 2015. The decrease was primarily due to a
decrease in non-current financial liabilities from e341,057 thousand at December 31, 2014 to
e333,754 thousand at March 31, 2015.
e.
Current liabilities
Current liabilities increased by e1,385 thousand, or 3.9%, from e35,352 thousand at
December 31, 2014 to e36,737 thousand at March 31, 2015. The increase was primarily attributable to
increases in current financial liabilities and other current liabilities, which were partly offset by decreases
in trade payables and deferred income as of March 31, 2015 compared to December 31, 2014.
126
2.
Statement of Financial Position as of December 17, 2014 (Short Financial Year),
December 31, 2013 and 2012 (Combined Basis)
The table below presents our combined statement of financial position as of the short financial
year ended December 17, 2014 and the financial years ended December 31, 2013 and 2012:
As of
December 17,
2014
As of
As of
December 31,
December 31,
2013
2012
(in g thousands)
(audited)
ASSETS
Non-current Assets .................................................
Intangible assets.......................................................
Property, plant and equipment ....................................
Financial investments at equity ...................................
Non-current financial assets .......................................
Non-current non-financial assets .................................
Deferred tax assets ...................................................
401,471
230
387,144
480
4,374
6,614
2,629
409,034
173
395,877
200
3,583
7,002
2,199
367,071
15
353,432
229
3,839
6,937
2,619
Current Assets........................................................
Trade and other receivables .......................................
Receivables against shareholders ...............................
Income taxes receivable ............................................
Current financial assets .............................................
Current non-financial assets .......................................
Liquid Funds ..........................................................
Cash and cash equivalents ........................................
Restricted cash and cash equivalents ..........................
47,722
6,420
827
1,327
7,592
31,556
15,465
16,091
54,609
6,626
1,518
831
7,472
5,276
32,886
19,455
13,431
54,646
7,152
319
424
1,726
5,796
39,229
30,204
9,025
Total Assets ...........................................................
449,193
463,643
421,717
61,803
61,600
61,046
61,778
25
61,589
11
61,046
-
NON-CURRENT LIABILITIES ....................................
Liabilities to limited partners .......................................
Non-current provisions ...............................................
Non-current financial liabilities .....................................
Deferred tax liabilities ................................................
316,548
4,034
3,311
307,883
1,320
323,585
3,724
2,222
316,936
703
295,919
3,552
2,255
289,609
503
CURRENT LIABILITIES ............................................
Current provisions .....................................................
Trade payables ........................................................
Income taxes payable................................................
Current financial liabilities...........................................
Other current liabilities ...............................................
Liabilities to shareholders ...........................................
Deferred income .......................................................
70,842
1,328
4,771
374
21,567
3,363
38,659
780
78,458
374
6,720
168
21,491
1,642
47,272
791
64,752
316
7,198
86
23,700
3,133
29,698
621
Total Net Assets and Liabilities ................................
449,193
463,643
421,717
NET ASSETS AND LIABILITIES
Total net assets ......................................................
Net assets attributable to shareholders of the combined
group ...................................................................
Non-controlling interests.............................................
a.
Non-current assets
Non-current assets decreased by e7,563 thousand, or 1.8%, from e409,034 thousand at
December 31, 2013 to e401,471 thousand at December 17, 2014. The decrease was primarily due to a
decrease in property, plant and equipment from e395,877 thousand at December 31, 2013 to
e387,144 thousand at December 17, 2014, which related to fewer investments in wind and solar parks
during the year compared to the prior year.
127
Non-current assets increased by e41,963 thousand, or 11.4%, from e367,071 thousand at
December 31, 2012 to e409,034 thousand at December 31, 2013. The increase was primarily due to an
increase in property, plant and equipment from e353,432 thousand at December 31, 2012 to
e395,877 thousand at December 31, 2013, which related to additional investments in wind and solar
parks plants during the year.
b.
Current assets
Current assets decreased by e6,887 thousand, or 12.6%, from e54,609 thousand at
December 31, 2013 to e47,722 thousand at December 17, 2014. The decrease was primarily due to a
decrease in current financial assets, which declined from e7,472 thousand at December 31, 2013 to
e1,327 thousand at December 17, 2014 and which related to a lower amount of outstanding bills payable
by grid operators for electricity sold in the last months of the calendar year and to a decrease in
receivables against shareholders, which decreased from e1,518 thousand at December 31, 2013 to zero
at December 17, 2014.
Current assets decreased by e37 thousand from e54,646 thousand at December 31, 2012 to
e54,609 thousand at December 31, 2013. The decrease was primarily due to a decrease in liquid funds
from e39,229 thousand at December 31, 2012 to e32,886 thousand at December 31, 2013. Such
decrease was to a large part offset by an increase in current financial assets, from e1,726 thousand at
December 31, 2012 compared to e7,472 thousand at December 31, 2013, which related to a prepayment
for the acquisition of a German wind park to be sold to CHORUS SICAV-SIF in 2014 and therefore was
recorded as an asset held for sale as of December 31, 2013.
c.
Non-current liabilities
Non-current liabilities decreased by e7,037 thousand, or 2.2%, from e323,585 thousand at
December 31, 2013 to e316,548 thousand at December 17, 2014. The decrease was primarily due to a
decrease in non-current financial liabilities from e316,936 thousand at December 31, 2013 to
e307,883 thousand at December 17, 2014, which related to the acquisition of a new solar park in
Germany and the related bank financing. See also Notes 5 and 7.15 of the Combined Financial
Statements.
Non-current liabilities increased by e27,666 thousand, or 9.3%, from e295,919 thousand at
December 31, 2012 to e323,585 thousand at December 31, 2013. The increase was primarily due to an
increase in non-current financial liabilities from e289,609 thousand at December 31, 2012 to
e316,936 thousand at December 31, 2013, which related to six new wind and solar park acquisitions and
their respective bank financings. See also Notes 5 and 7.15 of the Combined Financial Statements.
d.
Current liabilities
Current liabilities decreased by e7,616 thousand, or 9.7%, from e78,458 thousand at
December 31, 2013 to e70,842 thousand at December 17, 2014. The decrease was primarily due to a
decrease in liabilities to shareholders from e47,272 thousand at December 31, 2013 to e38,659 thousand
at December 17, 2014, which related primarily to a short-term shareholder loan provided in 2013 in
connection with a new acquisition. The decrease was, to a lesser extent, related to a decrease in trade
payables, from e6,720 thousand at December 31, 2013 to e4,771 thousand at December 17, 2014, which
related to outstanding payments to third parties in connection with two new wind parks acquired in
financial year 2013 but which only commenced operations in the fourth quarter of that year. This decrease
was only partly offset by increases in other current liabilities and current provisions as of December 17,
2014 compared to the prior year-end, which related to a short term shareholder loan and an increase in
accruals for outstanding supplier invoices, respectively.
Current liabilities increased by e13,706 thousand, or 21.2%, from e64,752 thousand at
December 31, 2012 to e78,458 thousand at December 31, 2013. The increase was primarily due to an
increase in liabilities to shareholders from e29,698 thousand at December 31, 2012 to e47,272 thousand
at December 31, 2013, which related primarily to a short-term shareholder loan in connection with a new
acquisition.
128
3.
Statement of Financial Position as of December 31, 2014 and December 31, 2013
(Consolidated Basis)
With respect to the limited comparability of the Consolidated Financial Statements 2014, see
J.III.3. ‘‘—Comparability of Financial Information—Consolidated Financial Statements 2014’’.
Non-current assets increased by e457,083 thousand, from e260 thousand at December 31, 2013
to e457,343 thousand at December 31, 2014. Current assets increased by e42,571 thousand from
e9,390 thousand at December 31, 2013 to e51,961 thousand at December 31, 2014. Non-current
liabilities increased by e350,104 thousand from e4 thousand at December 31, 2013 to
e350,108 thousand at December 31, 2014. Current liabilities increased by e29,865 thousand from
e5,487 thousand at December 31, 2013 to e35,352 thousand at December 31, 2014.
4.
Capital Expenditure and Investments
Our capital expenditure and investments in the three months ended March 31, 2015, the short
financial year ended December 17, 2014 and the financial years ended December 31, 2013 and 2012
related primarily to the acquisition of additional wind and solar parks and the integration of their
businesses. We calculate capital expenditure as the sum of additions and changes to the combined group
to property, plant and equipment through wind and solar parks and additions to intangible assets.
In the three months ended March 31, 2015, no significant capital expenditures were made.
In the short financial year ended December 17, 2014, total capital expenditures amounted to
e9,058 thousand, which related to the acquisition of the solar park held by CHORUS CleanTech GmbH &
Co, Solarpark Warrenzin KG in Germany in January of that year.
In the financial year ended December 31, 2013, our total capital expenditures amounted to
e60,379 thousand. These related primarily to the acquisition of one new wind park in Germany (held by
CHORUS CleanTech GmbH & Co. Windpark Ruhlkirchen KG) and one new solar park in Germany (held
by CHORUS Clean Tech GmbH & Co. Solarpark Eisleben KG), a new wind park in Austria (held by
Windpark Pongratzer Kogel GmbH), two solar parks in Italy (held by CHORUS Solar Toscana 5. Srl & Co.
Ternavasso Uno SAS and CHORUS Solar Toscana 5. Srl & Co. Ternavasso Due SAS, both located in
Ternavasso) and a wind park in France (held by Centrale Eolienne de Bihy Sarl., located in St. Bihy).
In the financial year ended December 31, 2012, our total capital expenditures amounted to
e106,081 thousand. These related primarily to the acquisition of 16 new solar parks, nine of which are
located in Germany and seven of which are located in Italy. The nine new solar parks in Germany are held
by CHORUS CleanTech GmbH & Co Solarpark Neuenhagen KG, CHORUS CleanTech GmbH & Co.
Solarpark Gut Werchau KG, CHORUS CleanTech GmbH & Co. Solarpark Gardelegen KG, CHORUS
CleanTech GmbH & Co. Solarpark Scheibenberg KG, CHORUS CleanTech GmbH & Co. Solarpark
Greiz KG, CHORUS CleanTech GmbH & Co. Solarpark Ruhland KG, CHORUS CleanTech GmbH & Co.
Solarpark Kematinger Wiesen KG, CHORUS CleanTech GmbH & Co. Solarpark Bitterfeld KG, and
CHORUS CleanTech GmbH & Co. Solarpark Burgheim KG. The seven new solar parks in Italy are held
by Collechio Energy di CHORUS Solar 5. Srl & Co. SAS, Atlantis Energy di CHORUS Solar Italia Centrale
5. Srl & Co. SAS, Cagli Solar di CHORUS Solar Italia Centrale 5. Srl & Co. SAS, Idea Energy SAS di
CHORUS Solar Toscana 5. Srl & Co. SAS, Le Lame SAS di CHORUS Solar Toscana 5. Srl & Co. SAS,
Rasena Solare SAS di CHORUS Solar Toscana 5. Srl & Co. SAS, and San Giuliano Energy di CHORUS
Solar Toscana 5. Srl & Co. SAS.
For further details on the various solar and wind parks acquired per year and the contributions of
these additions to the CHORUS Group, including the identifiable assets and liabilities acquired, see
Note 5 of our Combined Financial Statements.
We do not have a fixed capital expenditure budget for the current financial year. We plan to
finance future investments from fees generated from the initiation of new funds, cash flow from operating
activities and cash and cash equivalents as well as from the proceeds from this Offering (see
D. ‘‘Reasons for the Offering and Use of Proceeds’’).
129
VIII.
OFF-BALANCE SHEET ARRANGEMENTS
We are not a party to any off-balance sheet arrangements that have, or are reasonably likely to
have, a current or future material effect on our financial condition, results of operations, liquidity, capital
expenditure or capital resources.
IX.
CONTINGENT LIABILITIES
We do not have any material contingent liabilities not reflected in our financial statements.
X.
CRITICAL ACCOUNTING POLICIES
The preparation of our financial statements requires us to make judgments, estimates and
assumptions that affect the reported amounts of revenue, expenses, assets and liabilities. We
re-evaluate our estimates on an ongoing basis and base our estimates on historical experience and on
various other assumptions that we believe to be reasonable under the circumstances, the results of which
form the basis for making judgments about the value of such assets and liabilities that are not readily
available from other sources. Actual results may differ from these estimates under different assumptions
or conditions. In particular, items where we have applied significant judgment and that have a significant
risk of causing a material adjustment to the carrying amounts of assets and liabilities within our next
financial year, are discussed below. See also Note 3 to our Combined Financial Statements.
The foregoing assumptions and estimates are based on facts, circumstances and trends at the
end of each of the reporting period. As of the date of this Prospectus, we do not expect any material
change in the underlying assumptions and estimates.
1.
Additions to CHORUS Group
The CHORUS Group expanded during the financial years 2012 to 2014 by companies over which
the Fund KGs gained control. Due to the common management approach, they are considered in the
scope of combination, even if CHORUS Group did not control the companies. Assets and liabilites have
been included with their carrying amounts.
The results of the acquired companies are included in the combined statement of profit or loss
based on their Group affiliation, i.e., beginning with their effective acquisition date (possibility of control).
For more detailed information, see Notes 4.2 and 5 and Appendix 1 of the Combined Financial
Statements.
2.
Impairment of non-financial assets
The CHORUS Group assesses whether there are any indicators of impairment for all
non-financial assets at each reporting date. Other non-financial assets are tested for impairment when
there are indications that the carrying amounts may not be recoverable. Specific fundamental
assumptions were made to determine the recoverable amount when assessing the recoverability of
intangible assets and property, plant and equipment of the CHORUS Group. In this context, the expected
cash flows used in impairment testing are derived from budgets from medium-term planning for each
respective cash generating unit. We assume that the assumptions and estimates underlying the
discounted cash flows are appropriate. However, changes in the economic environment and the industryspecific growth assumptions can have consequences for impairment testing resulting in the need to
recognize additional impairment losses or to reverse impairment losses in the future.
3.
Income Taxes and Deferred Tax Assets
Deferred taxes on income are calculated annually based on the balance sheet approach
consistent with the provisions of IAS 12 Income Taxes for the accounting treatment of income tax. In order
to account for the tax consequences of differences between the carrying amounts of assets and liabilities
in the combined statement of financial position and the corresponding tax assessment bases as well as
for differences arising due to consolidation processes and for tax loss carryforwards, deferred taxes are
recognized each year based on the tax rates applicable now or in the near future for taxable profits if these
differences are expected to be eliminated over time. Deferred tax liabilities are not recognized if the
temporary difference arises from the initial recognition of goodwill.
130
If necessary, deferred tax assets are written down to the amount likely to be realized. The taxes to
be paid for the reporting period or refunded by the tax authorities, plus or minus the changes in the
deferred taxes (to be recognized in profit or loss), are presented under income tax expense. The impact of
changes in tax rates on deferred tax assets or liabilities is taken into account in the period in which the
change was enacted.
Deferred tax assets for tax loss carryforwards are recognized to the extent that tax privileges are
likely to be realized based on future taxable profits and are reduced to the extent that it is no longer
probable that sufficient taxable profits will be available to allow all or part of the tax asset to be recovered.
Differences between our expectations and our original estimates will impact the recognition of deferred
tax assets and income tax charges in the period in which such estimates have been changed.
4.
Provisions for asset retirement obligations relating to solar and wind parks
Such provisions are recognized when it is considered probable that economical, legal, ecological
and asset retirement obligations will result in future outflows of economic benefits, when the costs can be
estimated reliably and the measures in question are not expected to result in future inflows of economic
benefits. The estimate of future costs is subject to many uncertainties, including legal uncertainties based
on the applicable laws and regulations and with uncertainties regarding to the actual conditions in the
different countries and operating locations. In particular, estimates of costs are based on industry
experiences in similar cases, current costs and new developments that have an impact on the costs. Any
changes to these estimates could have an impact on the future results of the Group. For further details,
see Notes 4.12 and 7.13 of our Combined Financial Statements.
XI.
ADDITIONAL INFORMATION FROM CHORUS CLEAN ENERGY AG’S FINANCIAL
STATEMENTS FOR THE SHORT FINANCIAL YEAR ENDED DECEMBER 31, 2014 PREPARED
IN ACCORDANCE WITH HGB
The Company was formed on July 31, 2014 and was entered into the commercial register of the
local court (Amtsgericht) of Munich, Germany, on August 4, 2014 under number HRB 213342. The
Company’s unconsolidated net result in accordance with the German Commercial Code
(Handelsgesetzbuch) for the short financial year ended December 31, 2014 amounted to an accumulated
loss of e1,484 thousand.
On December 4, 2014, the annual general meeting of the Company passed a resolution to
increase the share capital by e17,398,539 to a total of e17,448,539, to be paid by cash contributions
(e585,500) and by contributions in kind (e16,813,039), and by issuing 17,398,539 new shares without par
value. In December 2014, the new shares were subscribed and the cash contributions and contributions
in kind were made. The capital increase was entered into the commercial register on February 23, 2015.
For additional details, see N. ‘‘Reorganization of the CHORUS Group’’.
Due to the fact that the capital increase by cash contribution and by contribution in kind was
entered into the commercial register after the balance sheet date, the entire contribution, amounting to
e156,438,905.44, of which e17,398,539 relate to subscribed capital and e139,040,366.44 relate to capital
reserve, is reported under a special line item named ‘‘Special item to record contributions-in-kind and in
cash/subscribed capital for capital increase not yet registered’’.
The Company’s annual unconsolidated financial statements for the short financial year ended
December 31, 2014 are included in the X. ‘‘Financial Information’’ section of this Prospectus.
131
K. INDUSTRY
The information presented in this section has been derived from several sources, as there is no
single industry report or other source that covers all of the areas in which we operate. We have derived
information from third-party sources that are independent from us. See B.IV. ‘‘General Information—
Sources of Market Data’’ for more information.
I.
MARKETS
1.
Overview
FOR
RENEWABLE ENERGY
Between 2005 and 2014, the globally installed capacity from wind parks increased annually by
almost 23% on average and from photovoltaic facilities by 44%. As at December 31, 2014, the cumulative
installed wind power capacity was 369.6 GW globally. (Source: GWEC, ‘‘Global Wind Report Annual
Market Update 2014’’) The market for photovoltaic energy experienced an even more dynamic
development. Between 2011 and 2013 the cumulative global installed capacity almost doubled: As at
December 31, 2013 a cumulative total of about 139 GW was installed, compared to 71 GW as at
December 31, 2011. (Source: EPIA, ‘‘Global Market Outlook For Photovoltaics 2014-2018’’) According to
the International Energy Agency (‘‘IEA’’) and its ‘‘New Policies Scenario’’, energy generation from
renewable sources will provide 18% of all electricity generation in 2035. By comparison, in 2011
renewables met 13% of the world’s primary energy demand. In 2035, energy from photovoltaics is
expected to provide about 2.6% and energy from wind power 7.5% of the total electricity generated. The
forecast growth rates for photovoltaics predict a seven-fold increase between 2011 and 2035. (Source:
IEA, ‘‘World Energy Outlook 2013’’) The New Policies Scenario or baseline scenario by the IEA takes
account of broad policy commitments and plans that have been announced by countries, including
national pledges to reduce greenhouse-gas emissions and plans to phase out fossil-energy subsidies,
even if the measures to implement these commitments have yet to be identified or announced.
The rapid growth of the photovoltaic and wind energy market has been further driven by the
continuous expansion of the legal frameworks by various countries and their governments and rapidly
falling costs. The rapid expansion of renewable energy sources is expected to require additional
investments in the amount of $6.5 trillion from 2013 to 2035. From these expected investments, 23% are
attributable to photovoltaic capacity and 33% to wind energy capacity. (Source: IEA, ‘‘World Energy
Outlook 2013’’)
In 2013, total investments in renewable energy in Europe reached $48 billion. Furthermore,
renewable energy companies’ raised $11 billion in equity on the public market, which was spurred on by
the rally in clean energy share prices and by institutional investors’ increased appetite for investments
offering solid yields on portfolios of operating projects. (Source: Frankfurt School—UNEP Collaborating
Centre for Climate & Sustainable Energy Finance, ‘‘Global Trends in Renewable Energy Investment
2015’’)
2.
Europe
The European landscape for renewable energy has changed considerably over the last 17 years.
In 1997, the European Commission set a target of 12% of all energy generated to come from renewable
energy by 2010. Since a proportion of 9% had already been achieved by 2006, the European
Commission adjusted this target. In its Directive 2009/28/EC of 2009 (‘‘Renewable Energy Directive
2009’’), the European Commission set new ambitious targets for all EU member states, according to
which the EU aims to achieve a proportion of 20% of all electricity generated to come from renewable
energy in 2020. In addition, at the EU summit on climate policy which took place in Brussels in October
2014, the EU member states agreed, inter alia, the increasing of the share of renewable energy to at least
27% of the EU’s energy consumption by 2030. See L.I. ‘‘Regulation—Regulatory Environment and Legal
Framework in Europe’’.
132
The diagram below shows selected country-specific targets compared with the actual share of
renewable energy in gross final energy consumption for the period from 2010 to 2013: (Source: Eurostat,
‘‘Share of renewable energy in gross final energy consumption’’)
Share of renewable energy in different countries (2010-2013) with EU targets for 2020 (in %)
35 %
34%*
30.8 30.9
30 %
25 %
20 %
15 %
32.1
32.6
23%*
20%*
18%*
14.3
17%*
15.4
15.0
12.5 12.9
11.4
12.1 12.4
16.7
14.2
11.2
10.5
10.4
13.6
12.8
12.1
10 %
5%
0%
European Union
Germany
Italy
2010
*
2011
France
2012
2013
Austria
30MAY201502262053
EU targets for 2020
This overview shows that there is a great need for further development and growth of the
renewable energy sector. The EU generated about 15% of its total energy consumption from renewable
energy in 2013 (compared to 14.3% in 2012). However, some EU member states, such as the United
Kingdom (5.1% in 2013), are still a long way off their target (15% in 2020).
3.
Germany
The upward trend enjoyed by the renewable energy industry in Germany continues apace.
According to preliminary figures published by the Arbeitsgemeinschaft Energiebilanzen e.V. (‘‘AEGB’’),
the 2014 share of renewable energy of the gross electricity generation was at approximately 27.8%
(2013: 25.4%). The share of photovoltaics in 2014 increased from 4.9% to 5.7%. Nuclear power’s share
accounted for 15.8% (2013: 15.4%) while coal-fired power stations share fell to 17.8% (2013: 19.2%) of
gross electricity generation in 2014. Lignite power stations the pre-eminent means of electricity
generation in the past remained at 25.4% (2013: 25.4%) in 2014. (Source: AEGB, ‘‘Stromerzeugung nach
Energieträgern 1990-2014’’) According to the Federal Ministry for Economic Affairs and Energy
(Bundesministerium für Wirtschaft und Energie – ‘‘BMWi’’) more electricity was generated for the first
time from renewable energy sources than from lignite power in Germany in 2014 and renewables were
therefore the most important energy source being used in Germany in 2014. (Source: BMWi,
‘‘Erneuerbare Energien im Jahr 2014’’)
The diagram below shows the progress in Germany from 1996 to 2012 and the minimum targets
set forth in the ‘‘Energy Concept’’ of the German Federal Government with respect to the share of
electricity generated from renewable sources as a portion of the gross domestic electricity consumption in
133
Germany: (Source: Fraunhofer ISE, ‘‘Recent Facts about Photovoltaics in Germany’’ dated January 7,
2015)
80%
65%
50%
2050
2040
2030
2020
23%**
2012
2005
20%
2011
2004
2010
2003
12%
2009
10%
2008
9%
16% 17%
14% 15%
2007
8%
2006
8%
2002
1998
7%
2001
1997
7%
2000
4%
5%
1999
4%
5%
1996
35%
30MAY201502261756
II.
PHOTOVOLTAICS
1.
Technological Background
Generally solar energy is a flexible energy technology. Solar power facilities can be constructed
as distributed generation (located at or near the point of use) or as a central-station.
Solar energy from the sun can be converted either into thermal or electrical energy with a variety
of fields of applications for diverse usage. There are several ways to utilize solar energy,
i.e., photovoltaics, solar heating & cooling, concentrating solar power, using mechanical or electrical
devices that convert the sun’s heat or light to another form of feasible energy. Furthermore, passive solar
systems are produced to collect, store, and distribute the heat energy from sunlight.
Photovoltaic systems use cells to convert solar radiation into electricity. The cell consists of
layers of a semi-conducting material. When light shines on the cell it creates an electric field across the
layers, causing electricity to flow. A photovoltaic system can also generate electricity on cloudy days. The
performance of a solar cell is measured in terms of efficiency at turning sunlight into electricity. A typical
commercial solar module has an efficiency of 16.5%—in other words, over one-sixth of the sunlight
striking the module is converted into electricity.
Two of the main photovoltaic technologies are crystalline silicon (monocrystalline or
polycrystalline) and a thin film. Crystalline silicon consists of thin slices cut from a single crystal of silicon
(monocrystalline) or of a block of silicon crystals (polycrystalline). According to the European Photovoltaic
Industry Association (‘‘EPIA’’) this technology represents about 87% of the current photovoltaic market.
Thin film is made by depositing extremely thin layers of photosensitive materials onto a low-cost backing
such as glass, stainless steel or plastic. Several other types of photovoltaic technologies are being
currently developed or are starting to be commercialized, e.g., concentrated photovoltaics or flexible
cells.
2.
Global Development
The data of the EPIA report, the source quoted for the information on the development of
photovoltaic energy below, relate to facilities with completed grid connection which is of greater relevance
for assessing the increasing share of photovoltaics in the total electricity mix (and expenditure in the form
of feed-in remuneration). At the end of 2009, the cumulative globally installed capacity of photovoltaic
facilities (i.e., photovoltaic facilities installed and connected to the grid) was more than 23 GW. Just one
year later, this had increased to 40.3 GW and by the end of 2011 the cumulative globally installed capacity
was 70.5 GW. At the end of 2012, photovoltaic parks installed worldwide had a cumulative capacity of
over 100 GW and by the end of 2013, almost 138.9 GW had been installed globally – resulting in an
annual electricity generation output of at least 160 TWh. This is sufficient energy to meet the annual
134
energy needs of approximately 45 million European households. (Source: EPIA, ‘‘Global Market Outlook
For Photovoltaics 2014-2018’’)
In an international comparison for the end of 2013, Europe was once again the leading global
region in terms of cumulative installed photovoltaic capacity, with 81.5 GW. This roughly accounts for
59% of the world’s cumulative photovoltaic capacity (compared to approximately 70% of global capacity
at the end of 2012 and 75% at the end of 2011). On the second place was the Asia-Pacific region (APAC)
including China (with 40.6 GW or 29%), followed by North, Middle and South America (together,
‘‘America’’) (with 13.7 GW or 10%). Many of the markets outside Europe—in particular China and the
United States—so far have only realized a small proportion of their potential. Many regions of the ‘‘sunbelt
region’’, such as Africa, the Middle East, South-East Asia and South America, have only just begun
expanding or developing the photovoltaic sector. Nevertheless, the cumulative installed capacity outside
Europe, which almost doubled from 30 GW at the end of 2012 to close to 60 GW at the end of 2013,
shows that other parts of the world are continuing to catch up with Europe. (Source: EPIA, ‘‘Global Market
Outlook For Photovoltaics 2014-2018’’)
The table below shows the development of the cumulative globally installed capacity of
photovoltaic facilities (in MW) for the end of the years 2011 to 2013: (Source: EPIA, ‘‘Global Market
Outlook For Photovoltaics 2014-2018’’)
Cumulative capacity (in MW) at the end of
2011
2012
2013
Region
Rest of the world ...........................................................
Middle East and Africa....................................................
China ...........................................................................
America (North, Middle and South America) .......................
Asia-Pacific region .........................................................
Europe .........................................................................
Total............................................................................
2,098
205
3,300
4,590
7,513
52,764
70,469
2,098
570
6,800
8,365
12,159
70,489
100,480
2,098
953
18,600
13,727
21,992
81,464
138,833
In 2013, new photovoltaic capacity installed worldwide amounted to about 38.4 GW (2012:
30 GW). China was the world’s largest photovoltaic market, with newly installed capacity totaling
11.8 GW, followed by Japan (6.9 GW) and the USA (4.8 GW). In the European market, Germany is still
the largest photovoltaic market, with newly installed capacity totalling 3.3 GW, followed by the UK
(1.5 GW) and Italy (1.4 GW). (Source: EPIA, ‘‘Global Market Outlook For Photovoltaics 2014-2018’’)
The table below shows the development of the annual newly installed global capacity of
photovoltaic facilities (in MW) for the years 2011 to 2013: (Source: EPIA, ‘‘Global Market Outlook For
Photovoltaics 2014-2018’’)
Newly installed capacity (in MW) in
2011
2012
2013
Region
Rest of the world ...........................................................
Middle East and Africa....................................................
China ...........................................................................
America (North, Middle and South America) .......................
Asia-Pacific region .........................................................
Europe .........................................................................
Total............................................................................
*
From 2012 on, this capacity data is incorporated directly in each region.
135
508
125
2,500
2,181
2,562
22,259
30,133
-*
365
3,500
3,774
4,646
17,726
30,011
-*
383
11,800
5,362
9,833
10,975
38,352
The diagram below shows the share of certain countries in the cumulative globally installed
capacity of photovoltaic facilities of approximately 139 GW at the end of 2013: (Source: EPIA, ‘‘Global
Market Outlook For Photovoltaics 2014-2018’’)
United Kingdom
2%
India
2%
Greece
2%
RoW
10%
Czech Republic
2%
Australia
2%
Germany
26%
Belgium
2%
France
3%
Spain
4%
Italy
13%
USA
9%
Japan
10%
China
13%
29MAY201516375238
According to the forecast by EPIA, the market trend for the next couple of years will depend, to a
great extent, on developments in Europe and on establishing durable new markets in emerging countries.
In EPIA’s ‘‘Low Scenario’’7, the global market could stay at between 35 GW and 39 GW of annual newly
installed capacity in the five coming years. In its ‘‘High Scenario’’8, EPIA expects that in 2014, the
European market expanded to around 13 GW of newly installed capacity, and will increase to about
17 GW of newly installed capacity in 2018. In this case, globally newly installed capacity is estimated to
increase to 68.6 GW by the end of 2018. Pursuant to EPIA the major share of photovoltaic installations in
the coming years is forecast to be in the Asia-Pacific region, including China. EPIA expects that in the
‘‘High Scenario’’, cumulative globally installed capacity of photovoltaic systems would amount to
430.3 GW at the end of 2018, compared to 138.8 GW at the end of 2013. (Source: EPIA, ‘‘Global Market
Outlook For Photovoltaics 2014-2018’’)
The table below represents the evolution of newly installed photovoltaic capacity according to the
two EPIA forecast scenarios per region in 2014 and in 2018: (Source: EPIA, ‘‘Global Market Outlook For
Photovoltaics 2014-2018’’)
Forecast by EPIA Region
‘‘Low Scenario’’ of newly
installed capacity in:
2014
2018
%
MW
%
MW
‘‘High Scenario’’ of newly
installed capacity in:
2014
2018
%
MW
%
MW
Middle East and Africa .................................
2
0.7
7
2.73
4
2.07 10
6.86
China......................................................... 36 12.63 32 12.48 31 16.05 29 19.90
America (North, Middle and South America) .... 14
4.91 18
7.02 15
7.77 19 13.03
Asia-Pacific region (APAC)............................ 28
9.83 22
8.58 25 12.95 17 11.66
Europe....................................................... 20
7.02 21
8.19 25 12.95 25 17.15
Total ......................................................... 100 35.092 100 39.010 100 51.785 100 68.605
3.
Europe
The European photovoltaic market has grown rapidly until 2011: from less than 1 GW in 2006, the
annual newly installed capacity increased to 13.7 GW in 2010 and 22.3 GW in 2011 (despite a weak
economic environment and varying levels of resistance to photovoltaics in some countries). Europe’s
7
EPIA’s ‘‘Low Scenario’’ assumes rather pessimistic market behavior with no major reinforcement or adequate replacement of
existing support mechanisms, or a strong decrease/limitation of existing schemes, or no adequate policies.
8
EPIA’s ‘‘High Scenario’’ assumes the continuation, adjustment or introduction of adequate support mechanisms, accompanied by
a strong political will to consider photovoltaic as a major power source in the coming years. Achieving this will also requires removing
unnecessary administrative barriers and streamlining grid connection procedures.
136
strong photovoltaic market progress until 2012 was the consequence of a few countries taking the lead for
several years in a row, with German policymakers in particular showing a constant commitment to
supporting the development of photovoltaic energy generation. However, the record growth rates of
2011, which were brought about by the rapid expansion of photovoltaic parks in Italy and the large
number of photovoltaic installations in Germany, could not be matched in 2012 and 2013, with newly
installed capacity decreasing to 17.7 GW in 2012 and further to almost 11.0 GW in 2013. The decline of
the German and Italian photovoltaic markets in 2013 was the main reason for the decrease of the total
European market to almost 11.0 GW. (Source: EPIA, ‘‘Global Market Outlook For Photovoltaics
2014-2018’’)
Cumulative European capacity increased to 81.5 GW at the end of 2013 (compared to 70.1 GW
at the end of 2012 and 52.8 GW at the end of 2011). This growth was mainly attributable to Germany and
Italy. (Source: EPIA, ‘‘Global Market Outlook For Photovoltaics 2014-2018’’)
The diagram below provides an overview of the shares (in percentage) per country of newly
installed capacity in Europe in 2013: (Source: EPIA, ‘‘Global Market Outlook For Photovoltaics
2014-2018’’)
Austria
2%
Denmark
2%
Belgium
2%
Ukraine
3%
Switzerland
3%
Netherlands
3%
Rest of Europe
3%
Germany
30%
France
6%
Greece
9%
Italy
13%
Romania
10%
United Kingdom
14%
29MAY201516374662
The table below shows the newly installed capacity (in MW) per country in Europe in 2012 and
2013: (Source: EPIA, ‘‘Global Market Outlook For Photovoltaics 2014-2018’’)
Newly installed capacity
in Europe (in MW)
2013
2012
Country
Germany .............................................................................................
United Kingdom ....................................................................................
Italy ....................................................................................................
Romania .............................................................................................
Greece................................................................................................
France ................................................................................................
Netherlands .........................................................................................
Switzerland ..........................................................................................
Ukraine ...............................................................................................
Austria ................................................................................................
Denmark .............................................................................................
Belgium...............................................................................................
Rest of Europe .....................................................................................
Total ..................................................................................................
137
3,304
1,546
1,448
1,100
1,043
613
305
300
290
250
216
215
340
10,970
7,604
925
3,759
46
912
1,115
195
226
130
175
316
683
1,540
17,626
4.
Germany
Although for the first time in years, the new photovoltaic installations in Germany decreased to
3.3 GW in 2013, after 7.6 GW in 2012 and 7.5 GW in 2011, Germany was still the top European
photovoltaic market. The cumulative installed capacity at the end of 2013 was 35.7 GW in Germany.
(Source: EPIA, ‘‘Global Market Outlook For Photovoltaics 2014-2018’’) According to the Fraunhofer
Institute for Solar Energy Systems ISE (‘‘Fraunhofer ISE’’), the substantial decline of newly installed
photovoltaic installations in Germany by 55% in 2013 compared to 2012 was a result of the significant
decrease in the feed-in tariff along with the increasing limitations on the construction of new photovoltaic
systems over the past few years. The feed-in tariff for photovoltaic energy which is set forth by the EEG
has been drastically reduced over the past years. It declined from approximately e0.50/kWh determined
by the EEG in 2008 to around e0.10/kWh according to the EEG 2014. In addition, since 2010 new
photovoltaic systems built on arable land have been excluded from the EEG feed-in tariff. And since
2012, newly installed photovoltaic parks with a capacity of more than 10 MW have been excluded from
the support under the EEG (see L.II. ‘‘Regulation—Regulatory Environment and Legal Framework in
Germany’’).
According to the AEGB, in 2014, electricity produced from photovoltaic parks had a share of
about 5.7% of Germany’s total gross electricity consumption. The German Solar Industry Association
(Bundesverband Solarwirtschaft – ‘‘BSW-Solar’’) further estimates that in 2014, round about 1.5 million
installed photovoltaic systems in Germany notionally met the annual electricity need of 10 million
households. (Source: BSW-Solar, Pressemitteilung ‘‘Rekordjahr für Solarstrom und Speicher’’ vom
08.01.2015)
The following overview shows the development and forecast for remuneration and electricity
price trends in Germany from 2000 to 2020. (Sources: B. Burger, Fraunhofer ISE, BMU, EEG 2013 and
BMWi Energiedaten in Fraunhofer ISE, ‘‘Photovoltaics Report’’ dated October 24, 2014)
29MAY201516375009
5.
Italy
Since the limit for the maximum installed photovoltaic capacity entitled to receive support through
feed-in tariffs set by the Italian government was reached in 2013 (also see L.III.2. ‘‘Regulation—
Regulatory Environment and Legal Framework in Italy—Incentives to Solar Facilities’’), the Italian market
experienced a substantial decline. In 2013, new photovoltaic installations with a capacity of 1.4 GW were
connected to the grid in Italy. This is a sharp decrease compared to 2012, when 3.6 GW of new capacity
was connected to the grid. During the major boom in 2011, a total of 9.45 GW of new capacity was
installed. Despite the recent decline, the level of new photovoltaic installations in Italy in 2013 still remains
the third highest in Europe after Germany and the UK. The cumulative installed capacity in Italy at the end
of 2013 was 17.93 GW. (Source: EPIA, ‘‘Global Market Outlook For Photovoltaics 2014-2018’’)
138
6.
France
By the end of 2013, the cumulative photovoltaic capacity in France reached almost 4.7 GW.
However, due to political uncertainties in France, caused by an abrupt decision by the French
government to suspend the photovoltaic feed-in tariffs introduced in August 2010, the newly installed
capacity constantly decreased from 1,777 MW in 2011 to 1,115 MW in 2012 and to 613 MW at the end of
2013. (Source: Holman, Fenwick, Willan, ‘‘Solar Energy in France’’) Despite the 2013 government
confirmation to permit 1 GW of newly installed capacity every year, there are significant constraints on
market development according to EPIA. (Source: EPIA, ‘‘Global Market Outlook For Photovoltaics
2014-2018’’) For the prevailing regulatory development in France, see L.IV. ‘‘Regulation—Regulatory
Environment and Legal Framework in France’’.
III.
WIND ENERGY
1.
Technological Background
Renewable energy generated by wind facilities refers to the extraction of kinetic energy from the
wind and conversion of it into a useful type of energy, e.g., thermal, mechanical, or electrical. This can be
achieved through the use of wind facilities to generate electricity, windmills for mechanical power or
windpumps for water pumping. Small wind facilities are used to provide electricity to isolated locations
and utility companies increasingly buy back surplus electricity produced by small domestic wind facilities.
A large wind park may consist of numerous individual wind facilities which are connected to the grid
system and can be located either on-shore or off-shore. According to the Bundesverband WindEnergie
(‘‘BWE’’), the power generation costs are currently lower than those of new fossil-fuelled power parks due
to the ongoing technological development of wind facilities.
2.
Global Development
The year 2014 was a record year for the global wind industry as annual installations crossed the
50 GW mark for the first time. More than 51 GW of new wind energy capacity (on-shore and off-shore)
was newly installed globally, after a slowdown (35.6 GW) in 2013. The new cumulative globally installed
capacity at the end of 2014 was 369,597 MW, representing a 44% increase compared to the end of 2013.
Since 2009, China has been the largest overall market for wind energy. In 2014, China added more than
23 GW of new capacity, a significant gain compared to 2013, when 16.1 GW of new capacity had been
installed. According to the Global Wind Energy Council (‘‘GWEC’’), China intends to install an additional
100 GW by the end of 2019, exceeding the country’s 200 GW target for 2020. In 2014, the United States
installed 4,854 MW of new capacity, which is over four times more than in 2013. The United States is the
second largest wind energy market in terms of total installed capacity after China today. At the end of
2014, the United States were home to over 65 GW of installed wind power capacity.
Looking ahead, the picture is complex across various regions as reported by GWEC. Europe’s
framework legislation and its 2020 targets ensure a degree of stability, but weakened legislative
frameworks, the economic crisis and austerity measures implemented across Europe are hitting the wind
industry. According to GWEC, the long term prospects for the wind industry are closely linked to the
outcome of the debate over the EU’s targets for climated energy. The slowdown in Asia in 2012-2013 was
a result of a combination of factors, but these conditions are expected to be short-lived, and pursuant to
GWEC, Asian dominance of global wind markets is expected to continue in the next four to five years. The
United States, Canada, Brazil and Mexico are expected to have had strong years in 2015 because of
amended regulations or market reforms for the electricity sectors. (Source: GWEC, ‘‘Global Wind Report
Annual Market Update 2014’’)
139
The diagram below shows the share (in percentage) per country of the cumulative globally
installed wind energy capacity (on-shore and off-shore) at the end of 2014: (Source: GWEC, ‘‘Global
Wind Report Annual Market Update 2014’’)
Rest of the World
15.8%
Brazil
1.6%
Italy
2.3%
PR China
31.0%
France
2.5%
Canada
2.6%
UK
3.4%
USA
17.8%
India
6.1%
Spain
6.2%
Germany
10.6%
29MAY201516375613
The table below shows the cumulative installed wind energy capacity (in MW) and the share in
the cumulative globally installed capacity (as a percentage) at the end of 2014 for the top ten countries
and the rest of the world (on-shore and off-shore facilities): (Source: GWEC, ‘‘Global Wind Report Annual
Market Update 2014’’)
Cumulative
capacity at the
end of 2014
in MW
in %
Country/Region
PR China..................................................................................................
USA.........................................................................................................
Germany ..................................................................................................
Spain .......................................................................................................
India ........................................................................................................
United Kingdom .........................................................................................
Canada ....................................................................................................
France .....................................................................................................
Italy .........................................................................................................
Brazil .......................................................................................................
Rest of the world .......................................................................................
Total Top 10 ............................................................................................
World total...............................................................................................
140
114,609
65,879
39,165
22,987
22,465
12,440
9,694
9,285
8,663
5,939
58,473
311,124
369,597
31.0
17.8
10.6
6.2
6.1
3.4
2.6
2.5
2.3
1.6
15.8
84.2
100.0
The diagram below shows the newly installed capacity of wind energy facilities (on-shore and
off-shore) for 2014 by country as a percentage of the globally newly installed capacity: (Source: GWEC,
‘‘Global Wind Report Annual Market Update 2014’’)
Turkey
1.6%
France
2.0%
Rest of the World
13.3%
Sweden
2.0%
UK
3.4%
Canada
3.6%
PR China
45.1%
India
4.5%
Brazil
4.8%
USA
9.4%
Germany
10.2%
29MAY201516375489
The table below shows the newly installed capacity of wind energy facilities (on-shore and
off-shore), both in MW and as a percentage of the globally newly installed capacity for 2014 for the top ten
countries and the rest of the world: (Source: GWEC, ‘‘Global Wind Report Annual Market Update 2014’’)
Newly installed
capacity in 2014
in MW
in %
Country/Region
PR China ...................................................................................................
Germany ....................................................................................................
USA ..........................................................................................................
Brazil .........................................................................................................
India ..........................................................................................................
Canada ......................................................................................................
United Kingdom...........................................................................................
Sweden .....................................................................................................
France .......................................................................................................
Turkey .......................................................................................................
Rest of the world .........................................................................................
Total Top 10 ..............................................................................................
World total ................................................................................................
3.
23,196
5,279
4,854
2,472
2,315
1,871
1,736
1,050
1,042
804
6,852
44,620
51,473
45.1
10.2
9.4
4.8
4.5
3.6
3.4
2.0
2.0
1.6
13.3
87
100.0
Europe
The European Heads of State have set a binding renewable energy EU-wide objective of at least
27% in the context of the 2030 Climate and Energy package (see L.I. ‘‘Regulation—Regulatory
Environment and Legal Framework in Europe’’). According to GWEC, they have decided to move away
from binding national targets, which means the EU objective will have to be delivered by a new
governance system. Detailed proposals on the implementation of the 2030 package are expected before
the end of 2015. (Source: GWEC, ‘‘Global Wind Report Annual Market Update 2014’’)
From the end of 2013 to the end of 2014, the cumulative installed capacity of wind parks in the EU
(on-shore and off-shore) increased from 117.3 GW to 128.8 GW. During 2014, 11,829 MW of wind power
was newly installed in the EU, of which 11,375 MW was on-shore and 1,483 MW was off-shore. This
increase of newly installed capacity represented a growth rate of 3.8% compared to 2013. The wind
energy capacity installed in the EU at the end of 2014 would in an average wind year produce 284 TWh of
electricity, which is enough to cover 10.2% of the EU’s total electricity consumption in 2014, up from 8% at
the end of 2013 and 7% at the end of 2012. (Source: GWEC, ‘‘Global Wind Report Annual Market Update
2014’’)
141
The long-term prospects for the wind industry are closely linked to the outcome of the debate over
the EU’s 2030 targets for climate and energy. (Source: GWEC, ‘‘Global Wind Report Annual Market
Update 2014’’)
4.
Germany
In 2014, the German wind power industry had an exceptional year. According to recent surveys
conducted by GWEC, in 2014, 1,908 (2013: 1,141) new wind parks (on-shore and off-shore) were
installed with a total capacity of 5,279 MW (2013: 3,238 MW). In 2014, the total capacity of wind energy
installations of about 39,165 MW in Germany was subdivided in 38,116 MW on-shore capacities and
1,049 MW off-shore capacities. (Sources: GWEC, ‘‘Global Wind Report Annual Market Update 2013’’ /
GWEC, ‘‘Global Wind Report Annual Market Update 2014’’)
The table below provides an overview of the German wind energy market for the years 2013 and
2014, also as to the split between on-shore and off-shore facilities: (Sources: GWEC, ‘‘Global Wind
Report Annual Market Update 2014’’ / Fraunhofer IWES, ‘‘Windenergie Report Deutschland 2013’’ /
BMWi, ‘‘Erneuerbare Energien im Jahr 2014’’)
Area
2014
Number of parks (at the end of the year) .......................................
of which on-shore facilities .......................................................
of which off-shore facilities .......................................................
Newly constructed parks (during the year) .....................................
of which on-shore facilities .......................................................
of which off-shore facilities .......................................................
Electricity generated by wind energy on-shore parks (during the
year) .....................................................................................
Share of gross electricity generation (during the year) .....................
Electricity generated by wind energy off-shore parks (during the
year) .....................................................................................
Share of gross electricity generation (during the year) .....................
2013
25,125
24,867
258
1,908
1,766
142
24,124
24,008
116
1,141
1,093
48
54,660 GWh
9.4%
50,803 GWh
8.5%
1,310 GWh
0.2%
905 GWh
0.2%
In 2014, wind turbine generators were erected for the first time in all 16 states in Germany.
According to Deutsche WindGuard, at the end of 2014, among the German federal states, SchleswigHolstein (1,303 MW added capacity, 455 new on-shore wind energy facilities) and Lower Saxony
(627 MW added capacity, 227 new on-shore wind energy facilities) occupied the top positions, followed
by Brandenburg (498 MW added capacity, 196 new on-shore wind energy facilities) and RhinelandPalatinate (462.7 MW added capacity, 168 new on-shore wind energy facilities). With just 18.6 MW added
capacity and 8 on-shore wind facilities, Baden-Württemberg was still lagging behind. (Source: Deutsche
WindGuard, ‘‘Status of Land-based Wind Energy Development in Germany Year 2014’’)
The surveys of manufacturers conducted by Deutsche WindGuard also extended to the
configuration of the newly connected facilities, revealing among other things significant nationwide
variations in wind turbine heights. Facilities in Schleswig-Holstein are by far the smallest, with average
hub heights of 88 meters, whereas the average hub height in Rhineland-Palatinate and Berlin is
138 meters. (Source: Deutsche WindGuard, ‘‘Status of Land-based Wind Energy Development in
Germany Year 2014’’)
142
The table below provides an overview of some key statistics regarding the wind energy sector in
Germany for 2013 and 2014: (Sources: IEA, ‘‘Wind 2013 Annual Report’’ / GWEC, ‘‘Global Wind Report
Annual Market Update 2014’’)
Statistical information
Measure (as indicated)
Total installed wind capacity (at the end of 2014) .............
39,165 MW
New wind capacity installed (in 2014) .............................
5,279 MW
Total installed wind capacity (at the end of 2013) .............
34,250 MW
New wind capacity installed (in 2013) .............................
3,238 MW
Total electrical output from wind (in 2013) .......................
53.4 TWh
Wind generation as % of national electricity demand (in
2013) .....................................................................
8.9%
Average capacity factor (in 2013)...................................
18.5%
Germany’s target......................................................... 35% share of electricity generation from
renewables by 2020 and 80% by 2050
5.
Austria
In 2014, 411 MW new wind energy capacity was installed in Austria corresponding to an increase
by 25% compared to 2013. This led to a cumulative capacity of 2,055 MW by the end of 2014. By the end
of 2013 nearly 1,700 MW of wind energy were operating in Austria for an annual electricity production of
around 3.6 TWh. Due to the natural conditions–hydropower, biomass, and a high wind energy
potential–Austria is among the global leaders in respect of its nearly 70% of renewable energy in its
electricity mix according to the IEA. After the launch of the Austrian Green Electricity Act
(Ökostromgesetz — ‘‘GEA’’), the wind energy market experienced a significant expansion in 2012 and
2013. In both years the wind energy increased by around 300 MW. The stated target established by the
GEA is to add 2,000 MW of on-shore wind energy to the existing on-shore capacity of 1,011 MW in 2010
by 2020. Determined by an ordinance of the Minister for Economic Affairs the feed-in tariff in Austria is
fixed at 0.0935 EUR/kWh for 2014 and 0.0927 EUR/kWh for 2015. Regarding a report by the IEA most of
the wind facilities are installed in Lower Austria (796.7 MW), followed by Burgenland (770.4 MW), Styria
(82.6 MW), Upper Austria (26.4 MW), Vienna (7.4 MW) and Carinthia (0.5 MW). Burgenland reached its
goal and currently generated enough electricity from wind energy to cover more than the overall annual
energy usage of the state.
The table below provides an overview of some key statistics regarding wind energy sector in
Austria for 2013 and 2014: (Sources: IEA, ‘‘Wind 2013 Annual Report’’ / GWEC, ‘‘Global Wind Report
Annual Market Update 2014’’)
Statistical information
Measure (as indicated)
Total installed wind capacity (at the end of 2014) .......................................
New wind capacity installed (in 2014) .......................................................
Total installed wind capacity (at the end of 2013) .......................................
New wind capacity installed (in 2013) .......................................................
Total electrical output from wind (in 2013) .................................................
Wind generation as % of national electricity demand (in 2013) .....................
Average capacity factor (in 2013) .............................................................
Wind generation goals from Austria’s Renewable Energy Action Plan
(NREAP) according to the EU Directive 2009/28/EC ................................
Austria’s wind generation target according to GEA......................................
6.
2,095 MW
411 MW
1,684 MW
309 MW
3.6 TWh
5.8%
24%
2,578 MW by 2020
3,000 MW by 2020
France
France’s cumulative installed wind capacity is growing steadily and has reached 9,285 MW at the
end of 2014. France has the fourth largest cumulative installed wind energy capacity in Europe. The wind
resource in France is well distributed across the whole country. According to GWEC, France has the
second largest wind potential in Europe. The government has set a target of 25 GW of wind power,
including 6 GW of off-shore facilities. By 2020 France is required to meet 23% of final energy demand with
renewable energy sources as part of its obligation under the EU renewable directive. At the end of 2013,
4,200 operating on-shore wind facilities spread across the country bringing the total installed capacity up
143
to 8,254 MW, of which 631 MW of new wind energy was connected to the grid in 2013. At the end of 2013
wind energy accounted 3.3% of the total national electricity consumption. According to a report by
GWEC, the level of the feed-in tariff in France is e0.082/kWh for on-shore installations for the first ten
years of operation, and then adjusted for the following five years to between e0.028 to e0.082/kWh
depending on the actual wind conditions and corresponding performance of the facilities.
The table below provides an overview of some key statistics regarding wind energy sector in France
for 2013 and 2014: (Sources: GWEC, ‘‘Global Wind Report Annual Market Update 2013’’ / GWEC, ‘‘Global
Wind Report Annual Market Update 2014’’)
Statistical information
Measure (as indicated)
Total installed wind capacity (at the end of 2014) .......................................
New wind capacity installed (in 2014) .......................................................
Total installed wind capacity (at the end of 2013) .......................................
New wind capacity installed (in 2013) .......................................................
Total electrical output from wind (in 2013) .................................................
Wind generation as % of national electricity demand (in 2013) .....................
Average capacity factor (in 2013) .............................................................
France’s target ......................................................................................
7.
9,285 MW
1,042 MW
8,254 MW
631 MW
15.9 TWh
n.a.
n.a.
25 GW in 2020
Finland
Finland has already a considerable share of renewable energy in its electricity mix. At the end of
2014 Finland reached a cumulative wind energy capacity of 627 MW. In 2014, Finland installed 184 MW
new wind energy capacity. In 2013, 29% of its electricity consumption was provided by renewable energy
subdivided in hydro power (15%), biomass (13%) and wind energy (1%). The target is to establish
2,500 MW of wind energy by 2020, which corresponds to 6-7% of the total electricity consumption of the
country. The target for renewable energy sources (‘‘RES’’) in Finland is 38% of final energy consumption
by RES. In 2013, Finland added 192 MW of wind energy capacity compared to 57 MW installed in 2012,
reaching a total of 448 MW at the end of 2013. In 2013, the total capacity of wind energy installations was
subdivided in 422 MW on-shore installations and 26 MW off-shore installations. Furthermore, according
to the IEA, there were 8,000 MW of wind power projects in various phases of on-shore projects and
3,000 MW of announced off-shore projects already at the beginning of 2013. In 2013, there were 60 new
wind facilities installed in eight wind parks and two single facilities. At the end of 2013, there were a total of
210 wind facilities in Finland. The parks are located either near land or on land, usually on forested areas
at higher elevations.
The table below provides an overview of some key statistics regarding wind energy sector in
Finland for 2013 and 2014: (Sources: IEA, ‘‘Wind 2013 Annual Report’’ / EWEA, ‘‘Wind in
power–2014 European statistics, dated February 2015’’)
Statistical information
Measure (as indicated)
Total installed wind capacity (at the end of 2014) ........................
New wind capacity installed (in 2014) ........................................
Total installed wind capacity (at the end of 2013) ........................
New wind capacity installed (in 2013)* .......................................
Total electrical output from wind (in 2013) ..................................
Wind generation as % of national electricity demand (in 2013) ......
Average capacity factor (in 2013)..............................................
Finland’s wind generation target ...............................................
*
IV.
627 MW
184 MW
448 MW
192 MW
0.77 TWh
0.9%
26%
6 TWh/yr (2,500 MW) in 2020;
9TWh/yr in 2025
Net increase was 190 MW, because 2 MW were removed.
COMPETITION
AND
COMPETITIVE POSITION
OF THE
CHORUS GROUP
The business of CHORUS is exposed to competition from internationally operating companies in
the countries in which it is active. The Issuer considers itself to be one of the leading independent power
producers and full-service asset managers regarding the renewable energy sector, based on the
information published by competitors and on its own market assessment in relation to the markets
144
covered. In the Issuer’s assessment, its main competitors in the field of investing in and operating
renewable energy facilities come from the insurance sector (predominantly in major projects with large
MW volumes), institutional funds and professional investors (such as pension funds) focusing on
renewable energy investments in Europe. In the on-shore wind energy sector, the Issuer also considers
energy suppliers and municipal utilities to be among its competitors.
Specifically, the Issuer considers the following companies to be among its primary competitors:
Capital Stage AG competes with the CHORUS Group with respect to new investments in
renewable energy projects in Germany, Italy and France and also in the area of asset management
services.
In terms of investments in wind energy facilities, the Issuer considers its competitors to also
comprise municipal utility companies or large energy suppliers and utility groups, such as Stadtwerke
München GmbH, E.ON SE or EnBW Energie Baden-Württemberg AG.
As to competition for the acquisition of renewable energy assets generally, the Issuer
furthermore considers institutional funds and institutional investors such as Luxcara GmbH, SUSI
Partners AG and CEE Management GmbH and closed-end funds such as KGAL GmbH & Co. KG to be
its competitors.
145
L.
REGULATION
CHORUS’ business is highly regulated and dependent on the applicable regulatory framework in
all countries where the CHORUS Group currently operates. Government incentives are of particular
importance for energy generation from renewable energy sources and, therefore, for CHORUS’ financial
condition.
I.
REGULATORY ENVIRONMENT
AND
LEGAL FRAMEWORK
IN
EUROPE
In order to comply with the commitments made by the EU under the Kyoto Protocol in 1997 on the
reduction of greenhouse gas emissions and to contribute to the substantial increase in the percentage of
renewable energy sources used in power supply, in 2007, the EU member states declared the target of
(i) reducing greenhouse gases by at least 20% compared to the year 1990, (ii) improving the EU’s energy
efficiencies by 20% and (iii) increasing the share of renewable energy in total EU energy consumption to
20% by 2020 (so-called ‘‘20-20-20’’ goal).
In addition, in 2001, the EU issued the Directive 2001/77 EC on the promotion of electricity from
renewable energy sources in the internal electricity market (the ‘‘Renewable Energy Directive 2001’’). It
aims at promoting the increase in the contribution of renewable energy sources to electricity production
by requesting the EU member states to take appropriate steps to achieve the agreed targets. Further
details as to how to achieve the targets are left to the discretion of the member states.
The Renewable Energy Directive 2001 was replaced by Directive 2009/28/EC (the ‘‘Renewable
Energy Directive 2009’’), which defines mandatory overall targets per member state regarding the share
of energy from renewable sources to be reached by 2020. Additionally, the EU member states are
obligated to establish national action plans which define the share of energy from renewable sources
consumed in transport and in the production of electricity and heating for 2020. Apart from that, the
Renewable Energy Directive 2009 does not provide for concrete measures how to achieve the target but
leaves it to the discretion of the EU member states.
The current energy policy of the EU is particularly reflected in a roadmap for moving to a
competitive low-carbon economy in 2050 issued by the European Commission in March 2011. This forms
part of the long-term policy plans put forward under the Resource Efficient Europe Flagship Initiative
intended to put the EU on course to using resources in a sustainable way. The roadmap proposes to set
out a cost-effective pathway for achieving intense emission cuts by the middle of the century. In order to
keep the global warming below 2⬚C, it suggests that by 2050, the EU should cut its emissions to
80% below 1990 levels through domestic reductions. It also shows how the main sectors responsible for
Europe’s emissions—power generation, industry, transport, buildings and construction, as well as
agriculture—can make the transition to a low-carbon economy most cost-effectively.
In addition, at the EU summit on climate policy which took place in Brussels in October 2014, the
EU member states agreed on the following targets to be reached by 2030: (i) a binding 40% greenhouse
gas emissions reduction compared to 1990, (ii) the indicative target at the EU level of at least 27% for
improving energy efficiency; (iii) the increasing of the share of renewable energy to at least 27% of the
EU’s energy consumption.
In order to reach those objectives, most member states provide for governmental incentives for
renewable energy facilities, such as fixed feed-in tariffs for electricity generated from renewable sources
associated with the obligation of grid operators to purchase the electricity and feed it into the grid. Other
incentives offered by EU member states are so-called quotas (‘‘green certificates’’) that grid operators
have to purchase at the market price, low-interest loans, or tax advantages.
II.
REGULATORY ENVIRONMENT
1.
Promotion of Renewable Energy Sources
AND
LEGAL FRAMEWORK
IN
GERMANY
The EEG, as last amended on August 1, 2014, is the main regulatory framework to promote
renewable energy in Germany. The EEG 2014 replaced the EEG 2012 in order to (i) adjust expansion
targets and binding tariffs, (ii) promote direct marketing of electricity, (iii) introduce tendering as a tool for
determining the price for renewable electricity for solar parks on open space, and (iv) align provisions
regarding the energy surcharge with the EU guidelines on state aid for environmental protection and
146
energy. Part of the provisions of the EEG 2012 or former laws on feed-in tariffs may remain applicable for
renewable energy facilities that were put into operation before the entering into force of the EEG 2014.
This depends on the detailed grandfathering rules which are set forth in the EEG 2014.
Pursuant to the EEG 2014, Germany aims to constantly and cost-effectively increase the share of
renewable energy sources in electricity supply to at least 80% in 2050. This is of particular importance,
since, as a consequence of the nuclear accident in Fukushima in Japan, the German government
decided in 2011 to withdraw from the generation of nuclear power by the end of 2022. Therefore,
renewable energy sources will have to compensate nuclear power as energy source to a certain extent
and will increase in importance with respect to securing energy supply in Germany.
The aforementioned goals shall be achieved through the introduction and definition of so-called
‘‘expansion corridors’’ in the law, which provide detailed target figures on the planned increase of installed
capacity for different renewable energy sources.
The expansion corridor targets for onshore wind power and solar power provide for an annual
growth of 2,400 MW to 2,600 MW each, while decommissioned capacity is taken into account only with
respect to onshore wind power.
Like most EU member states, the German government initially promoted renewable energy
sources by granting certain feed-in tariffs as an above-market payment to the producer of energy
generated from renewable sources (‘‘Tariff System’’). Apart from the obligation to pay a guaranteed price
for a fixed period of time of 20 years as of the end of the year in which the respective facility commenced
operation, the grid operator is subject to a statutory obligation to grant priority grid access to facilities that
generate electricity from renewable energy sources and to feed their electricity into its grid. Regarding
solar energy, only operators of facilities that are erected on areas designated for such purpose or, inter
alia, that are located next to motorways, railways or on sealed surfaces, industrial areas or on rooftops or
other building structures are eligible for the Tariff System.
The fixed above-market tariffs that have to be paid by the grid operator under the Tariff System
are passed on to the final consumer through the so-called energy surcharge. Apart from some
exemptions and transitional provisions relating to the former law, the energy surcharge has to be fully
paid by all consumers of electricity. The main exemption refers to certain energy intensive industries
which may seek for a reduction of the energy surcharge payable in case of use of electricity of more than
1 GWh per year. Contrary to the EEG 2012, renewable energy facilities that use their own electricity now
have to pay a certain percentage of the energy surcharge as well, which will increase every year.
In order to evaluate whether this surcharge and, in particular, the exemptions under the
EEG 2012 constitute a forbidden state aid, the EU Commission initiated an in-depth investigation in
December 2013. In November 2014, the EU Commission announced that the German law generally was
in line with the European state aid rules. Additionally, the EU Commission approved the changes to the
energy surcharge established by the EEG 2014.
2.
Feed-in Tariff System
The amount of the fixed feed-in tariff applicable for the generated electricity depends on the
version of the EEG applicable at the time of the commencement of the operation of the facility.
Regarding solar power facilities which were erected on open space, the feed-in tariffs have been
constantly reduced over the years. While the basic tariff amounted to 31.94 Cents per kWh under the
EEG applicable from 2009, it decreased to 21.11 Cents per kWh in May 2011 (for certain solar facilities to
22.07 Cents per kWh), and 13.50 Cents per kWh in April 2012, always subject to degression (as
explained below). Under the EEG 2014, the basic tariff decreased to 9.23 Cents per kWh, and since the
enactment of the EEG 2012, only electricity generated by solar facilities up to an installed capacity of a
maximum 10 MW has been eligible. In this context ‘‘installed capacity’’ includes solar facilities of the same
operator or of third parties that entered into operation within the preceding 24 months if facilities of such
operator are located in an area of 2 km in the same municipality. Therefore, new solar facilities of an
operator may not be eligible for feed-in tariffs due to additional installed capacity of third parties.
147
Regarding electricity generated by onshore wind parks, the basic fixed tariff amounted to
5.02 Cents per kWh under the EEG that was in force until December 31, 2011. However, an increased
tariff of 9.2 Cents per kWh was granted for the first five years of operation (Anfangswert) relating to a
defined reference yield (Referenzertrag) of 150%. The reference yield (Referenzertrag) is a calculated
electricity yield for a specific reference facility type at a certain reference location and with a certain
reference hub height for a period of five years. Depending on the amount by which the yield falls short of
the relevant reference yield, the period of the increased tariff will be extended in increments of two months
up to a maximum of 20 years. The tariffs were adjusted to a basic tariff of 4.87 Cents per kWh and an
increased tariff of 8.93 Cents per kWh under the EEG 2012. And under the EEG 2014, the basic tariff was
adjusted to 4.95 Cents per kWh and the increased tariff was fixed at 8.90 Cents per kWh. Furthermore,
the reference yield against which the actual yield of a facility is measured was decreased to 130%.
3.
Period of Financial Support and Degression
The fixed base feed-in tariff applicable to a facility is guaranteed for a fixed period of 20 calendar
years plus the year in which the operations start. However, the amount of the fixed base feed-in tariff
applicable to a facility depends on the time the facility commences its operations. As the fixed base
feed-in tariff is subject to a flexible degression, the amount of the applicable tariff to be paid per kWh of
fed-in electricity from renewable sources decreases constantly, which has the effect that renewable
energy facilities which become operational at a later point in time only benefit from a decreased or lower
feed-in tariff compared to facilities which started their operations earlier. This ‘‘degression’’ does not
mean that once a certain feed-in tariff has become applicable to a renewable energy facility it will
decrease over time; under the version of the EEG currently applicable to the respective facility, a feed-in
tariff once applicable remains unchanged.
The tariff for solar power decreases monthly by 0.5% compared to the month before as from
September 2014 as published monthly by the Federal Network Agency (Bundesnetzagentur). The
degression for onshore wind power amounts to 0.4% per quarter in comparison to the tariff applicable in
the previous quarter as from January 2016. Once the target capacity as set out by the expansion corridors
is reached, the degression will be increased gradually (to up to 2.8% for solar power per month and 1.2%
for wind power per quarter). In case the newly installed capacity is lower than the defined corridor target,
the degression will be decreased or suspended. In case the capacity expansion of wind or solar energy is
above the respective targeted corridor, the tariffs will decrease at a higher level (and thereby faster).
4.
Registration Obligation
According to the EEG 2014, for easier calculation, better planning and better integration of the
renewable energy sources, operators have to register their renewable energy facility (reference data,
e.g., location, energy source, capacity etc.) in the plant register of the German Federal Network Agency
(Bundesnetzagentur) and keep the data up-to-date. No feed-in tariff is paid if and as long as the
registration obligation is violated.
5.
Direct Marketing of Electricity from Renewable Sources through Market Premium Model
As a major development, the EEG 2014 made direct marketing of electricity generated from
renewable energy facilities with a capacity above 500 kW (from 2016 on for all facilities with a capacity
above 100 kW) and that became operational after the entering into force of the amendment act in August
2014 compulsory (‘‘Direct Marketing System’’). Under the EEG 2012, such direct marketing was not
mandatory but could be used by operators on a voluntary basis. With respect to renewable energy
facilities that commenced operating after August 1, 2014, the Tariff System will only be applicable by way
of exemption, inter alia, for facilities with a capacity below 500 kW until 2016, or if direct marketing is not
possible (e.g., in case of insolvency of the direct marketer). The operator of such a facility may decide to
temporarily switch to the Tariff System as of the beginning of the following month. However, in case of
impossibility of direct marketing this will result in a reduction of the applicable feed-in tariff by 20%.
Direct marketing is a model outside of the promotion through guaranteed feed-in tariffs under the
EEG. Other than selling the electricity to the nearest grid operator like under the Tariff System, under the
Direct Marketing System the operator channels its electricity ‘‘unpromoted’’ through the public grid and
sells it based on energy supply agreements to intermediaries (which purchase the electricity to sell it on)
or directly at the electricity power exchange. Provided the facilities can be controlled remotely by the grid
operator, the operator of the facility receives, in addition to the sales price for its sold electricity and as part
148
of the Direct Marketing System, a payment of a so-called ‘‘market premium’’ from the grid operator, the
amount of which is calculated on a monthly basis applying a calculation method set forth in detail in the
EEG 2014. The required ability to remotely control the facility shall allow the grid operator to obtain actual
feed-in information and to remotely reduce the electricity which is fed into the grid in case of over-supply
of electricity produced by renewable energy facilities. The market premium aims at balancing the
difference between the feed-in tariff and the average monthly market price obtained for the electricity at
the electricity power exchange. Together with the average monthly market price value (Monatsmarktwert)
of the electricity, which is calculated within the first ten business days of a month for the month before, and
less the direct marketing costs it is intended to equal the feed-in tariff which would be applicable without
the Direct Marketing System. The Direct Marketing System shall lead to a more market-oriented
operation of the renewable energy facilities by making the overall price to be received under the Direct
Marketing System more variable than the prices received under the Tariff System: In times of high
demand for electricity (and, therefore, high market prices), operators shall be incentivized to feed in their
electricity. In this case, the overall price received may be above the monthly market value
(Monatsmarktwert) leading to higher remuneration in comparison to the Tariff System. If the electricity is
sold in times of low demand at low market prices, the overall price received for such electricity will be
below the remuneration that would be received under the Tariff System.
Under the EEG 2009 and the EEG 2012, the market premium payable also included a fixed
management premium set forth in a specific management premium regulation, which served to
compensate the facility operators’ additional efforts and risks related to the direct marketing, such as the
admission to listing, additional personnel, and the preparation of feed-in forecasts. In the course of the
amendment of the EEG in 2014, the management premium regulation has been repealed and, therefore,
the management premium no longer forms a part of the payable market premium with respect to facilities
under the EEG 2014. To facilities under the former law, the management premium remains applicable.
At the date of this Prospectus, most of the electricity produced by CHORUS’ power facilities is
sold by way of voluntary direct marketing already. For all new facilities erected under the EEG 2014, direct
marketing will be compulsory for CHORUS.
For purposes of the Direct Marketing System, the companies which operate the solar or wind
park enter into energy supply agreements on the electricity generated with direct marketing
intermediaries such as energy trading companies from utilities, which in turn sell the produced energy on
the market. On average, these agreements have a term of 1 to 2 years. Under such direct marketing
agreements, the intermediary purchases the total amount of energy which is fed by the relevant operating
company into the grid of the network operator to which it is connected. The intermediary assumes the
registration of the energy deliveries of the operating company with the relevant grid operator on behalf of
the operating company and the allocation of the energy generated by the operating company to a
separate accounting grid. In addition, the intermediary deducts a certain fee for its services from the
market premium. The agreements with the direct marketing intermediary further provide for termination
rights for cause of the operating company or the intermediary, with such termination, however, only
becoming effective once the deregistration of the intermediary as direct marketer of the operating
company’s produced energy with the local grid operator has become effective and the operating
company’s ability to do direct marketing in accordance with statutory provisions has been re-established
with the relevant grid operator or another intermediary.
6.
Tender Process to Determine Price of Renewable Energy
The EEG 2014 establishes tendering as the main tool in the future for determining the price for
renewable energy from non-integrated solar power. Details for the tendering procedure are not provided
by the EEG 2014 but have to be determined through further regulations. In January 2015, the Federal
Ministry of Economic Affairs and Energy (Bundesministerium für Wirtschaft und Energie) enacted the
Regulation on the tendering of financial support for non-integrated solar facilities (Verordnung zur
Ausschreibung der finanziellen Förderung für Freiflächenanlagen – ‘‘FFAV’’). Pursuant to the FFAV, the
capacity to be tendered amount to 150 MW in April and in August 2015, 200 MW in December 2015,
125 MW in April and August 2016, 150 MW in December 2016 and 100 MW in April, August and
December 2017.
Based on the experience gained from the tendering of the solar power capacity, the government
intends to further establish tendering processes for all other renewable energy sources by 2017 at the
149
latest. Therefore, an additional amendment of the EEG 2014 will be necessary. End of April 2014, the
Federal Network Agency (Bundesnetzagentur) published the results of the first completed tendering
process regarding a solar park.
7.
Further Promotion in the Field of Renewable Energy
Apart from the regulatory environment relating to prices of electricity generated from renewable
sources, there are various further schemes promoting renewable energy. For example, the Kreditanstalt
für Wiederaufbau (‘‘KfW’’), a promotional bank under the ownership of the Federal Republic of Germany
and the German federal states (Länder), backs the project financing provided by the financing bank for
projects related to renewable energy generation through various low-interest loans to refinance the
financing bank.
8.
Regulatory Framework for Construction and Operation of Solar Parks and Wind Parks
The erection of solar facilities is subject to the German Building Code (Baugesetzbuch –
‘‘BauGB’’) and the state building act (Landesbauordnung) of the state (Land), where the solar facility is
built. The erection of a solar facility usually requires a building permit (Baugenehmigung) pursuant to the
relevant state building act. Depending on the site, other permits may be required, e.g., under the German
Water Resources Act (Wasserhaushaltsgesetz). The approval generally requires, inter alia, the existence
of a local development plan (Bebauungsplan) or a project-related local development plan
(vorhabenbezogener Bebauungsplan) accompanied by an implementation agreement between the
municipality and the facility operator including certain implementation obligations of the operator. The
length of the approval procedure varies among the authorities and states. Provided all prerequisites are
fulfilled, the building authority is obligated without discretion to issue the permit.
The construction of wind power facilities requires either a permit under the German Emissions
Control Act (Bundesimmissionsschutzgesetz – ‘‘BImSchG’’) or a building permit pursuant to the
applicable state building act and the BauGB. Which kind of permit is required depends on the height of the
wind turbines (with heights up to 50 meters in total only a procedure under the state building act and the
BauGB is required). In particular under the procedure of the BImSchG, various environment protecting
provisions of other laws have to be taken into account, and the permits granted typically also contain the
duty of the operator to dismantle the facility at its own cost at the end of its operations. Prior to granting a
permit, an environmental impact assessment (Umweltverträglichkeitsprüfung – ‘‘EIA’’), including the
participation of the general public which can raise concerns, is required for wind parks with 20 or more
wind turbines of more than 50 meters in total. If the wind park should consist of three to 20 wind turbines, a
preliminary examination of the EIA is required. Again, the length of the approval procedure depends on
the scope of the procedure and the competent authority and in case all legal requirements are fulfilled, the
applicant has the right to obtain the approval without discretion of the granting authority.
In order to obtain a permit, the operators of both, solar power facilities and wind power facilities,
have to enter into a dismantling commitment. While this is legally required only for wind power facilities, it
will usually also be a condition of the permit for a solar facility.
III.
REGULATORY ENVIRONMENT
1.
Promotion of Renewable Energy Sources—Overview
AND
LEGAL FRAMEWORK
IN ITALY
In Italy, electricity generated from renewable energy sources has been promoted through a
number of incentive schemes, such as guaranteed payments for solar facilities or feed-in tariffs and a
tendering system for other renewable energy facilities.
Solar and wind energy facilities are, in addition, eligible for a reduced VAT (10% instead of 22%).
This tax benefit applies to both enterprises and private individuals. In addition to these national incentives,
Italy also provides for a series of regional programs.
In Italy, grid operators are obliged to give priority access to renewable energy facilities in the
operation of their grids. They are also obliged to give priority dispatch to electricity from renewable
sources. Facility operators may request ‘‘their’’ grid operator to expand the grid if the connection of a
facility requires this expansion.
150
2.
Incentives to Solar Facilities
The Conto Energia is the Italian promotion program which grants incentives for electricity
generated by solar facilities connected to the grid. Italy introduced this feed-in scheme in 2005 (with the
Conto Energia I). Other feed-in schemes followed, namely Conto Energia II, III, IV and V, recognizing
different incentives to solar facilities on the basis of the date of their commissioning9. Such promotional
schemes are only applicable to facilities commissioned before July 6, 2013, since the solar energy
incentive limit of a total of e6.7 billion has been reached in June 2013.
Under these promotional schemes, the operators of the solar facilities with a set capacity and
connected to the grid on a certain date are eligible for receiving a defined feed-in tariff, which is based on
the amount of electricity produced and which provides for a reimbursement payment in addition to the
price received for the sale of electricity. The tariff differs depending on different criteria according to the
applicable Conto Energia (capacity/type of facility/date of commissioning etc.) and is granted over a
period of 20 years. CHORUS’ solar power facilities in Italy are subject to the tariff provisions of the Italian
feed-in schemes I – IV (Conto Energia I – IV).
The different feed-in schemes progressively reduced the applicable feed-in tariffs over time, in
order to balance the level of public support with the costs of technologies. Accordingly, the feed-in tariff
applicable to a new facility depended on the time the facility commences its operations and decreased the
later such operations start. By way of example, for a non-integrated solar facility with an installed capacity
of 5 MW, the Conto Energia II recognizes a tariff of 38 Cents per kWh; if the same facility was
commissioned between August 31 and December 31, 2011, the Conto Energia III recognizes a tariff of
30 Cents per kWh; and the Conto Energia IV recognizes a tariff of 12.7 Cents per kWh starting from 2013
for such facility.
Finally, unlike the previous feed-in schemes, the Conto Energia V grants an all-inclusive feed-in
tariff to the share of net electricity injected into the grid and a premium tariff to the share of net electricity
consumed on site. By way of example, for a non-integrated solar facility with an installed capacity of
5 MW, an all-inclusive feed-in tariff of 10.6 Cents per kWh and a premium tariff of 3.1 Cents per kWh are
recognized. These two tariffs progressively decrease every half-year of application of the Conto
Energia V scheme, beginning on August 27, 2012.
A number of recent amendments of the Italian law materially affected the promotion of the Italian
renewable energy industries in general and the solar industry in particular. As a result of the expiration of
the Conto Energia V in July 2013, no governmental incentives will be provided for new solar facilities
anymore. Moreover, and with more drastic effects for CHORUS’ operations in Italy, the Legislative
Decree of June 2014 converted into the Law 91/2014 also retroactively applies to already operating solar
facilities to which incentives had been granted for 20 years pursuant to one of the Italian feed-in schemes.
Operators of existing solar facilities with an installed capacity in excess of 200 kW and entitled to the
feed-in tariffs had the choice to accept (i) a 6-8% cut of the feed-in tariff rate depending on the installed
capacity of the facility, (ii) a cut of the feed-in tariff by 17-25%, based on the residual years of the original
grant of the incentives, in conjunction with an extension of the payment period from 20 to 24 years, or
(iii) a cut in the tariff for a first period from 2015 and 2019, which would be followed by a second period in
which the previously existing tariff would be increased by the same ratio. If no choice is made (which was
the route that CHORUS decided to take; see M.XI. ‘‘Business—Legal Proceedings’’), alternative
(i) applies.
3.
Incentives to Energy Produced from Other Renewable Resources
The other main incentive system for electricity produced from renewable resources, except for
energy produced by solar facilities, is the green certificate incentive regime, pursuant to which green
certificates are assigned to the operator of a renewable energy facility in proportion to the electricity
generated therefrom. Such green certificates can be sold to the Gestore dei Servizi Elettrici (‘‘GSE’’, the
state-owned company which promotes and supports renewable energy sources in Italy) for a price based
on a percentage of the market price for wholesale electricity in the Italian market.
9
The Conto Energia I applies to solar plants with installed capacity of not more than 1 MW commissioned after September 30, 2005.
The Conto Energia II applies to plants commissioned before December 31, 2010. The Conto Energia III applies to plants
commissioned between January 1, 2011 and May 31, 2011. The Conto Energia IV applies to plants commissioned after May 31,
2011. And the Conto Energia V, applying from August 27, 2012 on, ceased to be in effect on July 6, 2013.
151
Pursuant to a change in law enacted in 2012, the green certificate incentive regime will be
discontinued as of January 2016. Wind parks and other renewable resources facilities currently
benefitting from the green certificate regime, will transition to a feed-in tariff regime for the remainder of
the eligible period ranging from 12 to two years depending on the facility. Renewable energy facilities
commissioned after December 31, 2012, in contrast to facilities already existing at such date, will have to
compete in a competitive auction and enroll in the Register of Qualified Facilities in order to receive such
feed-in tariffs (direct access will only be available to very small facilities), which tariffs will be calculated
using a formula that mirrors the formula applied to calculate the green certificate purchase price.
In addition, pursuant to another recent change in law that occurred in 2013, owners and
operators of renewable energy facilities other than solar facilities that received incentives for the relevant
technology may, at their own discretion, either (i) keep their current contractual arrangements with the
GSE unaltered and continue to benefit from the incentive as originally granted, or (ii) agree with the GSE
to a revision of their contractual relationship, by extending the period for which the incentive was originally
granted by seven years in return for a lower incentive to be kept for such longer period so as to cover the
entire productive life of the applicable facility.
Moreover, operators of renewable resources facilities other than solar facilities, may also choose
a fixed feed-in tariff (Tariffa Onnicomprensiva) for electricity generated from renewable sources. Such
fixed feed-in tariff system may apply to facilities qualified as a ‘‘plant powered by a renewable source’’
(Impianto Alimentato a Fonte Rinnovabile – IAFR), which were commissioned after January 2013 and
have an installed capacity of not more than 1 MW, for a period ranging from 15 to 25 years depending on
the energy source. The degression rate of such fixed feed-in tariff from 2014 onwards is set at 2% per
year.
4.
Sale of Energy Produced from Renewable Resources in the Market (Ritiro Dedicato)
Electricity fed into the grid by operators of renewable resources facilities may be sold on the free
market or be sold to the GSE (Ritiro Dedicato) which then manages the electricity sale in the market on
behalf of the producers. This additional system enables renewable energy to access the market indirectly
and more easily. Under this Ritiro Dedicato, a simplified purchase and resale agreement is concluded
between the producer and the GSE, pursuant to which the GSE purchases and resells the electricity to be
fed into the grid at the relevant fixed price or at a minimum guaranteed price and, on behalf of the
producer, transfers the fees for the use of the grid (dispatch and transmission fees) to the grid owners and
transmission system operators. Only small and medium sized producers up to a certain capacity
(e.g., 1 MW for all renewable energy sources if the producers do not use other support schemes) are
eligible for the Ritiro Dedicato and may choose between the fixed minimum tariff and average hourly
zonal prices.
Under certain conditions (e.g., capacity per facility up to 200 kW), electricity producers also can
make use of a net-metering mechanism (Scambio sul posto), which is based on the balance of the energy
fed-in and consumed. Under the net-metering system, the electricity generated by a consumer/producer
in an eligible on-site facility and injected into the grid can be used to offset the electricity withdrawn from
the grid. The owner of the facility receives compensation by the GSE equal to the difference between the
value of the electricity exported to the grid and the value of the electricity consumed in a given calendar
year. The GSE determines the amount of compensation taking into account the characteristics of the
facility, the contractual conditions agreed between the customer and his/her supplier, and the data that
grid operators and suppliers are required to periodically report to the GSE. If more energy is fed-in than is
consumed, this positive balance can compensate for a possible negative balance in the following periods.
5.
Construction and Operation of Solar Parks and Wind Parks
The permission of the construction and operation of renewable energy power facilities in Italy is
regulated by national and local (regional and provincial) laws. To obtain permission for the construction of
solar facilities with a capacity of up to 20 kW or a wind power facility with a capacity of up to 60 kW, the
operator has to submit a declaration of start-up (Procedura Abilitativa Semplificata) to the local
municipality. An environmental impact assessment (Valutazione Impatto Ambientale) is not required.
Larger solar or wind power facilities require a comprehensive single authorization
(Autorizzazione Unica) issued by the region or province where the facility is located in compliance with
different local or national laws. This permission includes all individual permits and authorizations that are
152
usually required, and the process may be long-lasting as it involves various parties. An environmental
impact assessment (Valutazione Impatto Ambientale) may have to be conducted before requesting the
issuance of the single authorization, e.g., for solar facilities with an installed capacity of more than 1 MW
or for wind parks to be erected near protected landscapes.
The single authorization will contain instructions on connection to the grid to which the grid
operator must adhere. For connection of a new renewable energy facility to the grid, the developer and
the local grid operator have to enter into an agreement dealing with the management of the grid
connection and the provision of relevant services. Connection requests for new facilities over 10 MW
have to be submitted to Terna S.p.A., the company operating the Italian power transmission grid, while
connection requests for facilities up to 10 MW are submitted to the competent electricity distribution
company.
6.
Classification as ‘‘Public Interest Property’’
Pursuant to the Decree 387/2003, renewable energy facilities authorized by means of a single
authorization are classified as public interest properties. As a consequence, the facility developer is
legally permitted to expropriate the essential real property if no agreement with the land owner can be
achieved on the use of the property. The land owner is entitled to compensation from the developer. With
respect to solar plants, according to the prevailing interpretation of the decree, the expropriation
procedure may involve only the portion/s of land on which the connection works must be carried out.
IV.
REGULATORY ENVIRONMENT
1.
Promotion of Renewable Energy Sources
AND
LEGAL FRAMEWORK
IN
FRANCE
In 2012, the French government committed itself to reduce the country’s nuclear dependency
from 75% to 50% by 2025. Therefore, France adopted a national action plan in favor of renewable energy
that lays down a national objective of reducing greenhouse gas emissions by 40% until 2030, as well as
the objective of achieving a renewable energy production of 23% of the gross energy consumption by
2020 and bringing it up to 32% by 2030.
Furthermore, by 2020 France aims at reaching a solar energy share of 5% (equaling 5.4 MW) of
all renewable energy and an installed capacity of 19 GW onshore wind energy (today at about 8.3 GW). In
addition, an electricity share of combined wind power (onshore and offshore) of about 10% should be
achieved.
To realize that, France promotes the generation of electricity from renewable energy sources by
a feed-in tariff and tax incentives. The generation of heat through energy from renewable energy facilities
is supported by energy subsidies, tax regulation mechanisms and a zero percent-interest loan granted by
banks that have signed a convention with the French government.
Mainly based on the Mécanisme de l’Obligation d’Achat, operators of renewable energy facilities
are entitled to receive payment of a feed-in tariff from the grid operator (the state-owned energy company
Électricité de France (EDF) or private electricity companies) for their electricity exported to the grid. Grid
operators are obligated to conclude contracts with the operators of renewable energy facilities on the
purchase of the electricity, at a price that is annually fixed by law.
Solar facilities are eligible up to an installed capacity of 12 MW for a period of up to 20 years. The
feed-in tariff rates applicable to facilities that become operational are subject to degression. During the
third quarter of 2014, they amounted to 6.98 Cents per kWh and were decreased for the fourth quarter to
6.80 Cents per kWh. The quarterly adjustment of the tariff levels is limited to a maximum of 20% per year.
In addition, 20% of the tariff is linked to a reduction index, which is legally defined every year. Since 2011,
in relation to larger solar facilities, the French energy regulator (Commission de Régulation de
l’Énergie – CRE) has been selecting projects receiving promotion through formalized tender processes,
by means of which projects are selected inter alia according to the price that the bidder wishes to charge
for electricity supplied to the grid. The CRE just opened a new tender process for solar facilities with a
capacity of more than 250 kW with the publication of the performance specifications in November 2014;
bidders can file applications until June 1, 2015.
153
Operators of onshore wind power are eligible to feed-in tariffs if the facility is situated in a wind
development area (Zone de Développement Eolien) defined by the municipalities, or if the maximum
installed capacity does not exceed 12 MW. Pursuant to the currently applicable order published on July 1,
2014, the tariff amounts to 8.2 Cents per kWh for the first ten years and to 2.8 to 8.2 Cents per kWh for the
next five years. Feed-in tariffs may be granted for up to 15 years. The percentage of the tariff that is
subject to reduction amounts to 60%.
The former feed-in tariff adopted on the basis of the former ministerial order of November 17,
2008 was abrogated on May 28, 2014, when the Council of State (Conseil d’Etat) decided that passing on
these above-market prices for electricity generated from renewable sources (paid to the operator of the
renewable energy facility) to the consumer constituted a state aid which had not been formally notified to
the European Commission. The current feed-in tariffs have been determined again–and notified to the
European Commission–by ministerial order of June 17, 2014 in relation to onshore wind facilities and are
identical to those of the cancelled ministerial order of 2008. Offshore wind facilities were not made subject
to the feed-in tariff but their promotion was left to tender processes in which the price is determined
dependent, inter alia, on the area of installation of the facility. A proposed new law on energy transition for
‘‘green growth’’ is currently going through the legislative procedure in France.
Further promotion of renewable energy power is provided by certain tax benefits. Persons
investing in renewable energy facilities are eligible for an income tax credit. In addition, the installation of
solar facilities on buildings is promoted by a reduced VAT rate.
2.
Construction and Operation of Solar Parks and Wind Parks
In general, the erection of a power facility is subject to the issuance of a building permit. Under
certain conditions, solar power facilities and wind turbines (particularly if they are lower than 12 meters)
may be exempted. Wind parks which are subject to authorization have to undergo an environmental
impact assessment depending on the type of the facility’s capacity and the project’s location. In addition,
power facilities with an installed capacity of more than 12 MW have to obtain an exploitation authorization
issued by the Ministry of Energy. The operation of an electricity generation facility above certain
thresholds, furthermore, requires an operating license issued by the French local authorities. A simplified
procedure is in the trial phase in seven regions in France with the objective to simplify and accelerate the
authorization process.
In the context of the purchase of the Alstom energy division by General Electric, the Decree
no. 2014-479 imposed a control originally limited to sectors such as defense and security to foreign
investments in the energy sector. This new decree extended the requirement of obtaining a prior approval
of the Ministry of Economics in case of acquisition of a controlling interest in a French energy company
and the acquisition of all or part of an energy business line by a foreign investor.
V.
REGULATORY ENVIRONMENT
AND
LEGAL FRAMEWORK
IN
AUSTRIA
Under the Renewable Energy Directive 2009, Austria is required to increase its share of
renewable energy from 23.3% in 2005 to 34% in 2020. The Green Electricity Act (Ökostromgesetz)
provides for expansion targets of 1,200 MW for solar energy and 2,000 MW for wind energy for the period
of 2010 to 2020.
Similar to the former German approach, the Austrian promotion of electricity generated from
renewable energy sources is provided through feed-in tariffs granted for a certain period of operation to
the operator; above-market prices are passed on to the consumer. The national clearing agency for green
electricity (Ökostromabwicklungsstelle) has to enter into contracts with the operator and purchase the
offered electricity on legally binding conditions.
In Austria, the operator has to submit an application to obtain the incentive. If the application is
approved, the operator is eligible for the guaranteed feed-in tariff for 13 years. As the targeted total
capacity of renewable energy facilities which are entitled to receive such public support is limited per year,
not all applications are being approved.
In 2014, the feed-in tariff for solar facilities on open space up to a maximum nominal capacity of
350 kW was 10 Cents per kWh. In addition, an investment grant of 30% of the investment costs,
maximum e200 per kW, may be awarded by the Ökostromabwicklungsstelle. Beginning in 2015, solar
154
facilities on open space are no longer supported by feed-in tariffs but only by the investment grants. The
feed-in tariff for onshore wind power amounted to 9.35 Cents per kWh.
Solar facilities which are erected on open space may only be built if an approval has been
obtained. The construction of wind facilities is subject to the building law of the Austrian states
(Bundesländer) or the electricity laws. In addition, the law of the Bundesländer may require a specific
designation of the projected area for the erection of the relevant renewable energy facility. A simplified
procedure (vereinfachtes Verfahren) of an EIA is required under certain conditions regarding certain wind
power projects, i.e., projects with a capacity of more than 20 MW or with more than 20 converters having a
nominal capacity of 0.5 MW each, or in nature protection areas with a capacity of more than 10 MW or
more than ten converters having a nominal capacity of 0.5 MW each.
VI.
REGULATORY ENVIRONMENT
AND
LEGAL FRAMEWORK
IN
SCANDINAVIA
Finland promotes renewable energy facilities through payment of a premium paid by the
government over a period of 12 years, which balances the difference between the market price for
electricity generated from renewable sources and the general target remuneration. The current ‘‘general
target remuneration’’ amounts to 8.35 Cents per kWh, while wind energy projects are supported by an
increased target price of 10.53 Cents per kWh until the end of 2015, following which they receive the
lower general target remuneration. Solar energy as well as other renewable energy sources that are less
efficient in Finland may be subject to the promotion of the investment of up to 40% of the investment
costs. However, the operator has to choose between the market premium and the investment promotion
system.
Sweden operates a quota system. In Sweden, electricity from renewable energy sources is
funded by the price achieved by its sale on the open market and through the sale of green electricity
certificates (Elcertifikat). Producers of renewable energy receive such a certificate for each generated
MWh. Energy suppliers, specific customers and energy intensive companies are obligated to cover a
certain amount (‘‘quota’’) of their used electricity by energy from renewable sources. This may be proven
by the purchase of green electricity certificates, and the failure to comply with the obligation may be
subject to fines. Energy suppliers may pass on the price for the certificates to the consumers. In January
2012, a mutual market between Sweden and Norway for the trade of green electricity certificates was set
up. Further promotions, such as tax advantages for wind power facilities and investment grants for solar
facilities, also are provided under Swedish law.
VII.
REGULATORY ENVIRONMENT
AND
LEGAL FRAMEWORK
IN THE
UK
The UK has set a target for 15% of its overall energy consumption to come from renewable
sources by 2020, as set out in the Renewable Energy Directive 2009. This objective is supported through
a number of policy initiatives, including feed-in tariffs. Feed-in tariffs are granted for smaller scale
renewable energy projects, such as wind and solar facilities with a capacity up to 5 MW, and are granted
for 20 years of the renewable energy facility’s start of operation. The particular accreditation process
required will depend on the technology and size of the facility. For example, facilities with a declared net
capacity of 50 kW up to an installed capacity of 5 MW must apply to the regulator, Ofgem (Office of Gas
and Electricity Markets), for accreditation. Once accredited, the level of the tariff will also depend on the
technology and size of the facility and such facilities will receive different rates for the generation of
electricity as compared with the export of electricity to the grid.
Currently, the main financial incentive for renewable energy (in particular, for large scale
facilities) is the so-called Renewables Obligation. Operators of facilities with a capacity between 50 kW
and 5 MW may choose between the Renewables Obligation and feed-in tariffs and for facilities with a
capacity in excess of 5 MW, operators currently have a choice between the Renewables Obligation or
so-called Contracts for Difference (discussed below). However, the Renewables Obligation will be closed
to new generation facilities from March 31, 2017 onwards (with even earlier closure to new generation
facilities from large-scale solar facilities). Under the Renewables Obligation, electricity suppliers must
purchase a certain share of electricity from renewable sources (this share increases over time). Electricity
suppliers fulfil their obligation by submitting Renewable Obligation Certificates (‘‘ROCs’’) to Ofgem (or
paying a penalty for any shortfall). ROCs are received by electricity generators for every MWh of eligible
renewable electricity generated. Suppliers therefore factor in the value of such ROCs when purchasing
155
electricity from renewable electricity generators (or alternatively, generators can sell ROCs on the open
market).
For large scale projects, the Renewables Obligation will be replaced with private law contracts
between renewable electricity generators and a low carbon contracts company (‘‘LCCC’’) wholly owned
by the UK Government. These are known as Contracts for Difference (‘‘CfD’’) and provide a guaranteed
strike price for the renewable electricity generated. Whenever the strike price is higher than the market
price for electricity, the LCCC has to pay the difference to the energy generator and the position is
reversed when the market price falls below the strike price (when the generator has to repay the
difference). The CfD regime is currently implemented in Great Britain only (Northern Ireland will
implement it in 2016) and, as noted above, energy generators may choose between the Renewables
Obligation system and the CfD system until 2017, when CfDs will become the only support scheme for all
new facilities above 5 MW in the UK.
Renewable energy generation is further promoted by other policy initiatives, such as the
implementation of a special tax (Climate Change Levy) on electricity generated from fossil fuel sources
(electricity from renewable sources is exempted from the Climate Change Levy and, instead is eligible for
tradable certificates known as Levy Exemption Certificates).
156
M. BUSINESS
I.
OVERVIEW
CHORUS is an independent power producer and a full-service asset manager with a
long-standing focus on investments in renewable energy power facilities. In addition, CHORUS provides
advisory and asset management services to professional investors in the renewable energy sector. Since
its specialization in the renewable energy field in 2006, CHORUS has initiated 21 German limited
partnerships (Kommanditgesellschaften) and three Luxembourg special investment funds focused on the
renewable energy sector, which, advised by CHORUS, executed total investments in 67 solar and wind
parks located in Germany and other European countries with a total capacity of 254 MW (solar parks:
151 MW; wind parks: 103 MW), representing a total investment volume of approximately e673 million.
Between 2009 and 2014, the total electricity generated per year by the solar and wind parks managed
and operated by CHORUS grew from 1.3 MWh in 2009 to 252,843 MWh in 2014 CHORUS owns and
operates 62 of these parks (the ‘‘CHORUS Portfolio’’) and manages and operates five wind parks for the
Luxembourg special investment funds initiated by it (the ‘‘Managed Portfolio’’). Following the acquisition
of a solar or wind park for its own portfolio or for professional funds and investors, CHORUS provides
operations and asset management services to the legal entities owning the solar and wind parks.
As part of a recent Reorganization of the CHORUS Group in preparation of the Offering (see
N. ‘‘Reorganization of the CHORUS Group’’), the existing portfolio of solar and wind parks formerly held
by most of the German limited partnerships together with the asset management and advisory service
companies have been transferred to the Issuer. CHORUS believes to be one of the largest independent
power producers and full-service asset managers in the renewable energy sector in Germany, measured
by the cumulative capacity of the CHORUS Portfolio.
According to the Issuer’s combined income statement for the short financial year ended
December 17, 2014, CHORUS generated total revenues of e54,983 thousand (also on basis of the Pro
Forma Consolidated Financial Information), total EBIT of e24,978 thousand, EBITDA of
e42,730 thousand, profit before tax of e4,342 thousand (or e7,869 thousand on basis of the Pro Forma
Consolidated Financial Information – as to the hypothetical nature of the Pro Forma Consolidated
Financial Information shown, see the introduction to I. ‘‘Selected Pro Forma Consolidated Financial
Information’’) and profit for the year / total comprehensive income of e3,730 thousand (or
e4,938 thousand on basis of the Pro Forma Consolidated Financial Information). For the three month
period ended March 31, 2015, according to the Issuer’s Unaudited Interim Condensed Consolidated
Financial Statements, CHORUS’ total revenues were e12,365 thousand, its total EBIT was
e2,365 thousand, EBITDA was e7,844 thousand, profit before tax was e70 thousand and total
comprehensive loss for the period was e428 thousand (adjusted for extraordinary effects due to
expenses related to the Offering, the total comprehensive profit for the period would be e356 thousand).
The business activities of CHORUS are divided into two business lines: ‘‘energy generation’’ and
‘‘asset management’’.
•
In its business line ‘‘energy generation’’, CHORUS acquires and operates solar and wind
parks in Europe, with a focus on Germany. The CHORUS Portfolio produced a total of
219,249 MWh in the financial year 2014–which is enough energy to meet the annual energy
needs of approximately 73,000 average German two-person households.10 CHORUS’ 57
solar parks generated 164,034 MWh and its five wind parks 55,214 MWh in 2014. In its
business line ‘‘energy generation’’, CHORUS will continue to invest in renewable energy
power facilities in European countries which it believes to provide a reliable regulatory
environment with a continued focus on solar and wind energy, but also regularly assesses
investment opportunities in other forms of proven renewable energy technologies, such as
hydro power or energy storage systems.
In the short financial year ended December 17, 2014, on a combined basis, electricity
generation revenues amounted to e53,964 thousand. For the three month period ended
10
Based on an average consumption of a German two-person household without electronic warm water preparation per year of
3,000 KWh (Source: BDEW – Bundesverband der Energie- und Wasserwirtschaft e.V., Electricity Consumption in Private
Households, October 2013).
157
March 31, 2015, electricity generation revenues were e10,210 thousand on a consolidated
basis.
•
In its business line ‘‘asset management’’, CHORUS initiates funds for professional investors
or tailors and structures other investments for professional investors in the field of renewable
energy against a fee and provides operations services for existing power plants held by
professional investors. In April 2014, CHORUS received final regulatory approval for the
initiation of its first Luxembourg regulated special investment fund, CHORUS SICAV-SIF,
which aims at acquiring a diversified portfolio of infrastructure assets, in particular renewable
energy parks, in selected European countries with a current focus on Germany. Two
sub-funds of CHORUS SICAV-SIF have already invested their initially raised capital in 2014
by acquiring wind parks with a total investment volume of more than e150 million. A third
sub-fund has recently been admitted by the Luxembourg regulator and there are currently
preparations to distribute this fund to investors. In addition, in this business line ‘‘asset
management’’, CHORUS provides its operations and asset management services to the
legal entities owning the parks of the CHORUS Portfolio and, for a recurring remuneration,
the Managed Portfolio.
In the short financial year ended December 17, 2014, on a combined basis, asset
management revenues amounted to e1,019 thousand. For the three month period ended
March 31, 2015, asset management revenues were e2,155 thousand on a consolidated
basis.
II.
HISTORY
OF THE
CHORUS GROUP
The origins of the Issuer and the current CHORUS Group date back to 1998, when
CHORUS GmbH, a direct subsidiary of the Issuer, was founded as a sales company initially focusing on
the distribution of investment opportunities in the German investment market. Following a business
repositioning in 2006, CHORUS GmbH specialized as a fund and asset management company in the
renewable energy industry and started the acquisition and management of the current asset portfolio of
the CHORUS Group.
The CHORUS Group in its current form exists since the successful implementation of a
Reorganization in 2014, whereby funds managed by CHORUS directly and indirectly transferred their
shares in 74 companies operating solar and wind parks to the Issuer against the issuance of shares. See
N. ‘‘Reorganization of the CHORUS Group’’.
III.
COMPETITIVE STRENGTHS
CHORUS believes that the following competitive strengths have driven its value creation in the
past and will continue to distinguish CHORUS in the future from its competitors:
•
Large diversified portfolio of high quality solar and wind parks: CHORUS believes to
be one of the largest independent power producers and full-service asset managers in the
renewable energy sector in Germany measured by the cumulative capacity of its parks.
Since commencement of its investment activities in the renewable energy area in 2006, the
CHORUS Group has assembled a large diversified portfolio of 57 solar and 5 wind parks
with a total capacity of 182 MW (solar parks: 151 MW; wind parks: 31 MW), representing a
total investment volume of more than e500 million. Such renewable energy parks are
geographically spread-out over several countries. Following initial investments in Germany,
which continues to be the main geographical focus of CHORUS for its investments,
providing for a stable and reliable regulatory environment for the operation of solar and wind
parks, CHORUS also invested in Italy, Austria and France. The large number of parks in the
CHORUS portfolio as well as their spread across several countries and regions also results
in a diversification of risks relating to the operation of individual parks (such as technical
defects or regional weather conditions).
CHORUS furthermore believes that its solar and wind parks are of a high quality with a
technical availability of more than 99%, excluding potential disruptions from extraordinary
natural events such as hail storms and vandalism. As part of its selection process, CHORUS
158
attaches great importance to the quality of the technical components of the facilities and that
these components are produced by reputable suppliers. CHORUS believes that a high
quality of solar panels, inverters and wind turbines of the facilities leads to an uninterrupted
availability of the parks and steady energy production, which supports the reliability of the
calculated energy and revenue generation over the life of a park.
•
Risk-reduced investment focus, with broad access to investment opportunities and
pipeline: For its investments, CHORUS applies an investment approach aiming at the
generation of stable cash flows and a minimization of risks. In particular, CHORUS avoids
risks resulting from the development of renewable energy parks and only acquires projects
which have already received the required permits, obtained financing and where the grid
connection is secured (‘‘ready-to-build’’) or so-called ‘‘turn-key’’ facilities, which are already
connected to the grid and have commenced their operations. In CHORUS’ view, such
approach significantly reduces financial risks.
As a result of its almost ten years of investment activity in the renewable energy area,
CHORUS has created an extensive network of established developers and other sellers of
solar and wind parks in many European countries as well as of renowned intermediaries and
brokers, which are constantly providing CHORUS with attractive investment opportunities.
As a result, CHORUS often receives information on interesting investment opportunities
early, which allows it to react quickly. CHORUS believes to have gained the reputation in the
market of being able to implement complex projects within a short period of time, which in its
view further adds to its attractiveness for providers of investment opportunities. CHORUS
estimates that on average it receives more than 1,000 offers to invest in renewable energy
facilities per year, which is an expression of CHORUS’ excellent access to investments. As
per March 31, 2015, CHORUS has a strong pipeline of 49 concrete investment opportunities
in the areas of solar, wind and hydro energy with a total capacity of 618 MW. The many years
of investment experience of its board members and senior employees in the renewable
energy area also allows CHORUS to comprehensively assess and quickly and efficiently
evaluate interesting investment opportunities which it considers attractive.
•
Strong operations services capacities: Following the acquisition of solar or wind parks,
CHORUS provides a broad array of asset management services to the entities owning the
respective parks. Such services include the commercial and facility management of the solar
and wind parks in order to ascertain that the parks operate in line with profitability
expectations and the online monitoring of the outsourced technical operation and
maintenance services. As a result of many years of experience and the acquisition of its
large portfolio of solar and wind parks, CHORUS has built up a strong technical and
commercial knowledge regarding the operation of such parks and believes to be able to
organize and conduct its asset management activities very efficiently. This enables it to
preserve the productivity of the parks at the desired levels and ensure stability of its cash
flow generation. CHORUS further believes that its broad experience in asset management
of international solar and wind parks also forms the basis to further grow its institutional fund
initiation activities in the renewable energy area.
•
Excellent access to professional investors: As a result of its long-standing investment
activities in the renewable energy area, the activities of its strong sales team and its success
with the initiation of institutional funds and the investment of capital raised in this field,
CHORUS believes to have excellent access to an established business network of more
than 1,000 professional investors for purposes of fund initiation and to professional investors
regarding direct investment in renewable energy assets in Europe, in particular in the DACH
region (Germany—Austria—Switzerland). Furthermore, CHORUS believes to be in an
excellent position for structuring investments for professional investors in renewable energy
assets, either through setting up institutional funds or other forms of investment vehicles.
CHORUS thinks that it is one of the few market participants in Germany being able to offer its
synergetic combination of investment and asset management experience and structuring
services for professional investors regarding investments in renewable energy projects.
CHORUS furthermore believes that its combination of these services with an own portfolio of
diversified renenewable energy generation assets is unique in its market, providing it with an
outstanding market position. With the initiation of its first institutional renewable energy fund
159
under Luxembourg law in 2014, CHORUS SICAV-SIF, CHORUS further increased its
structuring experience, already completed initial fund raisings for three sub-funds and
invested the capital raised in four wind parks in Germany and one wind park in Finland.
IV.
•
Generation of steady and predictable cash flows through a broad portfolio of solar
and onshore wind parks. All of CHORUS’ solar and wind parks in Germany, Italy, Austria
and France receive a subsidized remuneration for their generated electricity, either through
statutory feed-in tariffs or through the payment of regulated market premiums in case of
direct sales of electricity on the market. Such financial promotion is granted for a period of
time fixed in advance, which typically ranges from 12 - 20 years. In combination with the
stable costs and expenses of each of its solar and wind parks, this results in very steady and
predictable cash flows per park over large parts of their economic life and leads to a high
degree of reliability of net profits and returns on investment. Furthermore, in the majority of
its investments CHORUS has secured options to extend its lease agreements regarding the
properties on which the parks are erected for several years, which allows a continuation of
the operation of the parks after expiry of the period of guaranteed remuneration at relatively
moderate operational costs, offering the possibility of the generation of stable income
beyond expiry of the period of guaranteed subsidization (so-called ‘‘golden end’’). To secure
the permanent availability of its solar and wind parks and to minimize possible risks resulting
from technical defects or adverse weather conditions, CHORUS constantly monitors the
performance of the parks of its portfolio through online tools, in addition to local technical
service providers, to be able to take appropriate measures without delay.
•
Experienced management team and optimized operations: CHORUS’ Management
Board has significant experience in the renewable energy industry and with asset
management and fund initiation services in particular in Germany but also in other European
jurisdictions, and has a proven track record of assembling a successful portfolio of
renewable energy assets and developing a large network of professional project developers
and institutional investors in the industry alike. CHORUS believes that this management
team, supported by a strong team of qualified employees with relevant industry expertise,
will allow CHORUS to successfully implement its further growth strategy. In addition,
CHORUS has a very lean and effective organizational structure for its group and relies on a
small but experienced team of employees for its various operations. In CHORUS’ view, such
structure contributed to its success in the past and in particular results in shorter reaction
time and efficient decision processes, allowing CHORUS to react quickly to offered
renewable energy investment opportunities.
STRATEGY
CHORUS strives to continue the profitable expansion of its current portfolio of renewable energy
parks through the acquisition of additional facilities, to expand its fund initiation and investment structuring
activities for professional investors and to further develop its asset management and advisory activities.
The key elements of CHORUS’ strategy include the following:
•
Extension of energy generation business through acquisition of new solar and wind
parks: CHORUS plans to further expand and grow its energy generation business and its
portfolio of renewable energy facilities through the acquisition of further solar and wind
parks. Its main focus when deciding on future investments will be on profitability and a
conservative risk profile as the decisive factors. CHORUS’ current focus is in particular on
the acquisition of further wind parks, which CHORUS believes offer a very good risk-reward
ratio in the current market environment. In particular, CHORUS plans to complete projects
from its current pipeline of investment opportunities and, depending on the amount of
proceeds resulting from the Offering of the New Shares, targets the potential acquisition of
new renewable energy parks with an installed capacity of between 180 - 200 MW, depending
on technology. Furthermore, CHORUS intends to cautiously expand the scope of its
investments into additional proven renewable energy technologies other than solar and
wind. Among such technologies which CHORUS is currently evaluating are hydro power
plants and energy storage facilities. However, such an extension of scope will only be
implemented, if at all, after careful examination of the underlying economics and a
comprehensive assessment of the risks related to such technologies. In addition, CHORUS
160
also evaluates the extension of its portfolio into new geographic markets and countries with a
regulatory environment that CHORUS deems reliable, to further diversify portfolio risks
resulting from changing weather conditions and other regional factors. Other aspects
CHORUS will take into consideration in this context are its professional contacts into such
countries, the availability of high quality service providers and the general economic and
political situation of such countries.
•
Expansion of fund initiation activities and investments for professional investors:
CHORUS plans to expand its activities in the area of fund initiation and structuring of
investment opportunities for professional investors in the field of renewable energy.
CHORUS plans to set up further sub-funds under its existing special investment umbrella
fund under Luxembourg law, CHORUS SICAV-SIF, and to acquire additional renewable
energy assets for such funds as well as initiate further sub-funds. In addition, CHORUS
intends to use its established contacts with professional investors to further expand its
activities in the area of structuring renewable energy investments for such professional
investors and to use its excellent access to attractive investment opportunities also for this
purpose. CHORUS currently targets a volume of approximately e100 million to be raised per
year from professional investors for investments in its CHORUS SICAV-SIF sub-funds and
individually tailored and structured renewable investment vehicles, which, depending on
leverage, would translate into an investment volume in renewable energy assets of
approximately e300 million p.a.
•
Expansion of the operations services for renewable energy parks of third parties:
CHORUS furthermore intends to use its broad network of contacts to professional investors
and institutional funds and to also use its discussions with these target groups on fund
initiation and investment opportunities to offer these investor groups its operations and asset
management services for the investors’ renewable energy facilities. This may include taking
on successful teams of established asset managers with a similar focus as CHORUS’ on
renewable energy investments and indirectly assuming the operations and asset
management activities regarding their managed portfolios. This would allow CHORUS to
leverage its existing asset management capacity and to benefit from scale effects.
•
Assumption of technical management for facilities: Currently, the technical
management of CHORUS’ solar and wind parks are outsourced to local third party service
providers. Going forward, CHORUS intends in the medium term to expand its existing
operational management activities to also covering parts of the technical management of
renewable energy parks itself. CHORUS believes that this service expansion could be
beneficial as it would enhance its full-service approach as well as its technical know-how. To
implement such expansion of its services offering, CHORUS is already in discussions with a
number of experts who have experience with such technical service offerings.
V.
ENERGY GENERATION
1.
Overview
CHORUS acquires renewable energy parks (either for its own CHORUS Portfolio or for
investments of professional third party investors) and operates such parks usually until the end of the
operations. However, CHORUS is not a project developer. CHORUS’ focus for its acquisitions so far has
been on solar and wind parks in Germany and selected other European countries. CHORUS currently
owns and operates 57 solar and five wind parks in Germany and other European countries.
CHORUS has concentrated its energy generation assets and activities, and accounts for the
results of such assets and activities, in its business segment ‘‘energy generation’’.
2.
Portfolio of Existing Solar and Wind Parks
Since 2006, CHORUS steadily built up its current CHORUS Portfolio. As at December 31, 2014,
CHORUS operated a total of 57 own solar parks and five own wind parks. CHORUS’ own solar and wind
parks produced in 2014 a total of 219,249 MWh of which approximately 74.8% (164,034 MWh) was
produced by its solar parks and approximately 25.2% (55,214 MWh) by its wind parks. Following its
161
recent Reorganization (see N. ‘‘Reorganization of the CHORUS Group’’), CHORUS holds its solar or
wind parks through special purpose vehicles (‘‘SPV’’), which operate the solar or wind parks.
In Germany, as at March 31, 2015, CHORUS operated 26 solar parks with a total capacity of
104 MW and three wind parks with a total capacity of 19 MW, which makes Germany the most important
region for investments for CHORUS. The other solar and wind parks operated by CHORUS are located in
Italy (solar parks only), Austria (one wind park) and France (one wind park).
The following tables show the CHORUS Portfolio in the different countries in Europe at the date
hereof:
Solar Parks in Germany and Italy
Location
Betzenberg .............
Fürstdobl ................
Langenamming .......
Bockelwitz ..............
Denkendorf .............
Gelchsheim ............
Gnannenweiler ........
Hettenkofen ............
Pasewalk ...............
Pocking..................
Richelbach .............
Rietschen ...............
Rüdersdorf .............
Staig......................
Vilseck ...................
Bitterfeld ................
Gardelegen.............
Kemating................
Neuenhagen ...........
Burgheim ...............
Eisleben .................
Greiz .....................
Gut Werchau ..........
Ruhland .................
Scheibenberg..........
Warrenzin...............
Foggia ...................
Arrone ...................
Banna....................
Fossombrone ..........
Lecce ....................
Macerata Feltria ......
Montegabbione .......
Narni .....................
Pesaro ...................
Sansepolcro............
Teramo ..................
Ternavasso.............
Viterbo 1 ................
Viterbo 2 ................
Total .....................
*
Remaining
Start of
Feed-in
Term of
Operations Capacity Number Shareholding
Tariff
Subsidization
(year)*
(in MW) of Parks
(in %)
(in g ct/kWh)
(in years)
2006
2009
2009
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2011
2011
2011
2011
2011
2012
2012
2012
2012
2011
2012
2010
2011
2011
2011
2011
2011
2011
2011
2011
2011
2011
2011
2011
2011
1.4
1.3
2.3
4.7
2.0
1.8
6.4
1.4
2.8
1.1
8.6
2.3
7.4
4.5
10.0
6.1
2.5
2.0
4.1
1.9
5.8
4.5
7.7
3.0
5.5
3.1
8.9
0.8
9.5
1.0
2.9
1.0
1.0
0.8
1.0
4.6
3.0
7.8
1.6
2.8
150.9
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
9
1
2
1
3
1
1
1
1
1
3
2
2
3
57
100.0
100.0
100.0
100.0
100.0
100.0
56.8
100.0
100.0
100.0
100.0
100.0
100.0
75.7
100.0
36.0
100.0
100.0
100.0
100.0
100.0
100.0
100.0
100.0
100.0
88.6
100.0
100.0
100.0
100.0
100.0
100.0
100.0
100.0
100.0
100.0
100.0
100.0
100.0
100.0
39.7
31.9
31.9
28.4
26.2
28.4
28.4
28.4
28.4
28.4
28.4
28.4
28.4
28.4
28.4
22.1
22.1
21.1
21.1
21.1
16.0
18.8
18.8
17.9
19.5
18.8
34.6
23.3
26.4
27.6
34.6
27.6
26.3
27.6
30.3
20.1
27.6
31.3
23.3
30.3
16.0
15.0
15.0
16.0
16.0
16.0
16.0
16.0
16.0
16.0
16.0
16.0
16.0
16.0
16.0
17.0
17.0
17.0
17.0
18.0
18.0
18.0
18.0
18.0
18.0
19.0
15.8
16.8
16.6
16.6
16.3
16.6
16.7
16.6
16.4
16.9
16.6
16.3
16.8
16.4
Means the respective start of operations pursuant to the EEG (in Germany) or similar laws in Italy.
162
Property /
Lease (with
lease end)
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
Lease
(2029)
(2029)
(2029)
(2031)
(2030)
(2035)
(2035)
(2030)
(2030)
(2030)
(2035)
(2030)
(2030)
(2035)
(2030)
(2031)
(2031)
(2031)
(2031)
(2031)
(2037)
(2032)
(2032)
(2032)
(2031)
(2037)
(2034)
(2036)
(2030)
(2036)
(2031)
(2036)
(2036)
(2036)
(2031)
(2036)
(2036)
(2030)
(2036)
(2031)
Wind Parks in Germany, Austria and France
Remaining
Start of
Feed-in
Term of
Operations Capacity Number Shareholding
Tariff
Subsidization
(year)*
(in MW) of Parks
(in %)
(in g ct/kWh)
(in years)
Location
Hellberge ...............
Stolzenhain.............
Ruhlkirchen ............
Pongratzer Kogel.....
St. Bihy ..................
Total .....................
*
2011
2011
2013
2013
2011
6.9
2.0
9.6
9.2
3.2
30.9
1
1
1
1
1
5
100.0
100.0
100.0
100.0
100.0
9.4
9.5
9.3
9.5
8.4
17.0
17.0
19.0
12.0
11.6
Property /
Lease (with
lease end)
Lease
Lease
Lease
Lease
Lease
(2031)
(2031)
(2038)
(2037)
(2036)
Means the respective start of operations pursuant to the EEG (in Germany) or similar laws in Austria and France.
The average remaining term during which the existing parks receive subsidization is
approximately 16.5 years (calculated on a MW-weighted basis, attaching proportionally more weight to
the remaining term of those subsidized parks which have a higher energy production capacity). The term
of the lease agreements for the properties on which the parks are located typically corresponds to the
term of the subsidization. The vast majority of the lease agreements contains an option for CHORUS to
extend the lease agreements for additional years to preserve optionality.
3.
Investment Strategy and Implementation of Investments
In the course of the acquisition of the CHORUS Portfolio of solar and wind parks, CHORUS has
applied certain investment criteria which it intends to continue to apply in the future. The selection and
acquisition of suitable assets for CHORUS’ investments follows an intensive internal selection and
evaluation process. CHORUS’ general focus on long-term investments results in a preference for low risk
profile investments.
a.
Investment Focus and Criteria
Since 2006, CHORUS has focused on investments in solar and wind energy facilities in selected
European countries and has developed a core competence in this field (see M.III. ‘‘—Competitive
Strengths’’). Based on this competence, CHORUS will continue to seek and evaluate suitable investment
opportunities in solar and wind parks, with a strong focus on Germany and certain other Central and
Western European states as well as Scandinavia, all of which CHORUS believes provide a reliable
regulatory environment. However, if an interesting investment opportunity arises in other forms of proven
technologies in the renewable energy sector, e.g., hydro power plants or energy storage facilities, or in
other countries which in CHORUS’ view provide for a reliable regulatory framework and offer an adequate
risk profile, CHORUS may generally also assess investments in such technologies or countries; see
M.IV. ‘‘—Strategy’’.
Since so-called ‘‘grid-parity’’ projects (i.e., energy projects which can be operated independently
from any governmental subsidization for energy produced from renewable sources) still are rare in
Europe in the renewable energy area, CHORUS currently plans to continue to focus for its investments on
countries which provide for governmental subsidization of electricity from renewable energy sources fed
into the grid. However, CHORUS seeks to further explore investments in projects with subsidization
systems different from the ones used in Germany (fixed feed-in tariffs or a direct marketing system with a
market premium), as they exist for example in Sweden, where a quota system with green certificates has
been introduced (see L.VI. ‘‘Regulation—Regulatory Environment and Legal Framework in
Scandinavia’’).
In the renewable energy sector, it is the project developer who identifies a suitable site for a solar
or wind project. The developer then typically sets up a legal entity as special purpose vehicle (SPV),
which further develops the site through securing land usage rights and obtaining the necessary regulatory
approvals and permits and often also the relevant project financing. The development work also includes
engineering, design and construction management work, earthwork and civil engineering for the
installation of the technical components of the solar panels and inverters or wind turbines as well as
electrical work for the connection of the facility to the grid through laying the necessary cabling. CHORUS
believes the risks associated with the development and own construction of a solar or wind park exceed
163
CHORUS’ targeted risk profile. Accordingly, CHORUS does not target investment opportunities in the
project development sector for solar or wind parks and companies of the CHORUS Group do not act as
general contractor for the construction of solar or wind parks, either.
Attractive opportunities to invest in fully erected facilities connected to the grid are rare. Due to
CHORUS’ excellent market penetration and its widespread and reliable partner network, CHORUS has
access to attractive assets at an early stage and secures investments in such assets prior to the actual
completion of the erection of a facility by purchasing a project early, subject to its successful completion.
However, in these cases it is essential for CHORUS that all required permits have been obtained by the
SPV for the erection and future operation of the facility and that the required properties and the financing
have been contractually secured already at the time of the acquisition and that the future grid connection
of the park is secured. In the event of an acquisition of such so-called ‘‘ready to build’’ projects, the share
purchase agreement typically provides for the completion of the erection of the facility and the grid
connection as conditions precedent for closing of the transaction (including the full payment of the
purchase price) to avoid any development risks and to minimize the investment risk. Furthermore, the
envisaged completion date is fixed in the agreements and, in the event the completion is delayed, the
agreements provide for a purchase price adjustment mechanism in order to compensate for lost profits
due to the delay. In some cases, CHORUS agrees with the developer / seller on certain down payments if
it considers the seller financially sound or if the seller provides a corresponding bank guarantee or a
guarantee from a financially sound third party for the advance payment. In rare instances CHORUS also
is able to acquire solar or wind parks which only recently have started their operations and are from
CHORUS’ point of view as good as new.
b.
Investment Structure and Co-Investments
CHORUS generally aims to accomplish its investments through the acquisition of 100% of the
shares in the SPV operating the solar or wind park. However, depending on the size of the investment and
other circumstances, co-investments are also possible, either together with CHORUS SICAV-SIF or
investment vehicles set up for other professional investors advised by CHORUS, such as insurance
companies or pension funds, if there is an agreement that CHORUS manages these investments. In
these co-investment structures, CHORUS typically is flexible regarding the percentage of its participation
in the SPV and does not limit itself by firm restrictions in terms of participation percentages, as it would
also benefit from fees paid for its asset management services rendered to the SPV owning the respective
park. However, CHORUS avoids investments in SPVs together with third parties if it neither holds a
majority participation in the SPVs nor is able to provide the asset management services for the SPV or the
park.
The business interests and investment focus of CHORUS, CHORUS SICAV-SIF and other
investment vehicles set up by CHORUS for professional third party investors generally are aligned. If at
all, the investment approach applied by CHORUS SICAV-SIF may be slightly more restrictive compared
to the approach applied by CHORUS itself as to, e.g., questions of leverage of the target or size of the
investment (its investment guidelines need to comply with respective requirements under Luxembourg
law applicable to specialized investment funds). The SPVs owning the solar or wind parks typically are
acquired by means of pure equity financing, as the debt financing component (leverage) is taken out by
the SPVs themselves. The availability of free cash for investments at the level of CHORUS, CHORUS
SICAV-SIF or investment vehicles of professional third party investors, therefore, plays an important role
in the determination of who shall execute the investment. The availability of free cash of CHORUS,
CHORUS SICAV-SIF or investment vehicles of professional third party investors varies throughout a
fiscal year depending, inter alia, on when the last fund raising took place and how much of these monies
have been applied to investments already. If a suitable investment opportunity regarding a target with a
convincing business case is presented to CHORUS, CHORUS evaluates if either CHORUS, CHORUS
SICAV-SIF or an investment vehicle of professional third party investors has enough free cash available
for such investment. In case only one of them has sufficient funds available, the respective company
makes the investment. If enough free cash is available at either of CHORUS, CHORUS SICAV-SIF or an
investment vehicle of professional third party investors, CHORUS’ management is flexible in its business
decisions. As a general rule, it will apply those funds first which have been raised earlier. Generally, it is a
management decision of CHORUS on a case-by-case basis which company should pursue the
investment. Such decision takes commercial and strategic reasons into consideration, such as potential
synergy effects, but also the long-term development of the asset portfolios of CHORUS, CHORUS
SICAV-SIF or the professional third party investors, with a view to optimize profits (bearing in mind that
164
CHORUS will indirectly benefit from investments executed for CHORUS SICAV-SIF or professional third
party investors through the fees generated by asset management services regarding such investment as
well). Depending on the size of the possible investment, an alternative could be co-investments of
CHORUS with either CHORUS SICAV-SIF or professional third party investors. CHORUS believes that
the opportunities resulting from the possibility to execute co-investments are much larger than any
potential conflict of interest which might arise from the fact that CHORUS is trying to identify suitable and
attractive investment opportunities in the renewable energy sector for its own investments, for
investments for the sub-funds of CHORUS SICAV-SIF and potentially also for investment vehicles of
professional third party investors by applying the necessary flexibility, and that CHORUS is able to
balance any such potential conflict of interest (see also A.III.3. ‘‘Risk Factors—Risks Related to the
Reorganization of the CHORUS Group pre-IPO—CHORUS may be exposed to conflicts of interest in
connection with investment opportunities regarding new renewable energy facilities as a result of its
institutional fund management/advisory services in parallel to acquisitions for its ‘‘own’’ asset portfolio’’.).
c.
Selection and Evaluation Process; Implementation
The basic criteria CHORUS applies when assessing an investment opportunity in a renewable
energy park include the size of the project, its geographic location, the economics of the park (yield, cash
flow, costs), input factors (sun/wind) and the general market environment. Furthermore, CHORUS
analyzes the regulatory framework in such countries which promote a sustainable subsidization of
renewable energy, including the duration and expected stability of the subsidization (term) as well as
other incentives. CHORUS’ investment decision is also influenced by the prior experience with the
relevant project developer and the general contractor. CHORUS attaches great importance to the quality
of the materials used for the critical facility components such as the solar panels, inverters or wind
turbines, which in turn, in CHORUS’ opinion, reduces the risk of malfunction or breakdown of elements.
CHORUS prefers parks equipped with high quality brand components which entail producer guarantees
from reputable suppliers. In addition, a financing structure of the SPV which operates the solar or wind
park in line with customary market practice is essential for CHORUS, since the financing is taken out by
the SPV and as such is indirectly assumed by CHORUS when acquiring the SPV (the existing SPV
financing will usually not be replaced following the acquisition); see M.V.4. ‘‘—Financing of the
Development and Construction of Solar and Wind Parks’’.
165
As per March 31, 2015, CHORUS had the following pipeline of investment projects in the
renewable energy field it is working on at various stages and where it is conducting an in-depth review
and evaluation process:
Country
Type of renewable energy
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Wind
Wind
Wind
Wind
Wind
Wind
Wind
Wind
Wind
Wind
Wind
Wind
Wind
Wind
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Germany ..............................................
Solar
Solar
Solar
Solar
Solar
Solar
Solar
Solar
Solar
Solar
Solar
Norway ................................................
Hydro
Austria .................................................
Austria .................................................
Austria .................................................
Austria .................................................
Wind
Wind
Wind
Wind
France .................................................
France .................................................
France .................................................
France .................................................
Wind
Wind
Wind
Wind
France .................................................
France .................................................
France .................................................
France .................................................
France .................................................
France .................................................
Solar
Solar
Solar
Solar
Solar
Solar
UK ......................................................
UK ......................................................
UK ......................................................
UK ......................................................
UK ......................................................
Solar
Solar
Solar
Solar
Solar
Finland.................................................
Finland.................................................
Finland.................................................
Finland.................................................
Wind
Wind
Wind
Wind
Total ...................................................
Capacity (MW)
10 MW
4 MW
21 MW
6 MW
11 MW
51 MW
33 MW
18 MW
12 MW
3 MW
8 MW
23 MW
10 MW
23 MW
233 MW
5 MW
8 MW
3 MW
5 MW
6 MW
4 MW
2 MW
3 MW
8 MW
8 MW
10 MW
63 MW(5)
55 MW
55 MW
17 MW
16 MW
7 MW
20 MW
60 MW
10 MW
7 MW
17 MW
8 MW
42 MW
5 MW
5 MW
6 MW
1 MW
9 MW
12 MW
38 MW
7 MW
5 MW
5 MW
5 MW
5 MW
27 MW
30 MW
17 MW
33 MW
21 MW
100 MW
618 MW
Status
Negotiations(1)
Negotiations(1)
SPA(4)
Exclusivity(1)
Negotiations(1)
Exclusivity(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Due Diligence(3)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Exclusivity(2)
Negotiations(1)
Negotiations(1)
Exclusivity(2)
Negotiations(1)
Due Diligence(3)
Negotiations(1)
Exclusivity(2)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Exclusivity(2)
Exclusivity(2)
Exclusivity(2)
Negotiations(1)
Negotiations(1)
Negotiations(1)
Due Diligence(3)
Negotiations(1)
Negotiations(1)
(1)
‘‘Negotiations’’ means CHORUS has entered into commercial negotiations regarding a potential purchase of the park/facility.
(2)
‘‘Exclusivity’’ means the phase, often after submission of an offer by CHORUS which is still subject to conditions and
confirmations, during which CHORUS has received exclusive bidder status. During this phase all figures in the business
166
calculation are carefully re-examined and reviewed for plausibility by CHORUS’ risk management team, which diligently
challenges and verifies the calculation assumptions and the information provided by the seller.
(3)
‘‘Due Diligence’’ means the phase (often during the exclusivity period) in which CHORUS commissions external engineers
and lawyers to conduct a technical and legal due diligence supporting the in-depth quality assessment of the target.
(4)
‘‘SPA’’ (share purchase agreement) means that CHORUS is either in final negotiations regarding the signing of a share
purchase agreement relating to the shares of a special purpose vehicle operating the park/facility or that the share purchase
agreement has been signed but is subject to a condition precedent which has not yet been fulfilled (the transaction has not
closed).
(5)
The relatively small size of solar projects results from the limit of subsidization for facilities with a capacity larger than 10 MW;
see L.II.2. ‘‘Regulation—Regulatory Environment and Legal Framework in Germany—Feed-in Tariff System.’’.
CHORUS’ investment management team permanently screens the renewable energy market in
Europe and in selected regions abroad. In its search and identification process for new suitable
investment opportunities, CHORUS benefits from long-standing relationships with experienced project
developers and consultants in Germany, Europe and other countries which CHORUS deems to be
potential investment areas in the future. It is an important aspect of the work of certain of CHORUS’
employees to build and foster such relationships.
CHORUS applies a careful step-by-step selection process with respect to its investments, which
CHORUS believes allows it to develop a comparatively reliable income and liquidity planning for the
relevant solar or wind parks to be acquired. For the implementation, CHORUS relies on the in-house
expertise of its investment and risk management team but also engages external technical and legal
advisors.
CHORUS estimates that more than 1,000 investment opportunities in the renewable energy
sector are offered to it per year. After an initial pre-selection of the best assets offered based on factors
like their location, size, technical components, project status and profitability, approximately 700-800 of
these projects are sorted out initially. The remaining approximately 200-300 projects are subject to a
more intensive and detailed evaluation process. Ultimately, for between approximately 50 and 80 projects
an indicative and non-binding offer is submitted to the seller on the basis of a short presentation by the
seller on the project.
If a project continues after the indicative offer, in a further step a more detailed business
calculation is prepared taking into account the information provided by the developer / seller, own data of
CHORUS and external sources, which serve as a basis for further pre-selection. Part of this evaluation
process are the reports on the expected energy yield of the facility (Ertragsgutachten) commissioned by
the seller. The submission of a final offer is based and subject to the outcome of this further evaluation
and review process.
If the sales process continues after submission of a confirmatory offer and the seller grants
exclusivity to CHORUS, all figures in the business calculation are again carefully re-examined and
reviewed for plausibility by CHORUS’ risk management team, which diligently challenges and verifies the
calculation assumptions and the information provided by the seller. In addition, a technical and legal due
diligence is conducted by external engineers and lawyers. All construction and operating permits, the
feed-in contract (for certain jurisdictions outside Germany) and all rights necessary for construction and
operation of the targeted power park are examined and in-depth quality assessments of the structural
components are obtained. As part of the technical due diligence, CHORUS’ external advisors critically
review and challenge the existing energy yield reports of the facility commissioned by the seller and
deliver an own report on their assessment. In case of a material deviation of the average values in the
energy yield reports made available by the seller from CHORUS’ own assessments in terms of yield and
forecasts, CHORUS will try to negotiate a reduction of the purchase price or other economics with the
seller or will not pursue the investment any further, as the case may be.
Based on its final offer and subject to the outcome of the further due diligence, CHORUS
negotiates the acquisition documentation, agrees on the final price and ultimately acquires the shares in
the SPV owning the solar or wind park in question through a share purchase agreement from the
developer / seller. Closing of the acquisition remains conditional upon completion of the erection and grid
connection of the park. Key details CHORUS focuses on in its negotiations of the final contractual
documentation include appropriate warranties and guarantees of the seller regarding the status of the
park and corresponding purchase price adjustments in the event of construction delays and/or other
issues delaying the start of the park’s operations.
167
At the end of CHORUS’ in-depth evaluation process, usually a decision paper is prepared and
presented to the Management Board, or, in case the project shall be acquired by one of the Luxembourg
sub-funds or other investment vehicles of professional third party investors managed by CHORUS, to the
investment advisory board. Following a positive decision of the Management Board or the investment
advisory board, respectively, the agreed share purchase agreement is signed.
For the construction works at the facility, the SPV typically secures engineering, procurement
and construction services (EPC) of third party service providers prior to completion of the acquisition.
From CHORUS’ experience it is essential to exercise tight construction progress control in case of an
acquisition of a ‘‘ready to build’’ project, to ensure a successful and timely completion of the construction
work and start of operations. Accordingly, after execution of a share purchase agreement for a ‘‘ready to
build’’ power plant project, a construction progress control process is established and conducted by
CHORUS and its advisors until the facility has started operations. As part of such process, CHORUS is
also involved in, and usually commissions engineers which are physically present at, the final inspections
and the acceptance procedure of the construction works of a solar or wind park, in order to avoid any
irregularities to the detriment of CHORUS. Subsequent to the start of operations, CHORUS ensures that
all key structural components of the power parks are examined again before the contractual warranty
period under the respective share purchase agreement expires.
4.
Financing of the Development and Construction of Solar and Wind Parks
The financing of the development and construction of a solar or wind park is typically secured by
the seller prior to the completion of the acquisition of a wind or solar park. The financing typically is
composed of a certain percentage of equity and external debt taken out by the SPV holding the assets.
CHORUS does not prefer a certain equity to leverage ratio of its investments. Generally, the leverage
ratio for solar parks is higher compared to wind parks. In the German market for example, a split of the
total financing amount for a solar park into 20-30% equity and up to 80% debt financing and for a wind
park into 25-35% equity and 65-75% debt financing would be standard. These are also the ranges which
CHORUS generally accepts for target SPVs with respect to its investments in Germany in its selection
and evaluation process.
The respective SPV typically enters into loan agreements for their project financing from banks.
The term of the financing contracts varies throughout the different countries due to the different periods of
guaranteed feed-in tariffs or other governmental incentives for renewable energy. As a general rule, the
credit agreements do not provide for a longer term than the term of the guaranteed feed-in tariff and
typically have an average term of 12 to 18 years and provide for a fixed interest rate, often for 10 years. In
Germany but also with respect to renewable energy facilities acquired by CHORUS in other countries,
such loans often are backed by (subsidized) credit programs of KfW, if certain criteria are fulfilled. These
programs are tailored to provide a subsidization of renewable energy at low interest rates. Based on
selected offers received from its investment pipeline, CHORUS expects the interest rates applicable for
long-term financings taken out by renewable energy assets on the market to currently range between
1.55% to 2.55% p.a. as a result of the currently prevailing low interest rate phase in Europe.
The SPV which directly operates the solar or wind park and not the CHORUS Group entity which
acquires the operating SPV is the borrower under the financing agreements. CHORUS acquires the
existing financing as part of its acquisition of the SPV and takes such financing into consideration when
calculating the purchase price. The financing agreements typically do not provide for recourse
possibilities against the seller of the SPV (who arranged for the SPV taking out the financing) or for
CHORUS or other members of the CHORUS Group assuming the seller’s position as shareholder of the
SPV. Guarantees and other securities typical for non-recourse project financings, such as pledges of the
shares in the SPV and security transfers of claims for payment for the electricity fed into the grid by the
SPV, typically are granted to the financing banks.
5.
Maintenance and End of Operations
The technical maintenance of the acquired solar and wind parks typically is outsourced to local
third party service providers on the basis of service agreements with a term of several years. While
maintenance of solar parks requires only very limited attention due to the fact that the different parts of a
solar panel and an inverter typically are subject to only minimal wear and tear, the maintenance of wind
facilities and their component is more central for the operation of CHORUS’ wind parks.
168
a.
Full Maintenance Agreements (Vollwartungsverträge) for Wind Parks
The maintenance and operability of CHORUS’ wind parks is typically secured through so-called
full maintenance agreements (Vollwartungsverträge), which the SPV enters into with the producers of the
wind turbines. In these agreements, the producers of the wind turbines agree to regularly inspect the wind
turbines and repair and, if necessary, replace any parts which suffered from wear and tear or defects, and
they usually provide a guarantee on a 97% technical operability of the entire wind park per year for a
period of 15 years. If such guaranteed level of technical operability has not been met with respect to the
entire park (irrespective of weather conditions), the producer has to pay to the SPV a certain agreed
amount of compensation.
b.
End of Operations
CHORUS intends to operate its parks as long as this is economically reasonable and the parks
are still profitable. The term of the lease agreements for the properties on which the parks are located
typically corresponds to the term of the governmental incentives for the energy produced by the facility.
However, CHORUS usually tries to negotiate a flexible option with the lessor to extend the lease
agreements for additional years to preserve optionality. After the end of the lease, CHORUS is generally
obliged to dismantle the facilities. As at the date of this Prospectus, CHORUS has not dismantled any of
its facilities in practice but expects the dismantling costs for solar facilities to be equal to or lower than the
scrap value of the solar panels and additional installed materials such as cabling. CHORUS has built and
builds reserves on its consolidated balance sheet under IFRS, which as at March 31, 2015 amounted to
e3,861 thousand (under non-current provisions), the large majority of which relates to the expected
dismantling costs for solar and wind parks (asset retirement obligations).
6.
Operations
a.
Overview
CHORUS’ operations and asset management services provided for the CHORUS Portfolio and
the Managed Portfolio (or entities held by investment vehicles of professional third party investors) in
general comprise commercial management services as well as the facility management. These services
are assumed by CHORUS immediately after completion of the acquisition of the park (i.e., upon
commencement of operations). The technical operation and maintenance of the facilities typically is
outsourced to local third party providers.
b.
Commercial Management Services
CHORUS’ commercial management services (kaufmännische Betriebsführung) include:
•
Management and administrative handling of the SPV as the legal entity that operates the
solar or wind park;
•
Accounting services and preparation of the annual financial statements of the SPV as well as
support with the preparation of the tax returns and coordination with auditors and tax
advisors;
•
Securing rights the owning entity has under the share purchase agreement entered into with
the seller regarding the SPV owning the solar or wind park;
•
Payment transactions and liquidity management (including forecasts);
•
Regular consultation with the financing partners of the solar or wind park;
•
Regular evaluation of the Net Asset Value (NAV) of the park, if required.
CHORUS strongly believes in the importance of constant surveillance and prompt and
transparent reporting on any of its parks. The results of CHORUS’ data evaluation processes for a certain
park are compared with the original planning. In the event of negative deviations between the targeted
and actual figures beyond certain tolerance limits, the asset management team identifies the cause of the
169
deviation and sees to the implementation of counter measures, if necessary. On a regular basis, all data
evaluation and performance reports are assembled in a formal report, which is submitted to the
Management Board for its ongoing information and review.
c.
Facility Management Services
The facility management services rendered by CHORUS comprise, inter alia:
d.
•
Supervision, steering and control of the local technical operations manager (Betriebsführer),
in particular supervision of the online-monitoring conducted by the technical operations
manager;
•
Park controlling and inspection, in particular, analysis, review of the plausibility and
evaluation of the technical performance by using irradiation values and wind indices;
comparison of actual and targeted yields (reports on energy yield);
•
Forecast and determination of important economic indicators for the commercial
management;
•
Ensuring proper documentation of the park (fault reports and respective removal reports,
care-, maintenance- and repair reports, inspection reports, changes of the technical layout);
•
Active risk management;
•
Realization of potential technical and economic improvements;
•
Clarification and negotiation of claims of authorities, grid operators, lessors, neighbors (if
required, on-site);
•
Contract management (monitoring of due dates, time periods and appointments);
•
Warranty management, including the assertion and enforcement of claims against
producers, general contractors and other parties;
•
Monitoring, assessment and approval of incoming invoices and billing of the grid operator;
•
Insurance management (ongoing optimization of the insurance coverage as well as
examination and monitoring of any entitlement to benefits);
•
Evaluation, monitoring and, if appropriate, implementation of direct marketing possibilities;
•
Provision of asset specific data for reporting purposes to financing partners;
•
If appropriate, commissioning and monitoring of external service providers, such as a
security firm.
Technical Operation and Maintenance
The technical operation of the parks (technische Betriebsführung) typically is outsourced to
external local service providers as ‘‘technical managers’’, which render these services in close
coordination with CHORUS against an annual handling fee. Often the seller of the renewable energy park
itself assumes these services or has engaged a respective service provider already prior to the
completion of the acquisition of the solar or wind park by CHORUS.
Although the technical operations manager is primarily responsible for the technical operation
and maintenance of the park and its permanent surveillance, CHORUS also has the possibility to monitor
the performance of any of its solar or wind parks through online access via the same channels as the
technical manager and to evaluate such data. This online access allows immediate reactions to changed
wind and weather conditions but also to potential disturbances and minimizes the risk of undiscovered
long-lasting defects. The remote access also permits CHORUS to give advice to the technical manager
170
suggesting immediate measures. From CHORUS’ view, it may be possible in the future to expand its
asset management services to certain parts of the technical operations management and provide a more
comprehensive service offering from one hand (see M.IV. ‘‘—Strategy’’).
VI.
ADVISORY SERVICES
1.
Overview
CHORUS’ fee-based advisory services consist of the initiation of funds for institutional investors
and the tailoring and structuring of investments for professional investors in the field of renewable energy
(‘‘customized investment structuring’’). Subsequent to such structuring work, CHORUS typically provides
asset management services (see M.V.6. ‘‘—Operations’’) to such institutional funds and other investment
vehicles of professional investors and the operating companies held by these.
CHORUS has concentrated its advisory services and asset management services, and accounts
for the results of such activities, in its business line ‘‘asset management’’.
2.
Fund Initiation Activities
As part of its institutional fund initiation activities and as a first success, CHORUS has initiated
and set-up CHORUS SICAV-SIF, a regulated Luxembourg institutional umbrella fund focused on
European renewable energy investments. In April 2014, CHORUS SICAV-SIF received its final
regulatory approval; see M.VI.2.a. ‘‘—CHORUS SICAV-SIF’’. For the future, CHORUS intends to
continue with the initiation of additional institutional funds and the provision of asset management
services for such funds (see M.IV. ‘‘—Strategy’’).
a.
CHORUS SICAV-SIF
CHORUS SICAV-SIF, a self-managed investment company with variable capital — Specialized
investment fund (Société d’investissement à capital variable – Fonds d’investissement spécialisé – SIF),
having its registered office in Munsbach, Luxembourg, was incorporated on April 4, 2014. The company is
subject to the supervision of the Luxembourg Commission for the Supervision of the Financial Sector
(Commission de Surveillance du Secteur Financier – ’’CSSF’’) and is authorized under Luxembourg law.
The fund is led and managed by an administrative board (conseil d’administration) and is subject to
quarterly reporting requirements.
CHORUS SICAV-SIF plans to assemble a diversified portfolio of renewable energy facilities, in
particular in the areas of solar and on-shore wind energy, in selected central European heartlands with a
concentration on Germany. The general investment focus of CHORUS SICAV-SIF is similar to the one
applied by CHORUS for its own investments (see M.V.3.a. ‘‘—Energy Generation-Investment Strategy
and Implementation of Investments-Investment Focus and Criteria’’), with slightly less flexibility as to,
e.g., leverage of the target and size of the investment, and also subject to the requirement to have
CHORUS SICAV-SIF’s investment guidelines to be approved by the CSSF. The targeted size of
individual facilities to be acquired by CHORUS SICAV-SIF ranges from approximately e10 million to
approximately e35 million.
As a SIF (which ist often organized as an ‘‘umbrella fund’’), CHORUS SICAV-SIF is a single legal
entity comprising two or more compartments (sub-funds), each with different features and a different
investment strategy. For two of its sub-funds, CHORUS SICAV-SIF targets exclusively professional
investors with a minimum investment per sub-fund of e2.5 to e3 million. For its recently set-up third
sub-fund a minimum investment of e200,000 applies. In general, the CHORUS Group as asset manager
also agreed to invest in CHORUS SICAV-SIF at least 1% of the funds raised in any fund raising up to a
total amount of e1 million in order to proof its own engagement. The CHORUS sub-funds are set up
typically for a ten years term as of the final closing of the fund raising. Furthermore, the administrative
board of CHORUS SICAV-SIF typically establishes an investment advisory board for the sub-funds,
which is composed of certain representatives of the professional investors and/or external experts and
needs to be consulted with respect to certain decisions to be taken.
CHORUS SICAV-SIF has as at the date of this Prospectus so far formed three sub-funds:
CHORUS Infrastructure Fund S.A. SICAV-SIF — RENEWABLES EUROPE I (‘‘CHORUS Renewables
Europe I’’), CHORUS Infrastructure Fund S.A. SICAV-SIF RENEWABLES GERMANY I (‘‘CHORUS
171
Renewables Germany I’’) and most recently CHORUS Infrastructure Fund S.A. SICAV-SIF — CHORUS
Futura (‘‘CHORUS Futura’’).
CHORUS SICAV-SIF, through its three sub-funds, currently is invested in four wind parks in
Germany with a total capacity of 58.7 MW and one wind park in Finland with a capacity of 13.2 MW,
representing a total investment volume of more than e150 million.
b.
CHORUS Renewables Europe I
CHORUS Renewables Europe I has an initial term of ten years starting at the date of the final
closing. Such term can be extended. The diversified investment focus of CHORUS Renewables Europe I
is on renewable energy ready-to build turn-key facilities, which comprise in particular solar and on-shore
wind energy facilities. The regional focus of CHORUS Renewables Europe I lies on Germany and other
member states of the European Union or the European Free Trade Association (EFTA), which offer a
reliable and trusted economic and political environment. In total, CHORUS Renewables Europe I aspires
to assemble and hold a portfolio consisting of approximately 60% wind and approximately 40% solar
facilities throughout Europe.
c.
CHORUS Renewables Germany I
CHORUS Renewables Germany I also has an initial term of ten years starting at the date of the
final closing; such term can be extended. CHORUS Renewables Germany I’s investment focus lies on
on-shore wind energy facilities. The regional focus of CHORUS Renewables Germany I is Germany.
d.
CHORUS Futura
CHORUS Futura has an initial term of ten years starting at the date of the final closing, which term
can be extended. CHORUS Futura’s investment focus is on solar and onshore wind energy facilities. The
general regional focus of CHORUS Futura is Europe.
e.
CHORUS’ Role
CHORUS Clean Energy Advisor GmbH (‘‘CHORUS Advisor’’), a member of the CHORUS
Group, has been appointed as advisor for two of the three sub-funds for a period of five years; CHORUS’
appointment as advisor for the third sub-fund will occur upon the first closing of such fund. CHORUS
delivers its services against a fee. CHORUS Advisor provides portfolio management services to all
sub-funds, mainly consisting of asset sourcing, preparation of investment presentations and the
submission of investors’ reports. Furthermore, CHORUS renders its operations and asset management
services (see M.V.6. ‘‘—Operations’’) to the SPVs which own the parks and are held by such sub-funds
against a fee. Additionally, CHORUS receives for its services regarding the evaluation of a target solar or
wind park a success-based project structuring fee. According to CHORUS’ own market observations, the
typical fee volumes prevailing in the asset management markets in which CHORUS operates range from
3.50% to 6.00% of the invested equity for one-off project structuring and fund set-up fees and from 0.75%
to 1.50% of the invested equity for recurring asset management and fund advisory fees (each time
depending on the concrete leverage).
3.
Activities for Other Investment Vehicles
As further part of its advisory activities, CHORUS also tailors and structures investments in the
renewable energy sector for professional investors on an on-demand basis against a fee (‘Tailored
Investment Solutions’). In these cases, CHORUS identifies suitable investment opportunities and
coordinates the structuring of the legal framework of the investment opportunity according to the specific
needs of the clients. Depending on the specific requirements of the clients, these structuring services may
include advice as to financing structures, choice of jurisdiction of incorporation of the investment vehicle
and funding; for these services, CHORUS typically reverts to external legal and tax counsel. Following the
investment, CHORUS typically provides commercial management and facility management services to
the SPVs operating the acquired assets (see M.V.6. ‘‘—Operations’’) and reports on the performance of
the investment to the clients.
172
VII.
INTELLECTUAL PROPERTY RIGHTS
AND
IT
CHORUS owns the word and figurative mark ‘‘CHORUS Clean Energy’’ as well as several
internet domains, including ‘‘www.chorus.de’’ and ‘‘www.chorus-gruppe.de’’. Apart from that, neither
CHORUS nor any of its subsidiaries owns any patents, licenses and trademarks and neither of them is
dependent on any such intellectual property rights of third parties for its business. For its operations,
CHORUS uses exchangeable standard software.
VIII.
FIXED ASSETS
AND
REAL PROPERTY
The Issuer itself does not own real property. Except for two operating companies, which own
properties in Germany belonging to the solar park ‘‘Bitterfeld’’ (550 sqm.) and to the wind park
‘‘Ruhlkirchen’’ (approximately 2,400 sqm. and approximately 60,000 sqm.), the local project SPVs of the
CHORUS Group operating the solar or wind parks do not own real property, either.
CHORUS’ headquarters in Neubiberg near Munich (parts of an office building) are leased from
PELABA Vermögensverwaltungs GmbH & Co. KG, a company affiliated with the Issuer’s chairman of the
Supervisory Board, Peter Heidecker (also see P.IV. ‘‘Related Party Transactions—Lease Agreement
with PELABA Vermögensverwaltungs GmbH & Co. KG’’). The lease agreement has a fixed term until
2019 with prolongation options of one year (each) if not terminated with six months’ notice. The annual
rent is customary for such type of office space. The lease agreements covering the properties on which
the solar and wind parks of CHORUS’ SPVs are erected, normally have a fixed term between 20 and
25 years and in the majority of cases provide for extension options (see M.V.5.b. ‘‘—Energy GenerationMaintenance and End of Operations—End of Operations’’).
IX.
EMPLOYEES
During the five month period ended May 31, 2015, the Issuer and its consolidated subsidiaries
employed on average a total of 30 employees (excluding temporary agency employees
(Leiharbeitnehmer) and freelancers). All of the employees are working at the headquarters of the
CHORUS Group in Neubiberg, Germany, in management and administration. Between May 31, 2015
and the date of this Prospectus, there have been no material changes in the number of employees.
In 2014, the CHORUS Group employed on average 28 full-time employees, in 2013 on average
27 full-time employees and in 2012 on average 25 full-time employees.
The Issuer does not have any works councils (Betriebsräte) and has not entered into pension
agreements or commitments with its active or inactive employees.
X.
MATERIAL CONTRACTS
1.
Contribution Agreements
On December 4, 2014 and January 7, 2015, respectively, the general shareholders’ meetings
(Hauptversammlungen) of the Issuer resolved to increase the share capital of the Issuer from e50,000 by
e585,500 to e635,500 against cash contribution by 20 German limited liability partnerships
(Kommanditgesellschaften) (the Fund KGs, as already defined)11 and from e635,500 by e16,422,503 to
e17,058,003 and then from e17,058,003 by e390,536 to e17,448,539 against contributions in kind (i) by
the Fund KGs contributing their direct and indirect subsidiaries operating the solar and wind parks in
Germany, Italy, Austria and France (such companies together, the ‘‘Operating SPVs’’) and assigning
loan agreements (the ‘‘Contributed Loans’’) between the Fund KGs (as lender) and the Operating SPVs
(as borrowers) (Übertragung des Vertragsverhältnisses im Ganzen), including the claims for repayment
of these loans against the Operating SPVs, (ii) by the shareholders of CHORUS GmbH contributing the
shares in CHORUS GmbH (and thereby indirectly its subsidiaries), (iii) by REGIS Treuhand &
Verwaltung GmbH für Beteiligungen (‘‘REGIS’’) (as trustee for one investor not affiliated with the
CHORUS Group) and (iv) the members of the Management Board, i.e., by Heinz Jarothe, Holger Götze
and Helmut Horst, contributing their interests held in CHORUS CleanTech GmbH & Co. Solarpark
Warrenzin KG (‘‘Warrenzin KG’’), one of the Operating SPVs. See also N. ‘‘Reorganization of the
CHORUS Group’’.
11
Namely: CHORUS CleanTech Solar GmbH & Co. KG, CHORUS CleanTech Solar GmbH & Co. 2. KG, CHORUS CleanTech
Solar GmbH & Co. 3. KG, CHORUS CleanTech Solar GmbH & Co. 4. KG, CHORUS CleanTech Solar GmbH & Co. 5. KG,
CHORUS CleanTech Solar GmbH & Co. 6. KG, CHORUS CleanTech Solar GmbH & Co. 7. KG, CHORUS CleanTech
Solar GmbH & Co. 8. KG, CHORUS CleanTech Solar PP GmbH & Co. 3. KG, CHORUS CleanTech Solar PP GmbH & Co. 4. KG,
CHORUS CleanTech Wind GmbH & Co. 10. KG, CHORUS CleanTech Wind GmbH & Co. 11. KG, CHORUS CleanTech Wind
PP GmbH & Co. 6. KG, CHORUS CleanTech Wind PP GmbH & Co. 7. KG, CHORUS CleanTech Wind PP GmbH & Co. 9. KG,
CHORUS CleanTech Portfolio GmbH & Co. KG, CHORUS Equity CleanTech GmbH & Co. KG, CHORUS Equity
CleanTech GmbH & Co. 2. KG, CHORUS CleanTech Solar PP GmbH & Co. 5. KG and CHORUS CleanTech Solar PP GmbH &
Co. 12. KG.
173
On December 4, 2014, the Issuer, the Fund KGs, the shareholders of CHORUS GmbH, REGIS
(as trustee for one investor not affiliated with the CHORUS Group), Holger Götze and Helmut Horst
entered—with the approval of the Operating SPVs—into contribution agreements (as amended on
December 29, 2014 and January 7, 2015), pursuant to which the Fund KGs, the shareholders of
CHORUS GmbH, REGIS, Holger Götze and Helmut Horst contributed their shares held in the Operating
SPVs and in CHORUS GmbH as well as the Contributed Loans with effective date December 30, 2014 (at
the latest) in fulfillment of their obligation resulting from the subscription of new shares of the Issuer; see
also N. ‘‘Reorganization of the CHORUS Group’’.
2.
Investment Advisory Agreements with CHORUS SICAV-SIF
Since April 2014, CHORUS Advisor provides advice to the administrative boards (conseil
d’administration) of CHORUS Renewables Europe I and CHORUS Renewables Germany I on the
selection, analysis and evaluation of suitable assets to be acquired by the sub-funds on the basis of
investment advisory agreements. CHORUS Advisor receives different fees for its services. The
agreements have an initial term of five years, starting at the day of the first closing of the fund raising.
Unless terminated, the advisory activities will automatically be extended for another five year period after
expiry of the initial term.
XI.
LEGAL PROCEEDINGS
Companies of the CHORUS Group are from time to time a party to legal proceedings in the
normal course of business, which are typically related to the acquisition and operation of solar and wind
parks. However, except as set forth below, CHORUS Group is currently not and has not been in the past
twelve months, a party to any governmental, legal or arbitration proceedings (including any such
proceedings which are pending or threatened of which CHORUS is aware) which may have, or have had
in the recent past, significant effects on the Company’s and/or the Group’s financial position or
profitability.
In 2014, the Italian legislator decided to reduce the promotion for solar facilities with retrospective
effect for facilities that had already entered into operation (see L.III.2. ‘‘Regulation—Regulatory
Environment and Legal Framework in Italy—Incentives to Solar Facilities’’). Operators of existing solar
facilities were required to make a choice between certain cuts of the feed-in tariff rate, the duration of
reception of the feed-in tariff or the feed-in tariff for a certain time period. CHORUS decided not to make
any choice, which led to an automatic reduction of the feed-in tariff rates applicable to its Italian solar
parks by 7% to 8% depending on the capacity of the solar parks. In December 2014, all Italian holding
companies and SPVs of the affected solar parks challenged the respective provisions in the Italian law
before the Latium Regional Administrative Court of Rome (Tribunale Amministrativo Regionale del Lazio,
Roma), arguing that the respective Italian law and the Decrees implementing such law violate EU and
international law as well as the Italian constitution (La Costituzione della Republica Italiana). A first
hearing took place in March 2015. The length and outcome of these proceedings cannot be predicted.
CHORUS Vertriebs GmbH, an indirect subsidiary of the Issuer, is subject to a tax audit
(Betriebsprüfung) for the years beginning from 2007. CHORUS GmbH, as the taxable entity, has entered
into an indemnification agreement with PELABA Anlagenverwaltungs GmbH & Co. KG (a company
affiliated with our chairman of the Supervisory Board, Peter Heidecker) and Heinz Jarothe (a member of
our Management Board), pursuant to which PELABA Anlagenverwaltungs GmbH & Co. KG and Heinz
Jarothe have agreed to indemnify CHORUS GmbH against certain tax payment obligations and any
expenses incurred or to be incurred because of the legal defense in connection with tax proceedings
involving CHORUS Vertriebs GmbH.
XII.
INSURANCE
CHORUS maintains insurance coverage for the operation of its solar and wind parks that
CHORUS deems to be appropriate and in line with industry practice. CHORUS’ insurance policies include
a general liability insurance, which also comprises environmental liability insurance, as well as an all risks
insurance, which is a type of property insurance covering, inter alia, interruption of operations.
In addition, CHORUS has taken out directors and officers insurance for the members of its
Management Board and Supervisory Board, and certain other senior officers of the CHORUS Group
companies, with a total coverage of approximately e10 million per year. The directors and officers
174
insurance covers financial losses that may arise in the course of the exercise of the corporate duties of the
insured persons. As required under applicable German law, each member of CHORUS Management
Board remains personally responsible, in the event they are adjudged to have personal liability, for 10% of
the total amount of such liability, up to an amount that equals one point five times such member’s total
annual fixed remuneration from the CHORUS Group.
CHORUS believes, according to its current knowledge that the existing insurance coverage,
including the level and conditions of coverage, are standard for CHORUS’ industry and provide
reasonable protection, taking into account the costs for the insurance coverage and the potential risks of
CHORUS’ business operations. However, CHORUS cannot provide any assurances that losses will not
be incurred or that claims will not be filed against CHORUS and its Group companies which exceed the
scope of the relevant existing insurance coverage.
175
N. REORGANIZATION OF THE CHORUS GROUP
I.
THE CHORUS GROUP
PRIOR TO THE
REORGANIZATION
Since 2006, CHORUS GmbH initiated and structured the Fund KGs, whose limited partner
interests (Kommanditanteile) were offered to investors on the basis of prospectuses. Advised by
CHORUS, the Fund KGs used their raised capital in particular to acquire shares in the Operating SPVs
set up by developers of solar and wind parks (see M.V.3. ‘‘Business—Energy Generation—Investment
Strategy and Implementation of Investments’’), which hold and operate solar and wind parks in Germany,
Italy, Austria and France.
Prospective investors had either the opportunity to directly invest into the Fund KGs as limited
partners (Kommanditisten) or to enter into a trust and administration agreement with REGIS, which acted
as limited partner in trust (Treuhandkommanditistin) for the investors. General partners (Komplementäre)
of the Fund KGs were several other subsidiaries of CHORUS GmbH, namely CHORUS CleanTech Solar
Verwaltungs GmbH, CHORUS CleanTech Energieanlagen Verwaltungs GmbH and CHORUS
CleanTech Equity Verwaltungs GmbH.
II.
THE REORGANIZATION
In 2014, CHORUS GmbH decided to bundle the assets of the Fund KGs managed by CHORUS
under a holding entity and explained and presented its decision to the limited partners of the Fund KGs.
The main intention was to allow investors of the Fund KGs to benefit from a diversification of their
investment portfolio and their investment risk. Furthermore, through a contemplated listing of the new
holding entity on the regulated market of a stock exchange, investors should receive a possibility to freely
dispose of their investment prior to their agreed fixed term of investment in the Fund KGs.
Such reorganization of the CHORUS Group (the ‘‘Reorganization’’) was implemented in several
steps:
•
In a first step, PELABA Verwaltungs GmbH and Heinz Jarothe incorporated the Issuer in the
form of a German stock corporation (Aktiengesellschaft). Furthermore, PELABA
Verwaltungs GmbH sold and transferred its shares in the Issuer to PELABA
Anlagenverwaltungs GmbH & Co. KG, and PELABA Verwaltungs GmbH subsequently was
merged into CHORUS GmbH.
•
In a second step, all general partners of the Fund KGs were replaced by H&J
Energieportfolio Verwaltungs GmbH, an entity not controlled by CHORUS GmbH or any
other company of the CHORUS Group, as new general partner.
•
In a third step, REGIS, the limited partner in trust of limited partner interests
(Kommanditanteile) in the Fund KGs, was carved-out from the CHORUS Group by selling
and transferring all shares in REGIS to shareholders not controlled by CHORUS GmbH or
companies of the CHORUS Group.
•
In further steps, on December 4, 2014 and January 7, 2015, respectively, the general
shareholders’ meetings (Hauptversammlungen) of the Issuer resolved to increase the share
capital of the Issuer from e50,000 by e585,500 to e635,500 against cash contribution by
13 of the Fund KGs and from e635,500 by e16,422,503 to e17,058,003 and then from
e17,058,003 by e390,536 to e17,448,539 against contributions in kind (i) by the Fund KGs
contributing their interests in the Operating SPVs and assigning the Contributed Loans
between the Fund KGs and the Operating SPVs (Übertragung des Vertragsverhältnisses im
Ganzen), including the claims for repayment of these loans against the Operating SPVs,
(ii) by the shareholders of CHORUS GmbH contributing the shares in CHORUS GmbH (and
thereby indirectly also of CHORUS GmbH’s subsidiaries) and (iii) by REGIS (as trustee for
one investor not affiliated with the CHORUS Group) and the members of the Management
Board, i.e., by Heinz Jarothe, Holger Götze and Helmut Horst, contributing their interests
held in Warrenzin KG, one of the Operating SPVs. The existing shareholders of the Issuer
waived their subscription rights. The Fund KGs, the shareholders of CHORUS GmbH,
REGIS, Holger Götze and Helmut Horst were admitted to subscribe for the new shares. In
addition, on December 4, 2014, the general shareholders’ meeting (Hauptversammlung) of
176
the Issuer also formally approved the agreements pursuant to which PELABA
Anlagenverwaltungs GmbH & Co. KG and Heinz Jarothe contributed their shares in
CHORUS GmbH and Warrenzin KG to the Issuer pursuant to Section 52 of the German
Stock Corporation Act (Aktiengesetz) (so-called ‘‘post formation acquisition’’
— Nachgründung).
On December 4, 2014, the Issuer, the Fund KGs, the shareholders of CHORUS GmbH, REGIS
(as trustee for one investor not affiliated with the CHORUS Group), Heinz Jarothe, Holger Götze and
Helmut Horst entered–with the approval of the Operating SPVs–into contribution agreements (as
amended on December 29, 2014 and January 7, 2015), pursuant to which the Fund KGs, the
shareholders of CHORUS GmbH, REGIS, Heinz Jarothe, Holger Götze and Helmut Horst contributed
their respective shares held in the Operating SPVs and in CHORUS GmbH as well as the Contributed
Loans with effective date December 30, 2014 (at the latest) in fulfillment of their obligation resulting from
the subscription of new shares of the Issuer; see also M.X.1. ‘‘Business—Material Contracts—
Contribution Agreements’’.
On December 5, 2014, the Fund KGs that had subscribed for shares in the Issuer against cash
contributions made their cash contributions to the Issuer. In addition, based on a contractual agreement
between the Fund KGs and the Issuer, the Fund KGs paid an amount equal to nine times of such cash
contributions to the Issuer’s capital reserves pursuant to Section 272(2) no. 4 of the German Commercial
Code (Handelsgesetzbuch).
The capital increases and thereby the issuance of new shares became legally effective upon the
entry in the commercial register (Handelsregister) of the Issuer on February 23, 2015. See also
R.II. ‘‘Description of Share Capital and Related Information—Development of the Share Capital’’. As a
consequence, the shareholders of the Issuer (i.e., PELABA Anlagenverwaltungs GmbH & Co. KG and
Heinz Jarothe) increased their number of shares in the Issuer and the Fund KGs, REGIS (as trustee for
one investor not affiliated with the CHORUS Group), Holger Götze and Helmut Horst became direct
shareholders of the Issuer.
Following the share contributions to the Issuer, the Fund KGs distributed the shares they
received in the Issuer to those of the former Fund KG investors who had granted their prior consent to
such distribution and provided the required securities account information. To the extent former Fund KG
investors did not consent to such distribution, the respective Fund KGs are currently holding such shares
and each Fund KG investor continues to have the option to exchange its limited partner interest in the
respective Fund KG against a certain amount of shares in the Issuer held by such Fund KG. In addition,
several Fund KG investors are offering shares in the Company for sale as part of the Offering as Selling
Shareholders. The total number of shares in the Company held by all of the Fund KGs upon completion of
the Offering will be 1,707,727, equal to an aggregate shareholding of 5.45% in the Company’s registered
shares capital after implementation of the capital increase in connection with the Offering to create the
New Shares and exercise of the Greenshoe Option (also see O.I. ‘‘Shareholder Information—
Shareholder Structure’’).
177
O. SHAREHOLDER INFORMATION
I.
SHAREHOLDER STRUCTURE
Prior to the Offering, 20.73% of our ordinary shares are held by PELABA
Anlagenverwaltungs GmbH & Co. KG and by PELABA Ökofinanz GmbH (both companies affiliated with
Peter Heidecker, the chairman of our Supervisory Board) as well 4.20% by the Selling Shareholders
(through each of their Fund KGs). The Selling Shareholders offer their entire shareholding in the Offering.
The following table sets forth certain information with respect to the direct ownership of ordinary
shares of the Company before and after consummation of the Offering (assuming both no exercise of the
Greenshoe Option and full exercise of the Greenshoe Option):
Prior to the Offering
Upon completion of the Offering
Without exercise of Assuming full exercise
the Greenshoe
of the Greenshoe
Option
Option
Number Percent
Number Percent
Number
Percent
PELABA Anlagenverwaltungs
GmbH & Co. KG and PELABA
Ökofinanz GmbH(1) ...................
3,616,985
20.73
3,616,985
12.28
3,616,985
11.53
Management Board members(2) .....
426,392
2.44
426,392
1.45
426,392
1.36
CHORUS CleanTech Solar
GmbH & Co. 8. KG(3) ...............
754,244
4.32
403,246
1.37
403,246
1.29
Other Fund KGs(4) .......................
2,094,113
12.00
1,707,727
5.80
1,707,727
5.45
Former Fund KG shareholders(5) ...
10,556,805
60.50
10,556,805
35.85
10,556,805
33.66
Free float(6) ................................
-
- 12,737,384
43.25
14,647,312
46.71
100
31,358,467
100
Total ........................................ 17,448,539
100
29,448,539
(1)
PELABA Anlagenverwaltungs GmbH & Co. KG and PELABA Ökofinanz GmbH both are companies affiliated with the
chairman of the Supervisory Board, Peter Heidecker, which is why he is an indirect shareholder of the Company. PELABA
Anlagenverwaltungs GmbH & Co. KG holds a total of 3,598,388 shares in the Company, and PELABA Ökofinanz GmbH
indirectly holds a total of 18,597 shares in the Company.
(2)
Of the total of 426,392 shares (or 2.44% of the share capital prior to the Offering) held by the members of the Management
Board, Holger Götze holds 3,362 shares (or 0.02% of the share capital prior to the Offering), Heinz Jarothe holds 419,721
shares (or 2.41% of the share capital prior to the Offering) and Helmut Horst holds 3,309 shares (or 0.02% of the share capital
prior to the Offering). The members of the Management Board have informed the Company that they do not intend to
subscribe or acquire shares as part of the Offering.
(3)
CHORUS CleanTech Solar GmbH & Co. 8. KG is a German limited partnership set-up by CHORUS as a fund (Fund KG, as
defined). The figure shown for CHORUS CleanTech Solar GmbH & Co. 8. KG prior to the Offering also includes 350,998 of the
Offered Existing Shares, which are indirectly held by Selling Shareholders through their participation in CHORUS CleanTech
Solar GmbH & Co. 8. KG (see below O.II. ‘‘—The Selling Shareholders’’).
(4)
Other Fund KGs includes the remaining Fund KGs holding less than 3% of the shares in the Company prior to the Offering.
Furthermore, prior to the Offering only, this also includes a total of 386,386 of the Offered Existing Shares indirectly held by
Selling Shareholders through their participation in the respective Fund KGs.
(5)
Following the Reorganization of the CHORUS Group and prior to the date of this Prospectus, all Fund KGs holding shares in
the Company transferred large parts of the shares held in the Company to their fund shareholders as a distribution in kind, so
that such former Fund KG shareholders became direct shareholders of the Company and ceased being fund shareholders.
These former Fund KG shareholders are not bound by a lock-up obligations regarding their shares in the Company (see also
A.IV.3. ‘‘Risk Factors—Risks relating to the Offering and the Shares—Any future sales of the Issuer’s shares by its existing
shareholders or investors acquiring shares in the Offering could depress the market price of the Issuer’s shares’’). The amount
of shares of the Company shown is the amount distributed to former Fund KG shareholders across all Fund KGs as per
June 15, 2015 (taking into account failed distributions until that point in time). Post such share distribution, no individual former
fund shareholder holds more than 3% in the share capital in the Company.
(6)
The number of shares shown in this table as free float does not include the 10,556,805 shares held by former Fund KG
shareholders (which are not bound by any lock-up regarding their shares) but only the New Shares and Offered Existing
Shares to be sold in the Offering.
Except as disclosed above, we are not aware of any person who, as of the date of this
Prospectus, directly or indirectly holds a stake in the Company’s equity (or associated voting rights) that is
178
required to be disclosed pursuant to Section 21 of the German Securities Trading Act
(Wertpapierhandelsgesetz).
II.
THE SELLING SHAREHOLDERS
A total of 80 investors of 13 Fund KGs (the Selling Shareholders, as defined) have indicated their
willingness to their respective Fund KGs and the Company to dispose of their entire indirect holding of
shares in the Company in connection with the Offering. In implementation thereof, the Selling
Shareholders have irrevocably agreed to offer, sell and transfer those Company shares to be distributed
to them by their Fund KG prior to completion of the Offering to investors in the Offering at the offer price.
The total number of existing ordinary bearer shares of the Company with no-par value (Stückaktien)
which is offered from the holdings of the Selling Shareholders (the Offered Existing Shares, as already
defined) as part of the Offering amounts to 737,384 (or 5.79% of the Offering, excluding Over-Allotments).
Upon completion of the Offering, the Selling Shareholders will cease to be shareholders of the Company
(unless they subscribe for New Shares of the Company in the Offering).
III.
MANAGEMENT STOCK OPTION PROGRAM
On March 10, 2015, the general shareholders’ meeting of the Company granted authority to the
Supervisory Board of the Company to set up a stock option program for the benefit of the members of the
Management Board of the Company. The Supervisory Board has not yet made use of such authorization.
For further details, see R.VII. ‘‘Description of Share Capital and Related Information—Stock Option
Program’’.
179
P. RELATED PARTY TRANSACTIONS
The Company maintains various business relationships with related parties. The following
business or legal relationships were concluded, in the view of the Company, on customary market terms.
I.
CONSULTING AGREEMENT
WITH
PELABA CONSULT GMBH
To further benefit from the long-standing expertise and personal network of Peter Heidecker, the
chairman of the Supervisory Board, the Company entered on March 2, 2015 into a consulting agreement
with PELABA Consulting GmbH, a company affiliated with Peter Heidecker. Pursuant to this agreement,
PELABA Consulting GmbH provides consulting services relating to the identification of potential targets
for future investments as well as – in coordination with the Management Board – the support of the
Company regarding distribution initiatives and measures. In return for his services, Peter Heidecker
receives a compensation on an hourly basis which the Company considers to be moderate.
II.
CONTRIBUTION AGREEMENTS
As part of the Reorganization of the CHORUS Group, on December 4, 2014, the members of the
Management Board, Holger Götze and Helmut Horst, entered together with the Issuer, the Fund KGs, the
shareholders of CHORUS GmbH, REGIS (as trustee for one investor not affiliated with the CHORUS
Group)—with the approval of the Operating SPVs—into contribution agreements (as amended on
December 29, 2014 and January 7, 2015), pursuant to which the Fund KGs, the shareholders of
CHORUS GmbH, REGIS, Holger Götze and Helmut Horst each contributed their shares held in the
Operating SPVs and in CHORUS GmbH as well as the Contributed Loans to the Issuer with effective date
December 30, 2014 (at the latest) in fulfillment of their obligation resulting from the subscription of new
shares of the Issuer. As to the background and the other implementation steps of the Reorganization of
the CHORUS Group, see N.II. ‘‘Reorganization of the CHORUS Group—The Reorganization’’.
III.
INDEMNIFICATION AGREEMENT WITH PELABA ANLAGENVERWALTUNGS
GMBH & CO. KG AND HEINZ JAROTHE
CHORUS GmbH, an indirect subsidiary of the Issuer, entered on October 27, 2014 into an
indemnification agreement with PELABA Anlagenverwaltungs GmbH & Co. KG, a company affiliated with
the Issuer’s chairman of the Supervisory Board, Peter Heidecker, and with the member of the
Management Board of the Issuer, Heinz Jarothe. The indemnification agreement relates to a tax audit
(Betriebsprüfung) of CHORUS Vertriebs GmbH, during which the Munich tax office took the view that
CHORUS Vertriebs GmbH was legally obliged to issue invoices related to the payment of commissions
with value added tax. PELABA Anlagenverwaltungs GmbH & Co. KG and Heinz Jarothe agreed to
indemnify CHORUS GmbH, as the taxable entity and sole shareholder of CHORUS Vertriebs GmbH,
against any subsequent value added tax payment obligations and any expenses incurred or to be
incurred because of the legal defense, in connection with this proceeding.
IV.
LEASE AGREEMENT
WITH
PELABA VERMÖGENSVERWALTUNGS GMBH & CO. KG
The Company entered on January 1, 2015 into a lease agreement related to the Company’s
headquarters in Neubiberg with PELABA Vermögensverwaltungs GmbH & Co. KG, a company affiliated
with the Issuer’s chairman of the Supervisory Board, Peter Heidecker. The lease agreement has a fixed
term until 2019 and thereafter is automatically extended for subsequent one year periods unless
terminated by either party on six months’ notice. The annual rent is customary for such type of office
space. See also M.VIII. ‘‘Business—Fixed Assets and Real Property’’.
V.
SHORT-TERM LOAN
GRANTED BY
PELABA VERWALTUNGS GMBH
On September 11, 2013 and December 23, 2013, CHORUS CleanTech Management GmbH
took out a short-term loan of e4,500 thousand from PELABA Verwaltungs GmbH, Neubiberg, a company
affiliated with the chairman of the Supervisory Board, Peter Heidecker, as temporary bridge financing for
the subsequent acquisition by CHORUS CleanTech Management GmbH of CHORUS Wind
Kappel GmbH & Co. KG, Germany. The loan was granted at arm’s length terms and was subsequently
repaid in full on July 17, 2014.
180
VI.
MERGER AGREEMENT
WITH
PELABA VERWALTUNGS GMBH
As one step of the Reorganization (see N. ‘‘Reorganization of the CHORUS Group’’),
CHORUS GmbH entered into a merger agreement (Verschmelzungsvertrag) with PELABA
Verwaltungs GmbH, a company affiliated with the chairman of the Supervisory Board, Peter Heidecker.
Pursuant to this agreement, PELABA Verwaltungs GmbH transferred all its assets to and was merged
into CHORUS GmbH by way of absorption (Verschmelzung durch Aufnahme). No new shares have been
issued. The shareholder’s meetings of PELABA Verwaltungs GmbH and CHORUS GmbH granted their
consent to the merger agreement on the same day. The merger was registered with the commercial
register on November 24, 2014.
VII.
MANAGERIAL
AND
OTHER SERVICES RENDERED
TO
FUND KGS
In the years 2014 (up to December 17), 2013, and 2012, CHORUS GmbH and its subsidiaries as
well as the 74 Operating SPVs directly and indirectly held by the Fund KGs were under ‘‘common
management’’ (as to details, see J.III.1. ‘‘Management’s Discussion and Analyses of Financial Condition
and Results of Operations—Comparability of Financial Information—Basis of Preparation of the
Combined Financial Statements’’) and as a result, in the Combined Financial Statements, the 74
Operating SPVs, the Company and CHORUS GmbH were considered ‘‘related parties’’ in accordance
with IAS 24. Furthermore, the Company and the Fund KGs, as entities with the same key personnel, are
also considered ‘‘related parties’’ for the Consolidated Financial Statements 2014. Companies of the
CHORUS Group served in the past and continue to serve in their role as general partner of the Fund KGs
and provided and continue to provide conceptual work, marketing services as well as managerial services
to the Fund KGs. The compensation for the managerial services rendered was made on terms equivalent
to those that prevail in arm’s length transactions and amounted in the financial year 2014 to
e1,026 thousand (2013: e1,054 thousand and 2012: e902 thousand).
VIII.
AUTHORIZATION
TO
SET-UP
A
MANAGEMENT PARTICIPATION/STOCK OPTION PROGRAM
In March 2015, the general shareholders’ meeting of the Company has granted authority to the
Supervisory Board of the Company to set up a stock option program for the benefit of the members of the
Management Board of the Company. The Supervisory Board has not yet made use of such authorization.
For further details, see R.VII. ‘‘Description of Share Capital and Related Information—Stock Option
Program’’.
IX.
INDEMNIFICATION
SHAREHOLDERS
AND
COST REIMBURSEMENT DECLARATIONS
BY THE
SELLING
In connection with the Offering, each of the Selling Shareholders individually has irrevocably
declared vis-à-vis the Company to indemnify the Company from certain liability risks and to assume the
costs incurred by the Company in connection with the Offering, in each case pro rata to the number of
Offered Existing Shares sold by the Selling Shareholder in the Offering against the total number of Offer
Shares sold in the Offering.
Please also see Note 11.2 of the Combined Financial Statements for additional information on
our related party transactions for the financial years 2012 – 2014, Note 11.2 of the Consolidated
Financials Statements 2014 for additional information on our related party transactions for the financial
years 2014 and 2013 and Note 4.4 of the Unaudited Interim Condensed Consolidated Financial
Statements as to our related party transactions for the three months ended March 31, 2015.
181
Q. GENERAL INFORMATION ABOUT CHORUS CLEAN ENERGY AG
AND THE CHORUS GROUP
I.
HISTORY
AND
DEVELOPMENT
OF THE
CHORUS GROUP
The Issuer was formed as a stock corporation (Aktiengesellschaft) under German law by Articles
of Association dated July 31, 2014 under the legal name ‘‘CHORUS Clean Energy AG’’. The Company
was registered on August 4, 2014 under the docket number HRB 213342 with the commercial register at
the local court (Amtsgericht) of Munich, Germany. For further information on the history of the CHORUS
Group, see M.II. ‘‘Business—History of the CHORUS Group’’.
For information on the Reorganization of the CHORUS Group at the end of 2014 and further
reorganizational measures within the CHORUS Group prior to the Offering, see ‘‘Reorganization of the
CHORUS Group’’. The current structure of the CHORUS Group in simplified form is shown under
Q.III. ‘‘—Group Structure’’.
II.
REGISTERED OFFICE, FINANCIAL YEAR, TERM, CORPORATE PURPOSE
The registered office of CHORUS Clean Energy AG is in Neubiberg (county of Munich),
Germany. The business address is Prof.-Messerschmitt-Str. 3, 85579 Neubiberg, Germany,
tel. +49 (0) 89 4423060-0, Internet address: http://www.chorus-gruppe.de. The Company’s most recent
Articles of Association are dated March 20, 2015.
The Company has been formed for an indefinite period of time. The financial year of the
Company is the calendar year.
In accordance with Section 2(1) of the Company’s Articles of Association, the corporate purpose
of the Company is (a) the operation of infrastructure projects, particularly of facilities for the production,
storage or distribution of renewable energy, as well as all related activities, in Germany and abroad by the
Company itself or by other affiliated companies; (b) the provision of services not subject to authorization
or approval in connection with the acquisition and erection of infrastructure projects, in particular for
facilities in the area of the production, storage or distribution of renewable energy, in Germany and
abroad by the Company itself or by other affiliated companies; (c) the provision of services in the area of
commercial management and technical operations during the operational phase of infrastructure
projects, in particular for facilities in the area of the production, storage or distribution of renewable
energy, in Germany and abroad by the Company itself or by other affiliated companies; (d) investor
consulting as well as the conception, conceptual assistance and ongoing consultancy and coordination of
interests in enterprises in the infrastructure area, including but not limited to participations in investments
in the areas of renewable energy, telephone and cable network, energy efficiency and storage, reduction
of emissions, recycling and water; as well as (e) the acquisition, the selling as well as the holding and
managing of interests in enterprises in Germany and abroad which are active in the infrastructure area, in
particular in the area of production, storage or distribution of renewable energy as well as all activities
related, including but not limited to the planning, construction and production of components and facilities
for its production, storage or distribution. The Company may directly and indirectly engage in all activities
which are suitable for serving the purpose of the Company. Further, the Company may, in particular,
establish branches and other enterprises in Germany and abroad. The Company may outsource or
convey, in whole or in part, its operations to affiliated companies.
The Company and its subsidiaries principally do business as ‘‘CHORUS’’.
III.
GROUP STRUCTURE
As the parent company of the CHORUS Group, CHORUS Clean Energy AG exercises certain
Group management functions such as strategy, mergers and acquisitions and integration, risk
management, Group accounting and controlling, treasury, legal, taxation, investor relations, Group
marketing and public relations. The operating business of the CHORUS Group is conducted exclusively
by the relevant direct and indirect operating subsidiaries of the Company.
182
The following chart shows in simplified form the current structure of the CHORUS Group with all
subsidiaries of CHORUS Clean Energy AG and its respective direct and indirect shareholdings after
completion of the Reorganization in February 2015:
CHORUS Clean Energy AG
*
German Solar and
Wind Operations **
100%
CHORUS Vertriebs
GmbH
100%
CHORUS
CleanTech
Management GmbH
100%
100%
100%
Italian Solar
Operations **
French Wind
Operations **
Austrian Wind
Operations **
100%
100%
100%
CHORUS Clean
Energy Advisor
GmbH
CHORUS Clean Energy
Assetmanagement
GmbH
CHORUS Clean
Energy Invest
GmbH
100%
CHORUS GmbH
40%
CHORUS Clean
Energy Verwaltungs
GmbH
100%
Several purely
administrative companies
(Germany)
15JUN201510051285
*
CHORUS does not hold a 100% participation in four of its total of 26 SPVs operating solar parks in Germany; the remaining
solar parks each are all wholly-owned. In addition, CHORUS owns three wind parks in Germany (100%). As to further details
to the German solar and wind parks held by CHORUS, see the tables under M.V.2. ‘‘Business—Energy Generation—Portfolio
of Existing Solar and Wind Parks’’.
**
The solar and wind operations mentioned are organized in all of Germany, Italy (solar only), France and Austria (both wind
only) through SPVS directly or held by the Company on these countries, and which SPVs directly own the solar and wind
parks.
IV.
NOTICES, PAYING AGENT
Company notices are published in the Federal Gazette (Bundesanzeiger) in accordance with the
Company’s Articles of Association, unless publication is required by law in another form. To the extent
that relevant statutory provisions provide that declarations or information must be disclosed to the
shareholders without providing a specific form, it is sufficient if such declarations or information appear on
the Company’s website. Notices relating to shares are also published in the electronic Federal Gazette.
Notices required under applicable laws governing stock exchange transactions will also be published in
the electronic Federal Gazette. Notices relating to the approval of this Prospectus or any supplements
thereto will be published in the form contemplated for this Prospectus in compliance with the provisions of
the German Securities Prospectus Act (Wertpapierprospektgesetz), in particular by way of publication at
the Company’s website: http://www.chorus-gruppe.de. Printed copies of the Prospectus can be obtained
at the Company’s registered office at Prof.-Messerschmitt-Str. 3, 85579 Neubiberg, and from the Sole
Global Coordinator at Neuer Jungfernstieg 20, 20354 Hamburg.
The paying agent is Bankhaus Neelmeyer AG, Am Markt 14-16, 28195 Bremen, Germany.
V.
INFORMATION CONCERNING SIGNIFICANT SUBSIDIARIES
As of the date of this Prospectus, there were no significant subsidiaries of the Company whose
book value comprised at least 10% of the consolidated shareholders’ equity, or that accounted for at least
10% of the consolidated net income, or that were of essential importance for the operations of the
Company.
183
R. DESCRIPTION OF SHARE CAPITAL AND RELATED INFORMATION
I.
SHARE CAPITAL
AND
SHARES
The share capital of the Company currently amounts to e17,448,539. It is divided into 17,448,539
ordinary shares (Stammaktien). The shares in the Company are bearer shares (Inhaberaktien) with no
par value (Stückaktien), each with a notional amount of the share capital of e1.00 currently attributable to
each no par share. The share capital of the Company has been fully paid in.
Each share carries one vote at the Company’s general shareholders’ meeting. There are no
restrictions on voting rights and the shares carry full dividend entitlement.
In the event that the Company is dissolved, the Company’s assets remaining after settlement of
its liabilities will be distributed among the shareholders in proportion to their share in the Company’s share
capital.
The Management Board determines the form of the share certificates as well as the dividend
coupons and renewal coupons. Global certificates may be issued. Pursuant to Section 4(3) of the
Company’s Articles of Association, shareholders are not entitled to receive definitive share certificates
(Aktienurkunden) for their shares.
The Company’s current share capital is represented by a Global Share Certificate without
dividend coupons, which is held with Clearstream Banking AG, Mergenthalerallee 61, 65760 Eschborn,
Germany.
II.
DEVELOPMENT
OF THE
SHARE CAPITAL
The Company’s share capital has been increased in several stages to the current amount of
e17,448,539.
In 2014, the Company was incorporated in the form of a German stock corporation
(Aktiengesellschaft) with a registered capital of e50,000. On December 4, 2014 and January 7, 2015,
respectively, the general shareholders’ meetings of the Issuer resolved to increase the share capital of
the Issuer from e50,000 by e585,500 to e635,500 against cash contribution by the Fund KGs and from
e635,500 by e16,422,503 to e17,058,003 and then from e17,058,003 by e390,536 to e17,448,539
against contributions in kind; see also N. ‘‘Reorganization of the CHORUS Group’’. The capital increases
were registered with the Commercial Register (Handelsregister) of the Issuer on February 23, 2015.
On May 20, 2015, the extraordinary general shareholders’ meeting of the Issuer resolved, in
connection with the Offering, to increase the registered share capital of the Issuer against contributions in
cash and under exclusion of the subscription rights of the existing shareholders of the Company from
e17,448,539 by up to e12,000,000 to up to e29,448,539 through the issuance of up to 12,000,000 new
ordinary non-par value bearer shares (Stückaktien) in the Company (the New Shares, as defined) with a
notional value each of e1.00 in the share capital. The New Shares are offered in the Offering that is the
subject matter of this Prospectus. The resolution on the capital increase was registered with the
Commercial Register (Handelsregister) at the local court of Munich on May 26, 2015, and the
implementation of this capital increase is expected to be registered in the Commercial Register on July 2,
2015.
Furthermore, the extraordinary general shareholders’ meeting on May 20, 2015 authorized the
Management Board to apply for the admission to trading on the regulated market (regulierter Markt) of the
Frankfurt Stock Exchange (Frankfurter Wertpapierbörse) (Prime Standard) of all shares of the Company.
III.
AUTHORIZATION
TO ISSUE
CONVERTIBLE BONDS
AND
OTHER INSTRUMENTS
The Management Board is authorized, with the approval of the Supervisory Board, to issue until
March 9, 2020, on once or repeatedly, bonds with warrants, convertible bonds, profit participation rights,
and/or participating bonds (or combinations of these instruments) (collectively, the ‘‘Bonds’’) having a
total par value of up to e200,000,000.00 and to grant the holders or creditors (collectively, the ‘‘Holders’’)
option or conversion rights to shares of the Issuer up to a maximum of 8,424,269 shares and with a
184
maximum proportion of the share capital of e8,424,269.00 in accordance with the terms and conditions of
the Bonds. The authorization to issue Bonds sets out certain parameters which include the following:
The Bonds can carry fixed or variable interest, whereby the interest may depend partially or
completely on the amount of the Issuer’s dividend. The Bonds may also be mandatorily convertible at the
end of the term or earlier or provide for the right of the Issuer to grant the holders of Bonds shares of the
Issuer in lieu of repayment of the Bonds. In the event of an option being exercised or of a conversion, and
in the event of fulfillment of option or conversion obligations, the Issuer may at its discretion either grant
new shares from conditional capital, or existing Issuer shares. The terms and conditions of the Bonds
may also provide for the right of the Issuer not to grant shares, but rather to pay the equivalent value in
cash. The option or conversion price for a share amounts to–with the exception of the cases in which an
option or conversion obligation is provided for–(i) at least 80% of the volume-weighted average closing
price of the share of the Issuer in the Xetra trading system (or a comparable subsequent system) of
Frankfurt Stock Exchange on the last ten trading days before the date on which the resolution on the issue
of the Bonds is adopted by the Management Board, or (ii) in the event of subscription rights being granted,
at least 80% of the volume-weighted average closing price of the Company share in the Xetra trading
system (or a subsequent system) of the Frankfurt Stock Exchange in the period from the start of the
subscription period up to and including the day before notification is given of the definitive terms and
conditions of the Bonds pursuant to Section 186(2) German Stock Corporation Act (Aktiengesetz).
The terms and conditions of the Bonds may also provide for certain anti-dilution mechanisms
pursuant to which the option or conversion rights and obligations may be adjusted to retain value, if during
the term of the Bonds the financial value of the existing option or conversion rights and obligations is
diluted and no subscription rights are granted as compensation. The terms and conditions of the Bonds
may also provide for a cash compensation instead. Shareholders have, in principle, subscription rights to
the Bonds. The Bonds may also be acquired by one or several banks, pursuant to Section 186(5)
sentence 1 German Stock Corporation Act (Aktiengesetz), subject to the obligation to offer them to
shareholders for subscription. If the Bonds are issued by a company in which the Issuer holds a direct or
indirect majority participation, the Issuer ensures that shareholders of the Issuer are granted subscription
rights.
The Management Board may with the consent of the Supervisory Board exclude subscription
rights to the Bonds in certain cases and under certain conditions, including (i) if the Bonds are issued for
cash payment, provided that the issue price is not significantly lower than the theoretical market price in
accordance with recognized financial methods and that the Bonds carry option or conversion rights
and/or option or conversion obligations to shares with a proportionate amount of the share capital which
must not exceed 10% of the Issuer’s share capital at the time said authorization comes to effect or—in
case such amount is lower—the authorization is exercised, (ii) if the Bonds are issued against
contributions in kind, provided that the value of the contribution in kind is proportionate to the market value
of the Bonds (as calculated pursuant to the preceding letter (i)), (iii) for fractional amounts, or (iv) if the
Bonds are issued to grant Holders of previous issued Bonds subscription rights to the extent they would
have been entitled to as shareholders after exercising option or conversion rights or after fulfilling option
or conversion obligations.
To the extent that profit participation rights or participating bonds are issued that do not carry
option or conversion rights and/or option or conversion obligations, the Management Board shall be
authorized, with the approval of the Supervisory Board, to exclude subscription rights of shareholders
overall if these profit participation rights or participating bonds are structured in the same way as bonds,
i.e., do not constitute any membership rights in the Issuer, do not grant any participation in liquidation
proceeds and the amount of interest is not calculated on the basis of the amount of net income,
unappropriated net income, or the dividend. In this case, the interest and the issue price of the profit
participation rights or participating bonds shall also correspond to comparable borrowings under current
market conditions on the issue date. The Management Board is authorized, with the approval of the
Supervisory Board, to stipulate further particulars and terms of the Bonds in accordance with the
parameters of the authorization.
IV.
AUTHORIZED CAPITAL
Pursuant to Section 4(5) of the Articles of Association together with Section 202 of the German
Stock Corporation Act (Aktiengesetz), the Management Board is authorized to increase the registered
185
capital of the Issuer until March 9, 2020, with the consent of the Supervisory Board once or repeatedly, by
up to a total of e8,724,269.00 by the issuance of up to 8,724,269 new Issuer’s shares with no-par value
against contributions in cash (the ‘‘Authorized Capital 2015/I’’). In principle, the shareholders are to be
offered subscription rights. The new Issuer’s shares may be taken over by one or more banks with the
obligation to offer them to the shareholders (‘‘indirect subscription right’’). The Management Board,
however, is authorized to exclude the subscription right of the shareholders with the consent of the
Supervisory Board for one or more capital increases in the context of the Authorized Capital 2015/I, (i) in
the event of a capital increase against cash contributions provided that the issue price of the new shares
is not substantially (in the sense of Section 186(3) sentence 4 of the German Stock Corporation Act
(Aktiengesetz)) lower than the stock exchange price of shares of the Company carrying the same rights
and the shares issued by excluding the subscription right in accordance with Section 186(3) sentence 4 of
the German Stock Corporation Act (Aktiengesetz) in aggregate do not exceed 10% of the share capital,
either at the time of this authorization entering into effect or at the time of exercise of this authorization.
Shares issued or to be issued for servicing bonds with conversion or option rights or an obligation to
convert shall count against this limitation if such bonds were issued during the term of this authorization
with the shareholders’ subscription rights being excluded by analogous application of Section 186(3)
sentence 4 of the German Stock Corporation Act (Aktiengesetz). Further, the number of treasury shares
sold shall count towards this limitation if the sale occurs during the term of this authorization with the
shareholders’ subscription rights being excluded in accordance with Section 186(3) sentence 4 of the
German Stock Corporation Act (Aktiengesetz); (ii) in case of capital increases against contributions in
kind, in particular for the purpose of acquiring companies, company parts or interests in companies;
(iii) for the purpose of excluding fractional amounts from the shareholders’ subscription rights; (iv) for the
purpose of granting subscription rights to holders of conversion or option rights related to bonds to be
issued by the Company or an affiliated company and (v) if the utilization of the Authorized Capital 2015/I
occurs in order to fulfil an option for the acquisition of additional shares (Greenshoe Option) as agreed
with the issuing banks in the context of an initial public offering of the Company; the issue price is required
to correspond with the placement price of the shares during the initial public offering. The Management
Board is authorized to determine any further details of the capital increase and its implementation, subject
to the Supervisory Board’s approval.
In addition, in connection with the Offering the extraordinary general shareholders’ meeting of the
Issuer of May 20, 2015 resolved upon a new Section 4(5a) of the Articles of Association, pursuant to
which together with Section 202 of the German Stock Corporation Act (Aktiengesetz) the Management
Board is authorized to further increase the registered capital of the Issuer until May 20, 2020, with the
consent of the Supervisory Board once or repeatedly, by up to a total of e2,275,731.00 by the issuance of
up to 2,275,731 new Issuer’s shares with no-par value against contributions in cash or in kind (the
‘‘Authorized Capital 2015/II’’). The Management Board and the chairman of the Supervisory Board were
instructed to file such Authorized Capital 2015/II for registration with the Commercial Register not before
the capital increase to create the New Shares underlying the Offering has been implemented. As is the
case with the Authorized Capital 2015/I, in principle, the shareholders are to be offered subscription rights
but the Management Board is authorized to exclude the subscription right of the shareholders with the
consent of the Supervisory Board for one or more capital increases in the context of the Authorized
Capital 2015/II for the same reasons set forth above under (i) to (iv) for the exclusion of subscription rights
of the shareholders under the Authorized Capital 2015/I (except for a utilization of the Authorized Capital
2015/II for purposes of the Greenshoe Option).
In case the Greenshoe Option is exercised in connection with the Offering, the Authorized
Capital 2015/I will be used to issue up to 1,909,928 additional new shares (see C.VII. ‘‘The Offering—
Stabilization Measures, Over-Allotments and the Greenshoe Option’’).
V.
CONDITIONAL CAPITAL
As of the date of this Prospectus, the Issuer has the following two conditional capitals:
a.
Conditional Capital 2015/I
Pursuant to Section 4(6) of the Articles of Association, the Issuer’s share capital is conditionally
increased by up to e300,000.00 by issuance of up to 300,000 new no par value bearer shares (the
‘‘Conditional Capital 2015/I’’). The Conditional Capital 2015/I may only be used to fulfill the subscription
rights which have been granted to members of the Management Board in connection with the Stock
186
Option Program 2015 in accordance with the resolution of the Issuer’s extraordinary general
shareholders’ meeting on March 10, 2015 (see R.VII. ‘‘—Stock Option Program’’). The conditional capital
increase will only be implemented to the extent that subscription rights have been or will be issued in
accordance with the Stock Option Program 2015, as resolved by the extraordinary general shareholders’
meeting on March 10, 2015, the holders of the subscription rights exercise their rights and the Issuer does
not deliver treasury shares to satisfy the subscription rights, whereas the Supervisory Board is exclusively
competent regarding the granting and settlement of subscription rights to the members of Management
Board. The new no par value bearer shares shall participate in the profits from the beginning of the
financial year in which they are issued.
b.
Conditional Capital 2015/II
Pursuant to Section 4(7) of the Articles of Association, the Issuer’s share capital is conditionally
increased by up to e8,424,269.00 by issuance of up to 8,424,269 new no par value bearer shares (the
‘‘Conditional Capital 2015/II’’). The conditional capital increase may only be used to grant shares when
options or conversion rights are exercised or option or conversion obligations are fulfilled vis-à-vis the
holders of Bonds issued on the basis of the authorization resolution of the extraordinary general
shareholders’ meeting of March 10, 2015 (see R.III. ‘‘—Authorization to Issue Convertible Bonds and
Other Instruments’’). The new shares will be issued at the option and conversion price to be stipulated in
each instance in accordance with the aforementioned authorization. The conditional capital increase shall
only be implemented to the extent to which the holders of Bonds that are issued or guaranteed by the
Issuer or companies, in which the Issuer direct or indirect holds a majority participation (majority of voting
rights and share capital), up until March 9, 2020, on the basis of the authorization resolution of the
extraordinary general shareholders’ meeting of March 10, 2015 (see R.III. ‘‘—Authorization to Issue
Convertible Bonds and Other Instruments’’), make use of their option or conversion rights or fulfill the
option or conversion obligations arising out of such Bonds, and insofar as other forms of fulfillment are not
used. The newly issued shares as a result of the exercising of option or conversion rights or the fulfillment
of option or conversion obligations shall participate in the profits, starting at the beginning of the financial
year in which they are issued. The Management Board is authorized, with the approval of the Supervisory
Board, to determine any other details concerning implementation of the conditional capital increase.
VI.
AUTHORIZATION
TO
ACQUIRE
AND
SELL TREASURY SHARES
The Issuer currently does not hold any of its own shares, nor does a third party on behalf of the
Issuer. However, by resolution of the extraordinary general shareholders’ meeting on March 10, 2015, the
Issuer is authorized to purchase up to a total of 10% of its share capital existing at the time of the adoption
of the resolution on or before March 9, 2020. The acquired shares, together with other treasury shares
which may be in the possession of the Issuer or are attributable to it pursuant to Sections 71a et seqq.
German Stock Corporation Act (Aktiengesetz), if any, may at no time exceed 10% of the Issuer’s
registered share capital. At the discretion of the Management Board, the shares can be acquired in one or
more tranches through a stock exchange, by means of a public offer or a public solicitation to submit
offers or by means of a public offer or a public solicitation to submit offers for the exchange of liquid shares
against shares of the Issuer. The authorization provides for certain thresholds by defining a minimum and
maximum consideration for the acquisition of a treasury share. In principle, the consideration for a
treasury share may not exceed and may not fall below the market price for one share of the Issuer in the
Xetra trading at the Frankfurt Stock Exchange on the trading day prior to acquisition through the stock
exchange or – in case of a public offer or a public solicitation – below the volume weighted average
market price in the three days prior to the announcement of such public offer or public solicitation, by more
than 10%. In case of an exchange offer, the exchange price or the exchange range ratio in the form of one
or several exchange shares may in principle not exceed the relevant value of a share of the Issuer by 10%
and may not fall below such value by more than 20%, based on the volume-weighted average closing
price of the exchange shares and of the shares of the Issuer in the Xetra trading on the Frankfurt Stock
Exchange on the last three trading days prior to the public announcement of the exchange offer.
The treasury shares may be used for any purpose permitted by law. Apart from a disposal
through a stock exchange or an offer granting subscription rights to all shareholders, the Management
Board is authorized, with the consent of the Supervisory Board, to sell the treasury shares against cash
consideration under exclusion of subscription rights, provided that the selling price is not significantly
lower than the market price and that the amount of treasury shares to be sold does not exceed 10% of the
registered share capital at the time the disposal is resolved. Moreover, the treasury shares can be sold
187
under exclusion of subscription rights in the course of mergers or the acquisition of companies, sold in
order to satisfy the rights of creditors of bonds carrying conversion or option rights or, respectively,
conversion obligations issued by the Issuer or its companies; the shares may also be retired. They also
may be offered to current or former employees of the Issuer or its affiliates; the Supervisory Board may
use treasury shares to fulfill rights or obligations to purchase shares of the Issuer that are granted to the
members of the Management Board as variable compensation. The Management Board is required to
inform the Issuer’s general shareholders’ meeting about the reasons for and the purpose of the
acquisition of treasury shares, the number of treasury shares acquired and the amount of the registered
share capital attributable to them, the portion of the registered share capital represented by them and the
equivalent value of the shares.
In addition, the Issuer is authorized to acquire, on or before March 9, 2020, treasury shares up to
a total maximum of 5% of the registered share capital existing at the time of the adoption of the resolution
by use of derivatives (put or call options or a combination of both). The acquired shares form part of the
10% threshold of the authorization for the acquisition and use of treasury shares. The option transactions
must be entered into with a financial institution or through the stock exchange at terms close to market
conditions. The shareholders are not entitled to enter into option transactions with the Issuer. The
authorization provides for certain thresholds with regard to the exercise price (excluding acquisition costs
and including certain other costs) which may not exceed the volume-weighted average market price of
the Issuer’s shares in the Xetra trading on the Frankfurt Stock Exchange during the last three exchange
trading days prior to the conclusion of the respective option transaction by more than 10% and may not
fall below such arithmetic means by more than 20%. Shareholders have a right to tender their shares only
to the extent that, by virtue of the derivative transactions, there is an obligation on the part of the Issuer to
purchase the shares. Any further tender right is excluded.
VII.
STOCK OPTION PROGRAM
The members of the Management Board are beneficiaries under a long-term stock option
program, which has been established by resolution of the extraordinary general shareholders’ meeting on
March 10, 2015 (the ‘‘Stock Option Program 2015’’) and which is administered by the Supervisory
Board.
Under the Stock Option Program 2015, the Supervisory Board is authorized until March 9, 2020
to grant up to 300,000 stock options (each entitling to the acquisition of one share in the Company) to and
to allocate the stock options among the members of the Management Board at its sole discretion. The
options can be granted in annual tranches within two weeks following the publication of the quarterly
financial report (Quartalsfinanzbericht), the semiannual financial report (Halbjahresfinanzbericht) and the
annual financial statements of the Company. The Company’s shares issuable under the Stock Option
Program 2015 will be funded by the Conditional Capital 2015/I, which was resolved on March 10, 2015.
As an alternative, the terms and conditions of the Stock Option Program 2015 may provide for an option of
the Company, which is exercisable by the Supervisory Board, to fulfill its obligations under the Stock
Option Program 2015 by the allocation of treasury shares among the members of the Management
Board.
Stock options may – subject to the fulfillment of certain performance goals set forth below – be
exercised for the first time after a waiting period of four years, beginning with the date the stock options
are granted.
The right to fully exercise stock options is subject to (i) a receipt of the admission to trading on the
regulated market (regulierter Markt) of the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse)
(Prime Standard) of the shares of the Company prior to December 31, 2015 and (ii) the exceedance of the
average price (arithmetical median) in the Xetra trading (or a comparable successor system) of the
Company’s shares following the admission to trading on the Frankfurt Stock Exchange over the period of
ten trading days prior to the exercise of the option by at least 25% compared to the average price
(arithmetical median) five trading days prior to the issuance of the options. In case only these
performance goals are not met by the end of the waiting period, the issued subscription rights expire in
total and without any further compensation.
The exercise price for the stock options is equal to the average closing price (arithmetical
median) of the Company’s share price on the Frankfurt Stock Exchange in the Xetra trading (or a
188
comparable successor system) over the period of ten trading days prior to the date the respective option
has been issued to the member of the Management Board (the ‘‘Reference Value’’) less a 5% discount to
such Reference Value. The minimum exercise price per share to be issued under the Stock Option
Program 2015 may in no event be lower than the statutory minimum issue amount per share.
Generally, stock options can only be exercised within two weeks after a public announcement of
the Company’s business figures.
The terms of the stock options may stipulate the expiry of the stock options in the event of death,
diminished capacity to work or retirement of the respective holder of the option or the termination of
his/her service agreement, or the end of his/her employment relationship in a manner other than
termination. Furthermore, stock options expire five years after the day of issuance at the latest.
The Supervisory Board is authorized to equate holders of option rights economically if, during the
term of the options, the Company increases its share capital by way of granting a direct or indirect
subscription right to its shareholders, or issues bonds with conversion or option rights and the determined
conversion or option price is lower than the price for the exercise of the stock options. Such equation may
be achieved by way of either a decrease of the price for the exercise of the stock options or through an
adjustment of the number of options issued or a combination of both measures. The holders of the stock
options have no right to demand such equation.
The stock options are not transferrable, for sale, pledgable and may not be encumbered
otherwise, except for a transfer in the event of death of the respective holder of the stock option.
The Supervisory Board is authorized to determine the further details regarding the issue of
shares out of the conditional capital and the additional conditions of the Stock Option Program 2015, in
particular, the program terms for the entitled persons.
At the date of this Prospectus, no stock options have been granted by the Supervisory Board to
the members of the Management Board of the Company, yet.
VIII.
GENERAL PROVISIONS GOVERNING ALLOCATION
PAYMENTS
OF
PROFITS
AND
DIVIDEND
In the case of a capital increase, the entitlement to dividends for new shares can be determined in
deviation from Section 60 of the German Stock Corporation Act (Aktiengesetz) (Section 4(4) of the
Company’s Articles of Association). See E. ‘‘Dividends, Dividend Policy and Earnings per Share’’.
IX.
GENERAL PROVISIONS RELATING
TO
LIQUIDATION
OF THE
COMPANY
Apart from liquidation as a result of insolvency proceedings, the Company may be liquidated only
with a vote of 75% or more of the share capital represented at the general shareholders’ meeting at which
such a vote is taken. Pursuant to the German Stock Corporation Act (Aktiengesetz), in the event of the
Company’s liquidation, any assets remaining after all of the Company’s liabilities have been settled will be
distributed pro rata among its shareholders. The German Stock Corporation Act (Aktiengesetz) provides
certain protections for creditors which must be observed in the event of liquidation.
X.
GENERAL PROVISIONS GOVERNING CHANGES
IN THE
SHARE CAPITAL
According to the German Stock Corporation Act (Aktiengesetz), the share capital of a stock
corporation may be increased against contributions in cash or in kind by resolution of the general
shareholders’ meeting which must be adopted by a simple majority of the votes cast and a majority of at
least three-quarters of the share capital represented at the adoption of the resolution, unless the
corporation’s Articles of Association require a different majority; if the share capital is increased by issuing
non-voting preference shares or the subscription rights of the shareholders are excluded, the Articles of
Association may only require a larger majority. Pursuant to the Company’s Articles of Association, an
increase of the share capital against contributions in cash or in kind requires a simple majority of the votes
cast and a simple majority of the share capital represented at the adoption of the resolution, unless
preference shares are issued or the subscription rights of shareholders are excluded.
189
The general shareholders’ meeting may also create authorized capital. The creation of
authorized capital requires a resolution with a majority of three-quarters of the share capital represented
at the adoption of the resolution which authorizes the Management Board to issue shares up to a certain
amount within a period of no more than five years. The nominal amount of the authorized capital may not
exceed 50% of the share capital existing at the time of the authorization.
In addition, the general shareholders’ meeting may create conditional capital for the issuance of
shares to holders of convertible bonds or other securities that grant the holder the right to subscribe for
shares, of shares that serve as consideration in a merger with another company, or of shares that were
offered to executives and employees; a resolution with a majority of three-quarters of the share capital
represented is required in each case. The nominal amount of the conditional capital may not exceed 10%,
if the conditional capital is created for the purpose of issuing shares to executives and employees, or, in
all other cases, 50% of the share capital existing at the time the resolution is adopted.
A resolution on the reduction of the share capital requires a majority of three quarters of the share
capital represented when the resolution is adopted.
If a change in the share capital results in an increase or decrease in the voting rights, the total
number of voting rights must be published by the company and the BaFin must be informed, as required
by Section 26a of the German Securities Trading Act (Wertpapierhandelsgesetz), at the end of the month
in which the increase or decrease occurred. The shareholders may be subject to disclosure requirements
according to the German Securities Trading Act (Wertpapierhandelsgesetz). See R.XIII. ‘‘—Disclosure
Requirements for Shareholdings and Takeover Bids’’.
XI.
GENERAL PROVISIONS GOVERNING SUBSCRIPTION RIGHTS
According to the German Stock Corporation Act (Aktiengesetz), each shareholder has, in
principle, a right to subscribe for the new shares issued within the scope of a capital increase (including
securities convertible into shares, securities with warrants to purchase shares, securities with profit
participation or participation certificates) to maintain their existing share in the share capital. Subscription
rights are freely transferable and may be traded on German stock exchanges during a fixed period before
the expiration of the subscription period. Pursuant to the German Stock Corporation Act (Aktiengesetz),
the subscription period may not be shorter than two weeks. The general shareholders’ meeting may
exclude subscription rights with a majority of the votes cast and, at the same time, at least three-quarters
of the share capital represented at the adoption of the resolution. An exclusion of subscription rights
further requires a report of the Management Board, which must show, in order to justify the exclusion of
subscription rights, that the company’s interest in excluding the subscription rights outweighs the interest
of the shareholders in the subscription rights being granted. In the absence of such objective justification,
an exclusion of subscription rights may be permissible for an issuance of new shares if:
•
the company increases the capital against cash contributions;
•
the amount of the capital increase does not exceed 10% of the existing share capital; and
•
the issuance price of the new shares is not substantially lower than the stock exchange
price.
It is not considered an exclusion of subscription rights if new shares are acquired by a credit
institution, which undertakes to offer the new shares to those persons who would otherwise have
subscription rights.
XII.
EXCLUSION
OF
MINORITY SHAREHOLDERS
Pursuant to the provisions in Sections 327a et seqq. of the German Stock Corporation Act
(Aktiengesetz) regarding the so-called ‘‘squeeze-out’’ process, the general shareholders’ meeting of a
stock corporation may resolve upon the request of a shareholder holding at least 95% of the share capital
(the ‘‘Main Shareholder’’) on the transfer of the shares of the remaining minority shareholders to the
Main Shareholder in exchange for granting reasonable cash compensation.
190
The amount of the cash compensation to be granted to the minority shareholders must take into
account ‘‘the circumstances of the company’’ at the time the resolution is adopted by the general
shareholders’ meeting. The amount of the compensation is determined by the full value of the enterprise
which is normally determined using the capitalized earnings method (Ertragswertverfahren).
The shareholding requirements for a squeeze-out are lowered if the squeeze-out takes place in
connection with the merger of a subsidiary into the parent company. According to Section 62(5) of the
German Transformation Act (Umwandlungsgesetz), the general shareholders’ meeting of a transferring
stock corporation may, within three months after the signing of the merger agreement, adopt a
squeeze-out resolution in accordance with Section 327a of the German Stock Corporation Act
(Aktiengesetz) if the acquiring company is a German stock corporation, partnership limited by shares
(Kommanditgesellschaft auf Aktien) or European public company (Societas Europea) that holds at least
90% of the registered share capital. After registration of the squeeze-out with the commercial register, the
merger can be implemented without a further resolution by the general shareholders’ meeting of the
subsidiary.
In addition to the squeeze-out process under the German Stock Corporation Act (Aktiengesetz)
summarized above, the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und
Übernahmegesetz) permits the so-called squeeze-out under the law on takeovers. Under these
provisions, a bidder holding at least 95% of the voting share capital in a target company (within the
meaning of the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und
Übernahmegesetz)) after a public takeover offer or mandatory offer can generally file a motion with the
district court (Landgericht) of Frankfurt am Main for the transfer of the other voting shares in exchange for
the grant of reasonable compensation by means of a court order within three months after expiration of
the acceptance period. A resolution of the general shareholders’ meeting is not necessary. The type of
compensation must correspond to the consideration in the takeover offer or the mandatory offer; cash
compensation must always be offered as an alternative. The consideration offered in connection with the
takeover or mandatory offer is deemed to be reasonable if the bidder has acquired shares equal to at
least 90% of the share capital affected by the offer. In addition, shareholders have a sell-out right. During
squeeze-out proceedings under the law on takeovers initiated upon the motion of the bidder, the
provisions on a squeeze-out under stock corporation law do not apply, and they are only applicable after a
final conclusion of the squeeze-out proceedings under takeover law.
Pursuant to the provisions in Sections 319 et seqq. of the German Stock Corporation Act
(Aktiengesetz) regarding the so-called integration process (Eingliederung), the general shareholders’
meeting of a stock corporation can resolve upon the integration into another company if the future
principal company holds at least 95% of the shares in the company to be integrated. The existing
shareholders in the integrated company have a claim for reasonable compensation which must as a
general rule be granted in the form of own shares in the principal company. The amount of the
compensation must be determined using the so-called merger value ratio (Verschmelzungswertrelation)
between the two companies, i.e., the exchange ratio which would be considered reasonable in the event
of merging the two companies. In contrast to the rules governing squeeze-outs, integration is only
possible if the future principle company is a stock corporation domiciled in Germany.
XIII.
DISCLOSURE REQUIREMENTS
FOR
SHAREHOLDINGS
AND
TAKEOVER BIDS
As the shares of the Company are already admitted to trading on the regulated markets
(regulierter Markt) of the Frankfurt Stock Exchange (Prime Standard), the Company is subject to the
provisions of the German Securities Trading Act (Wertpapierhandelsgesetz).
The German Securities Trading Act (Wertpapierhandelsgesetz) provides that any shareholder
who, through acquisition, sale or otherwise, reaches 3%, 5%, 10%, 15%, 20%, 25%, 30%, 50% or 75% of
the voting rights in a listed company whose country of origin is Germany must notify the respective
company and the BaFin without undue delay, but no later than four trading days after the event, of having
reached, exceeded or fallen below the threshold values and must also disclose the amount of its current
share of the voting rights. The prescribed time limit commences at the time when the shareholder
required to give the notification has actual knowledge or should have had knowledge under the
circumstances that its share of voting rights reached, exceeded or fell below the stated thresholds.
191
Except for the threshold at 3%, corresponding disclosure obligations towards the Company and
the BaFin apply for reaching, exceeding, or falling below the above mentioned threshold values when the
relevant shareholder holds financial instruments that (i) grant the holder the right to unilaterally acquire,
under a legally binding agreement, previously issued voting shares of an issuer whose country of origin is
Germany (Section 25 of the German Securities Trading Act (Wertpapierhandelsgesetz)) or (ii) are
designed to enable its holder or a third party to acquire previously issued voting shares of an issuer whose
country of origin is Germany (Section 25a of the German Securities Trading Act
(Wertpapierhandelsgesetz)). The voting rights from shares and voting rights obtainable through financial
instruments will be aggregated.
The company must publish this notification without undue delay, but no later than three trading
days after receipt of the notification in accordance with Section 20 of the German Securities Trading
Reporting and Insider List Ordinance (Wertpapierhandelsanzeige- und Insiderverzeichnisverordnung)
and submit this to the companies register (Unternehmensregister) maintained electronically by the
German Federal Ministry of Justice within the meaning of Section 8b of the German Commercial Code
(Handelsgesetzbuch) for storage without undue delay, but not prior to the publication.
The German Securities Trading Act (Wertpapierhandelsgesetz) contains various rules in
connection with this requirement which are supposed to ensure that the shareholding is attributed to the
person who actually controls the voting rights relating to the shares. For example, shares held by a third
person will be attributed to another person if that other person exercises control over the person holding
the shares. This also applies to shares which are held by a third person on behalf of another person or a
person controlled by such other person as well as voting rights which the person can exercise free of
instructions as a proxy. Any arrangements regarding the exercise of voting rights in a general
shareholders’ meeting will be considered ‘‘acting in concert’’ and result in the mutual attribution of voting
rights, unless limited to a single arrangement regarding different matters, repeated arrangements
regarding a single matter or coordination with regard to several items on the agenda of a single general
shareholders’ meeting. Also, coordination outside the general shareholders’ meeting may constitute
‘‘acting in concert’’ and result in the mutual attribution of voting rights if the shareholders intend to change
the target company’s strategic direction permanently and substantially, e.g., by a fundamental change in
the business model or the disposition of significant parts of the target company’s business.
If the disclosure is not made, the shareholder is precluded from exercising the rights relating to
these shares (including voting rights and the right to receive dividends) in accordance with the provision
of Section 28 of the German Securities Trading Act (Wertpapierhandelsgesetz). If the disclosure
requirements are violated in a willful or grossly negligent manner, any rights relating to the shares will be
suspended for a six-month period even if accurate and complete disclosure is ultimately made.
Furthermore, a fine can be imposed in the case of non-compliance with the disclosure requirements. The
Articles of Association of the Company do not contain any provisions going beyond the legally prescribed
duties to notify shareholdings. With regard to the current shareholdings, see O.I. ‘‘Shareholder
Information—Shareholder Structure’’.
Moreover, a shareholder holding 10% or more of the voting rights relating to shares of an issuer
must inform the issuer of its intentions and the sources of its capital, in each case within 20 trading days
from such shareholder acquiring the relevant percentage of the shares. In particular, the shareholder
must, at the issuer’s request, disclose whether it intends to (i) pursue any strategic objectives with respect
to the company (as opposed to profits from trading in the shares), (ii) acquire further voting rights within
the following twelve months, (iii) exert any influence or control over the company’s management or
supervisory board and (iv) make any changes to the company’s capital structure (by incurring additional
debt). However, the company may waive that obligation in its articles of association. If the above
objectives change, such change needs to be disclosed to the issuer within 20 trading days of such
change.
Furthermore, under the German Securities Acquisition and Takeover Act (Wertpapiererwerbsund Übernahmegesetz), any shareholder whose portion of voting rights reaches or exceeds 30% of the
voting rights of the company must publish this fact, including the percentage of his share of the voting
rights, without undue delay and no later than seven calendar days after the fact by announcing this on the
internet and by means of an electronic information distribution system for financial information and must
subsequently submit a public mandatory offer directed at all holders of ordinary shares of the company
unless an exemption from this obligation has been granted. The German Securities Acquisition and
192
Takeover Act (Wertpapiererwerbs- und Übernahmegesetz) contains a number of provisions which are
supposed to ensure that the shareholding is attributed to the person who actually controls the voting
rights relating to the shares. If the notification about reaching or exceeding the 30% threshold or the
submission of the public mandatory offer does not occur, during the time such submission occurs, the
shareholder is precluded from exercising any rights relating to these shares (including the voting rights
and the right to receive dividends) and must pay interest to the shareholders of the target company.
Furthermore, a fine can be imposed in these situations. Shareholders who already hold at least 30% of
the voting rights in the company or to whom at least 30% of the voting rights in the company are attributed
prior to the admission of the shares to trading on the regulated market are exempt from these
requirements.
The German Securities Trading Act (Wertpapierhandelsgesetz) requires persons who perform
management functions in a listed stock corporation (‘‘Executives’’) to notify the company and the BaFin
within five business days about their own transactions with shares in the Company or related financial
instruments, especially derivatives.
This also applies to persons who have a close relationship to the Executives. The company is
required to publish such a notification without undue delay after receipt and to send the publication to the
BaFin and the companies register after the publication. The obligation does not apply if the total amount of
transactions of an Executive and the persons having a close relationship with this Executive does not
exceed an amount of e5,000 in a single calendar year. Executives, within the meaning of the German
Securities Trading Act (Wertpapierhandelsgesetz), include members of a management body,
administrative body or supervisory body of the company as well as other persons who regularly have
access to insider information as defined in the German Securities Trading Act (Wertpapierhandelsgesetz)
and who are authorized to make material corporate decisions.
The following persons are defined as having a close relationship with an Executive: spouses, civil
partners, children entitled to support and other relatives who have lived in the same household as the
Executive for at least one year at the time the transaction requiring notification occurs. Legal entities in
which the aforementioned persons exercise management responsibility are also subject to the
notification requirement. The provision also applies to those legal entities, companies and organizations
which are directly or indirectly controlled by an Executive or a person having a close relationship to an
Executive which were established for the benefit of such a person or whose economic interests generally
correspond to those of such a person.
A fine can be imposed in the case of culpable non-compliance with the notification requirements.
193
S. MANAGEMENT AND GOVERNING BODIES
I.
OVERVIEW
The Company’s governing bodies are the Management Board (Vorstand), the Supervisory Board
(Aufsichtsrat) and the general shareholders’ meeting (Hauptversammlung). The powers vested in these
bodies are set forth in the German Stock Corporation Act (Aktiengesetz), the Company’s Articles of
Association (Satzung) and the internal rules of procedure (Geschäftsordnungen) for the Management
Board and the Supervisory Board.
The Management Board manages the Company’s business in accordance with the provisions of
the relevant statutes, the Company’s Articles of Association and the internal rules of procedure for the
Management Board including the business distribution plan (Geschäftsverteilungsplan). It represents the
Company in its dealings with third parties.
The Management Board is responsible for the management of the entire Company and decides
on fundamental questions of business policy, company strategy and on annual long-term planning.
Further, it bears responsibility for the preparation of the quarterly and half-year reports and the annual
financial statements of the Company and the consolidated financial statements, ensures compliance with
the legal provisions and the Company’s internal guidelines, and works towards adherence to these
throughout group companies. In particular, it ensures that adequate risk management and risk control
systems are set up within the Company.
The Management Board is obligated to report to the Supervisory Board on a regular basis, in
detail and in a timely manner on the business situation, in particular the business policy, the company
planning, including financial, investment and personnel planning, the profitability of the Company, the
course of business, the Company’s risk situation and risk management as well as on transactions
significant to profitability and liquidity.
The Supervisory Board appoints the members of the Management Board and is authorized to
remove them from office for cause (aus wichtigem Grund). The Supervisory Board is required to
supervise the Management Board in its management of the Company. Pursuant to the German Stock
Corporation Act (Aktiengesetz), the Supervisory Board is not authorized to perform management tasks.
Pursuant to the rules of procedure of the Management Board, certain actions or transactions require the
prior approval of the Supervisory Board. Such actions or transactions include the following:
•
annual planning, including budget planning, for the upcoming financial year;
•
relocation of the administrational seat and other operational or administrational measures
which could have a material influence on the Company;
•
investments by the Company in the form of equity and incurrence of direct and indirect
liabilities of the Company, which in each case reach or exceed an amount of e5,000,000;
•
direct or indirect disposition of assets and rights, if the value of the disinvestment reaches or
exceeds an amount of e5,000,000 in each case;
•
incurrence of loans, which in each case reach or exceed an amount of e1,000,000 and
issuance of bonds (Schuldverschreibungen);
•
granting of loans to third parties (excluding affiliated companies within the meaning of
Sec. 15 et seqq German Stock Corporation Act and payment deferrals and credits granted to
suppliers in the ordinary course of business);
•
assumption of suretyships (Bürgschaften), guarantees and warranties or grant of
indemnities and issuance of comfort letters (Patronatserklärungen), each to the benefit of
third parties (excluding affiliated companies within the meaning of Sec. 15 et seqq German
Stock Corporation Act);
194
•
operations and measures of the Company and its affiliated companies within the meaning of
Sec. 15 et seqq German Stock Corporation Act, which can be expected to result in a material
loss or are not entered into at arm’s length conditions; and
•
operations or measures which, directly or indirectly, materially affect the business, financial
condition and results of operations or the risk exposure of the Company.
The Supervisory Board may also provide for further transactions which require its consent.
The members of the Management Board and the Supervisory Board are subject to fiduciary
duties and duties of care towards the Company. The members of these bodies must take a wide range of
interests into consideration, including those of the Company, its shareholders, its employees, its creditors
and, to a limited extent, the general public. In addition, the Management Board must consider the
shareholders’ rights to equal treatment and equal information. In the event that the members of the
Management Board or the Supervisory Board breach their duties, they are jointly and severally liable to
the Company. Under German law, however, a shareholder generally does not have standing to sue
members of the Management or Supervisory Board directly if he or she believes that these have
breached their duties to the Company. Only the Company has the right to claim damages from the
members of the Management or Supervisory Board. The Company may not waive compensation rights
until three years from the date on which such rights arose, and may only do so or reach a settlement if so
resolved by the shareholders at the general shareholders’ meeting with a simple majority of the votes cast
and provided that a minority of shareholders whose shares together make up or exceed 10% of the share
capital do not raise an objection that is recorded in the minutes. Shareholders and shareholder
associations may call on other shareholders, for example in the shareholder forum (Aktionärsforum) of
the Federal Gazette (Bundesanzeiger), to apply for a special audit or a call for a general shareholders’
meeting to be convened or exercise their voting rights in the general shareholders’ meeting, either jointly
or by proxy. Shareholders who together hold 1% of the share capital or a proportionate share of e100,000
can also assert a claim for damages against members of the governing bodies on behalf of the Company
in their own name by way of a claim admission process.
German law prohibits individual shareholders (or any other person) from exercising their
influence on the Company so as to cause a member of the Management or Supervisory Board to act in a
manner that would be detrimental to the Company. Shareholders with a controlling influence may not use
their influence to cause the Company to act against its interests unless a domination agreement
(Beherrschungsvertrag) exists between the shareholder and the Company and the influence is exercised
within the scope of certain mandatory statutory provisions or the damages are compensated for. Anyone
who uses his or her influence to cause a member of the Management or Supervisory Board, a procurated
officer (Prokurist), or an authorized agent (Handlungsbevollmächtigter) to act in a manner that would be
detrimental to the Company or its shareholders is liable for the damage incurred by the Company and its
shareholders as a result thereof. Moreover, if members of the Management Board or the Supervisory
Board breach their duties they are jointly and severally liable for the resulting damages.
II.
MANAGEMENT BOARD
Pursuant to the Company’s Articles of Association, the Management Board consists of a
minimum of two members. The number of Management Board members is otherwise determined by the
Supervisory Board. The Supervisory Board may appoint one member of the Management Board to act as
chairman of the Management Board. The members of the Management Board are appointed by the
Supervisory Board for a maximum term of five years. Both reappointments and extensions of terms of
office for a maximum of five years are permissible. The Supervisory Board may remove a Management
Board member prior to the termination of such member’s term of office for cause, such as gross violations
of his or her duties or if the general shareholders’ meeting approves a motion of no confidence relating to
the relevant Management Board member.
Unless otherwise provided by mandatory law or mandatory provisions in the Articles of
Association, resolutions of the Management Board are adopted with a simple majority of the votes cast.
To the extent a chairman is appointed, he or she may cast the deciding vote.
195
The Company is represented by two members of the Management Board or by one member
together with a procurated officer (Prokurist) or by one member, provided that the Supervisory Board
granted such member the authority to represent the Company alone.
The following table lists the current members of the Management Board, their age, the date on
which they were first appointed, the date on which their current appointment is scheduled to end, their
position as well as their other positions in administrative, management and supervisory bodies and as
partners in partnerships outside the CHORUS Group during the past five years; unless stated otherwise
below, these memberships are current:
Name
Holger Götze ...
First
Appointed
Age appointed
until
45
2014
2019
Other memberships in
administrative, management
or supervisory bodies
or as partners in
partnerships in the
previous five years
Position
Chairman, Chief
•
Executive Officer (CEO)
•
•
Heinz Jarothe...
52
2014
2019
Chief Operating
Officer (COO)
•
•
Helmut Horst....
32
2014
2019
Chief Financial
Officer (CFO)
Chairman of administrative board of
CHORUS SICAV-SIF
Europe I Soparfi S.à r.l. (managing
director)
Germany I Soparfi S.à r.l. (managing
director)
La Source Beteiligungs GmbH
(managing director (Geschäftsführer))
REGIS Treuhand & Verwaltung GmbH
für Beteiligungen (managing director
(Geschäftsführer))
None.
Holger Götze was born in Hameln/Weser, Germany, in 1969. Mr. Götze earned a degree in
business administration from Baden-Wuerttemberg Cooperative State University (DHBW), Stuttgart.
Upon graduation in 1992, Mr. Götze started his career at Allgemeine Kreditversicherung AG (today:
Coface) by passing a company’s academic program followed by two years as a sales representative.
Afterwards he worked as a key accountant manager at a German subsidiary of KBC Bank. From 1997 to
2006, Mr. Götze served as branch manager and procurated officer (Prokurist) for real estate at
SüdLeasing. Prior to joining CHORUS, Mr. Götze worked as procurated officer (Prokurist) for LHI-Group
and was responsible for institutional investors, focusing on assets in the renewable energy sector. In
2012, he joined CHORUS as a managing director and became the chairman of the Management Board
(CEO) of the Issuer in 2014, responsible for investment and strategy as well as legal, investor relations
and sales.
Heinz Jarothe was born in Scheßlitz, Germany, in 1962. Mr. Jarothe is holding a Master’s
degree in political sciences from Ludwig-Maximilians-University in Munich and a degree in financial
administration from the Fachhochschule Herrsching. In 1993 he passed the exam as a tax consultant
successfully. He began his career working as an auditor for the fiscal authorities of Bavaria. Since 1991,
he was head of finance and accounting of a Munich-based issuing company, managing partner of an
asset management company and, most recently as Vice President, consultant in the tax department at
Bayerische Landesbank. Mr. Jarothe joined CHORUS GmbH as Managing Director of various
subsidiaries of the company in 2001 and has been appointed Managing Director of CHORUS GmbH in
2005. In 2014, he was appointed as Chief Operating Officer (COO) of the Issuer, responsible for asset
management, risk management, administration and human resources.
Helmut Horst was born in Munich, Germany, in 1982. Mr. Horst studied economics at the
University of Munich and earned a degree in business administration. After a short period as consultant
and working at msg systems, where he developed management-analytics systems, he joined CHORUS
in 2009, where he after initially working in the investment and project management became head of risk
management at CHORUS GmbH. Since 2014, Mr. Horst has been a member of the Management Board
of the Issuer as chief financial officer (CFO) and responsible for financials, taxes, accounting / treasury,
controlling and CSR (Corporate Social Responsibility).
196
The members of the Management Board can be contacted at the Company’s address.
The service contracts of the Management Board members of the Company will expire in 2019.
Under their current service contracts, each board member receives a fixed annual remuneration as base
salary and a variable remuneration (bonus), which is determined by the Supervisory Board and which
depends on the increase of the Company value each year, calculated based on the development of the
share price of the Company on the XETRA trading system of the Frankfurt Stock Exchange and dividends
paid, and is capped at a certain maximum amount per year.
The general shareholders’ meeting of the Company resolved on March 10, 2015 that the
compensation granted by the Company to the members of the Management Board will not be individually
disclosed in the annual financial statements and the consolidated financial statements of the Company
pursuant to an exemption available under the German Commercial Code (Handelsgesetzbuch) for the
financial year commencing on January 1, 2015 and for the four financial years following that financial year
and will instead be provided only as information on the aggregate compensation of the Management
Board. In the financial year ended December 31, 2014, the members of the Management Board (from
January until November 2014 including Peter Heidecker and excluding Helmut Horst as board member,
and in December 2014 with the current board composition) received total compensation in the amount of
e607 thousand.
The members of the Management Board also receive an allowance for a company car for
business and private use. All employment contracts of the members of the Management Board provide
that in the case of sickness compensation will continue to be paid for six months. There are no provisions
under the employment contracts between the Company or the subsidiaries, on the one hand, and one or
more members of the Management Board, on the other hand, which provide for a severance payment or
other benefits in the case of termination of the employment contract. The employment contracts provide,
however, that a severance payment to be made to the members of the Management Board may not
exceed the value of two annual remunerations (compensation cap) and may not exceed the remuneration
payable for the remaining term of the service agreement.
The members of the Management Board are covered under a D&O insurance policy, the costs of
which are borne by the Company (see M.XII. ‘‘Business—Insurance’’). In line with statutory requirements
under the German Stock Corporation Act (Aktiengesetz), the D&O insurance provides for a deductible of
10% of each insured event limited, however, to a maximum of 1.5 times the annual fixed compensation.
With the exception of the voluntary liquidation of CHORUS LIFE Policenfonds GmbH & Co.
Deutschland KG, Neubiberg, Germany, in which Heinz Jarothe was involved as managing director of the
liquidator GermanLIFE Fonds GmbH and which ended on February 19, 2014, none of the members of the
Management Board has been convicted in relation to fraudulent offenses in the last five years. During this
period, no member of the Management Board has been associated in his capacity as a member of an
administrative, management or Supervisory Board, as a partner with unlimited liability, founder or senior
manager with any bankruptcies, receiverships or liquidations. No public incriminations and/or sanctions
have been brought against the members of the Management Board by statutory or regulatory authorities
(including designated professional bodies) in the last five years, nor have these individuals ever been
disqualified by a court from acting as a member of the administrative, management or supervisory body of
a company or from acting in the management or the conduct of affairs of any company.
The current members of the Management Board currently hold shares in the Company as
follows: At the time of the Offering, Mr. Götze holds 3,362 shares (equal to 0.02% of the current share
capital), Mr. Jarothe holds 419,721 shares (equal to 2.41% of the current share capital) and Mr. Horst
holds 3,309 shares in the Company (equal to 0.02% of the current share capital). The members of the
Management Board have informed the Company that they do not intend to subscribe or acquire additional
shares as part of the Offering.
Members of the Management Board also are beneficiaries under a management stock option
program which is administered by the Supervisory Board; see R.VII. ‘‘Description of Share Capital and
Related Information—Stock Option Program’’. Under the Stock Option Program resolved upon by the
general shareholders’ meeting of the Company on March 10, 2015, the Supervisory Board is authorized
to grant up to 300,000 stock options (each entitling to the acquisition of one share in the Company) in
annual tranches to and to allocate the stock options among the members of the Management Board at its
197
sole discretion. Currently, none of the members of the Management Board holds any stock options.
Where a member of the Management Board directly or indirectly holds shares in the Company in addition
to this member’s position on the board, that member may have a particular interest in the Offering
resulting from this shareholding; the same interest follows from the entitlement of the members of the
Management Board to receive a bonus payment and an increase in their annual base salary in case of a
successful Offering (see C.XI. ‘‘The Offering—Interest of Persons involved in the Offering’’). Apart from
the indemnification agreement as further described under P.III. ‘‘Related Party Transactions—
Indemnification Agreement with PELABA Anlagenverwaltungs GmbH & Co. KG and Heinz Jarothe’’
entered into between, inter alia, Heinz Jarothe and CHORUS GmbH, no other potential conflicts of
interests between any duties to the Company and the private interests and/or other duties of the
Company’s Management Board members exist. No family relationships exist between the members of
the Management Board or between the members of the Company’s Management Board and members of
the Company’s Supervisory Board. The Company has at present not granted any loans to members of
the Management Board or assumed any sureties or guarantees for them. There are no agreements with
principal shareholders, customers, suppliers or other persons under which a member of the Management
Board is appointed to the Management Board.
III.
SUPERVISORY BOARD
The Supervisory Board currently consists of three members, who were elected by the
shareholders at the general shareholders’ meeting in accordance with the provisions of the German
Stock Corporation Act (Aktiengesetz).
The Supervisory Board members are elected pursuant to the Company’s Articles of Association
in conjunction with Section 102 of the German Stock Corporation Act (Aktiengesetz) for a maximum
period ending upon termination of the general shareholders’ meeting that resolves on the discharge
(Entlastung) of the Supervisory Board members for the fourth financial year after the commencement of
their term of office. The financial year in which their term of office has commenced will not count for
purposes of calculating such period. Supervisory Board members may be reelected.
According to the Company’s Articles of Association, the members may resign from office, with or
without cause, in the latter case with a notice period of one full calendar month by submitting a written
notice to the Management Board and the chairman of the Supervisory Board.
The Supervisory Board will elect a chairman and a deputy chairman from among its members.
This election is to be held following the general shareholders’ meeting at which the Supervisory Board
members to be elected by the general shareholders’ meeting have been newly elected; this meeting does
not need to be convened separately. The Supervisory Board may also elect a second deputy chairman. If
the chairman or the deputy chairman retires from office prematurely, the Supervisory Board must hold
new elections without undue delay.
The Supervisory Board chairman or, if he or she is unavailable, the deputy chairman is
responsible for convening and chairing the Supervisory Board meetings. The Supervisory Board has a
quorum if at least half of the total number of its members participate in the vote. A member also
participates in voting if he or she abstains from voting. Absent members may participate in voting by
having their written votes delivered. Resolutions of the Supervisory Board will generally be adopted in
meetings. If so provided by the chairman and not being opposed by any member of the Supervisory
Board, Supervisory Board resolutions may also be adopted outside a meeting through the submission of
votes in writing, by telegram, by telex or by telephone.
Unless otherwise provided by mandatory law, Supervisory Board resolutions are adopted by a
simple majority of the votes cast. If there is a tied vote on the Supervisory Board, the chairman will have a
deciding vote if the voting is carried out a second time on the same item.
The Articles of Association also provide for the possibility of the Supervisory Board to establish
committees. Currently, the Supervisory Board has not formed any committees. The Supervisory Board
takes the view that it can perform its tasks efficiently as a whole due to the small number of members.
198
The following table lists the current members of the Supervisory Board, the date on which they
were first appointed, as well as their other positions in administrative, management and supervisory
bodies and as partners in partnerships outside the Company over the past five years.
Name
Peter Heidecker .........
Age First appointed
57
July 31, 2014
Appointed
until
2020
Other memberships in
administrative, management
or supervisory bodies
or as partners in
partnerships in the
previous five years
(current memberships unless
otherwise indicated)
Position
Chairman
•
•
•
PELABA Consult GmbH
(managing director
(Geschäftsführer))
F&F Treuhand & Verwaltung für
Beteiligungen UG
(haftungsbeschränkt) (managing
director (Geschäftsführer))
PELABA Ökofinanz GmbH
(managing director
(Geschäftsführer))
Dr. Heinrich Riederer...
63
July 31, 2014
2020
Deputy chairman
•
Sanofi Aventis
Deutschland GmbH (managing
director (Geschäftsführer)) until
2014
Christine Scheel .........
58
July 31, 2014
2020
Member
•
NATURSTROM AG (member of
the supervisory board
(Aufsichtsrat))
Barmenia Versicherungsgruppe
(member of the advisory board
(Beirat))
HEAG Südhessische Energie AG
(HSE) (member of the
management board (Vorstand))
until 2012
Forest Carbon Group AG
(member of the management
board (Vorstand)) until 2012
bauverein AG (member of the
supervisory board (Aufsichtsrat))
until 2012
Aschaffenburger
Versorgungs-GmbH (member of
the supervisory board
(Aufsichtsrat)) until 2012
HSE NATURpur Energie AG
(member of the supervisory
board (Aufsichtsrat)) until 2012
•
•
•
•
•
•
Peter Heidecker was born in Munich in 1958. Mr. Heidecker studied business administration at
the Universities of Augsburg and Munich and holds a degree in business administration from the
University of Munich. After graduation, he started his career at CONTI-Group, where he held a senior
position in the sales department from 1983 to 1985. Thereafter, between 1985 and 1993, Mr. Heidecker,
inter alia, held several positions at AXA-Colonia Versicherungs AG, including branch manager. In 1993,
he returned to CONTI-Group and served as chief executive officer for sales and real estate funds until
1998. In 1998, Mr. Heidecker founded CHORUS GmbH and started setting up the funds business of
CHORUS Group. He also was responsible for the strategic shift of CHORUS Group towards renewable
energy investments of the funds. In 2014, Mr. Heidecker became chairman of the Supervisory Board of
the Issuer.
Dr. Heinrich Riederer was born in Geiselhöring, Germany, in 1951. Dr. Riederer studied physics
at the Universities of Regensburg and Leicester/England and holds a Ph.D. in biophysics and physical
biochemistry. From 1982 to 1985, he held various scientific positions in the pharmaceutical company
Mack Illertissen. Since 1985, Dr. Riederer has also held various positions at Sanofi Aventis
Deutschland GmbH, including managing director until 2014. Furthermore, Dr. Riederer was from 2009 to
2013 a member of the board of the Verband Forschender Arzneimittelhersteller e.V. (Association of
Research-based pharmaceutical companies (vfa)) and currently serves as member of the board of the
199
health care committee of the Bundesverband Deutscher Industrie e.V. (Federation of German Industries)
and is member of the council of the World Health Summit. In 2014, Dr. Riederer became a member of the
Supervisory Board of the Issuer and deputy chairman of the board.
Christine Scheel was born in Aschaffenburg, Germany, in 1956. Ms. Scheel holds a degree in
pedagogy, sociology and psychology of the University of Erlangen-Nürnberg. After working initially in the
education sector from 1985 to 1986, Ms. Scheel was elected as member of the Bavarian parliament
(Landtag) in 1986 to 1994. Thereafter, from 1994 to January 2012 she became member of the German
federal parliament (Bundestag), where she was chairperson of the financial committee
(Finanzausschuss) from 1998 to 2005. From 2003 to 2010, Ms. Scheel served as member of the
administrative board (Verwaltungsrat) at KfW. Until 2012, Ms. Scheel was a member of the management
board at HEAG Südhessische Energie AG (HSE) and at Forest Carbon Group AG. Since 2013, she
serves as member of the supervisory board at NATURSTROM AG and as member of the advisory board
(Beirat) of Barmenia Versicherungsgruppe. Furthermore, Christine Scheel is the honorary senator
(Ehrensenator) of the Europäisches Wirtschaftsforum e.V., the chairwoman of the board of trustees
(Kuratorium) of the Evangelische Akademie Tutzing and member of the board of trustees (Kuratorium) of
the Schwäbisch-Hall foundation. In 2014, Ms. Scheel became a member of the Supervisory Board of the
Issuer.
The members of the Supervisory Board can be contacted at the Company’s address.
In accordance with the provisions of the Company’s Articles of Association, the remuneration
paid to the Supervisory Board members contains a fixed component of e25,000 per financial year along
with a reimbursement of expenses. The chairman receives an annual fixed amount of e35,000.
The Company has obtained D&O insurance coverage for, among others, the members of the
Supervisory Board, the costs of which are borne by the Company. The members of the Company’s
Supervisory Board do not receive pension or post-employment benefits for their Supervisory Board
activities alone. As of the date hereof, no provisions have been made in this respect.
In the financial year 2014 and for their services in 2014, the members of the Supervisory Board
did not receive any compensation.
None of the members of the Supervisory Board has been convicted in relation to fraudulent
offenses over the last five years. During this period, with the exception of the voluntary liquidation of
CHORUS LIFE Policenfonds GmbH & Co. Deutschland KG, Neubiberg, Germany, in which Peter
Heidecker was involved as managing director of the liquidator GermanLIFE Fonds GmbH and which
ended on February 19, 2014, no member of the Supervisory Board has been associated in his capacity as
a member of an administrative, management or Supervisory Board, as a partner with unlimited liability,
founder or senior manager with any bankruptcies, receiverships or liquidations. No public incriminations
and/or sanctions have been brought against the members of the Management Board by statutory or
regulatory authorities (including designated professional bodies) in the last five years nor have these
individuals ever been disqualified by a court from acting as a member of the administrative, management
or supervisory bodies of a company or from acting in the management or conduct of the affairs of any
company.
The members of the Supervisory Board currently hold shares in the Company as follows:
Mr. Heidecker indirectly (through PELABA Anlagenverwaltungs GmbH & Co. KG and PELABA
Ökofinanz GmbH, both companies affiliated with Mr. Heidecker) holds a total of 3,616,985 ordinary
shares of the Company (or 20.73%), whereas Dr. Riederer and Ms. Scheel do not hold any shares.
Apart from their function as members of a corporate body and the relationships of Peter
Heidecker with CHORUS as further described under P.I. ‘‘Related Party Transactions—Consulting
Agreement with PELABA Consult GmbH’’, P.III. ‘‘Related Party Transactions—Indemnification
Agreement with PELABA Anlagenverwaltungs GmbH & Co. KG and Heinz Jarothe; P.IV. Lease
Agreement with PELABA Vermögensverwaltungs GmbH & Co. KG; and P.VI. ‘‘Related Party
Transactions—Merger Agreement with PELABA Verwaltungs GmbH’’, respectively, the members of the
Supervisory Board do not have any other legal relationships with the Company and have no potential
conflicts of interest with regard to their obligations vis-à-vis the Company, on the one hand, and their
private interests or other obligations on the other hand. No family relationships exist between the
200
members of the Supervisory Board or between members of the Company’s Supervisory Board and the
members of the Company’s Management Board. As of the date hereof, the Company has not granted any
loans to members of the Supervisory Board or assumed any sureties or guarantees for them. There are
no employment contracts between the Company or its subsidiaries, on the one hand, and one or more
members of the Supervisory Board on the other hand, which provide for a severance payment or other
benefits in the case of termination of the employment contract. There are no agreements with principal
shareholders, customers, suppliers or other persons under which a member of the Supervisory Board
was appointed to the Supervisory Board.
IV.
GENERAL SHAREHOLDERS’ MEETING
General shareholders’ meetings (ordinary and extraordinary) are held either at the Company’s
registered office or in a German city with a stock exchange. Each ordinary share (Stammaktie) entitles the
shareholder to one vote in the respective general shareholders’ meetings.
Unless otherwise provided by mandatory law and the Company’s Articles of Association,
resolutions are adopted by a simple majority of the votes cast and, if a capital majority is required, with the
simple majority of the share capital represented on the adoption of a resolution represented at the
adoption of a resolution. According to mandatory law, resolutions of fundamental importance require, in
addition to the majority of votes cast, a majority of three quarters of the share capital represented at the
adoption of the resolution. Resolutions of fundamental importance include in particular:
•
changes of the corporate purpose of the Company;
•
share capital increases, if preference shares are issued, and share capital decreases;
•
creation of authorized or conditional share capital;
•
exclusion of the subscription rights of shareholders;
•
mergers, split-ups, spin-offs as well as the transfer of all assets of the Company;
•
entering into inter-company agreements (Unternehmensverträge) (in particular domination
agreements and profit and loss transfer agreements (Beherrschungs- und
Ergebnisabführungsverträge));
•
change of the corporate form of the Company; and
•
dissolution of the Company.
General shareholders’ meetings are convened by the Management Board. The Supervisory
Board must convene a general shareholders’ meeting whenever the interests of the Company so require.
Upon request of shareholders holding an aggregate of 5% or more of the registered share capital, the
Management Board is obligated to call a general shareholders’ meeting. The annual general
shareholders’ meeting, which decides on the discharge of the Management Board and the Supervisory
Board, profit distributions, appointment of the auditor and the approval of the annual accounts, must be
held within the first eight months of each financial year.
The German Stock Corporation Act (Aktiengesetz) requires the Company to publish notices of
general shareholders’ meetings in the Federal Gazette (Bundesanzeiger) at least 30 days before the day
of the meeting. When calculating the notice period the day on which the invitation is sent and the day of
the shareholders’ meeting are disregarded.
According to Section 14 of the Company’s Articles of Association, shareholders who wish to
attend the annual shareholders’ meeting and exercise their right to vote must register with the Company.
This registration must be made in text form (Textform) in accordance with Section 126b German Civil
Code (Bürgerliches Gesetzbuch) in German or English and must reach the Company at the address
stated in the invitation at least six days prior to the general shareholders’ meeting. The day of the receipt
of the registration and the day of the shareholders’ meeting are not counted for this purpose. The
registration deadline for attending the meeting is published concurrently with the notice of meeting.
201
Neither German law nor the Company’s Articles of Association restrict the right of non-resident or
foreign shareholders to hold shares or to exercise any voting rights attached to these shares.
V.
CORPORATE GOVERNANCE
The German Government Commission of the German Corporate Governance Code
(Regierungskommission Deutscher Corporate Governance Kodex) established by the German Federal
Ministry of Justice in September 2001, approved the German Corporate Governance Code on
February 26, 2002 (the ‘‘Code’’), and most recently adopted various amendments to the Code on
May 5, 2015. The Code contains recommendations and suggestions for the management and
supervision of German listed companies. In this respect, it is based on internationally and nationally
accepted standards for good and responsible corporate management. The Code is intended to make the
German corporate governance system transparent and comprehensible. The Code includes
recommendations (so-called ‘‘shall provisions’’) and suggestions (so-called ‘‘should or can provisions’’)
on corporate governance in relation to shareholders and the general shareholders’ meeting, the
Management Board and the Supervisory Board, transparency, accounting and auditing of financial
statements. The Code is available at: http://www.corporate-governance-code.de.
There is no obligation to comply with the recommendations or suggestions of the Code. However,
Section 161 of the German Stock Corporation Act (Aktiengesetz) obliges the Management Board and the
Supervisory Board of a listed company to annually declare either that the recommendations of the Code
were and are being complied with, or to declare which recommendations were not and are not applied.
This declaration is to be made accessible to shareholders.
Prior to the listing of the Company’s shares on the Frankfurt Stock Exchange, the Company is not
subject to the obligation to render a declaration as to compliance with the Code. The Company currently
complies, and following the listing of the Company’s shares on the Frankfurt Stock Exchange intends to
comply, with the recommendations of the Code, with the following exceptions:
•
No. 3.8 para. 3: According to recommendation no. 3.8 para. 3 of the Code, a deductible shall
be agreed upon for the members of the supervisory board when taking out a D&O liability
insurance policy. CHORUS takes the view that such a deductible is not in itself suitable to
increase the performance and sense of responsibility of the members of the Supervisory
Board. Furthermore, it reduces the attractiveness of positions within the Supervisory Board
and, thus, limits CHORUS in the competition for qualified candidates.
•
No. 4.2.3 paras. 4 and 5: According to the Code’s recommendation, service agreements of
management board members shall ensure that payments made to a Management Board
member on premature termination of his/her contract, including fringe benefits, do not
exceed the value of two years’ compensation (severance pay cap) and compensate no more
than the remaining term of the employment contract. Furthermore, payments promised in
the event of premature termination of a management board member’s contract due to a
change of control shall not exceed 150% of the severance payment cap. The current service
agreements of the Management Board members do not contain such provisions. The
amount of any possible severance payment will be part of an agreement which will be signed
upon termination of the respective service agreement of a member of the Management
Board. CHORUS is convinced that the Supervisory Board will—in negotiations with the
leaving member of the Management Board—take sufficient account of CHORUS’ interests
and not grant an excessive severance payment, also not in case of a change of control.
•
Nos. 4.2.4 and 4.2.5: According to the Code’s recommendations, the compensation of the
members of the management board shall be disclosed by name, divided into fixed and
variable components as well as fringe benefits. These recommendations are not complied
with because the shareholders’ meeting of the Company held on March 10, 2015 resolved
that the compensation of the members of the Management Board shall not be disclosed by
name in the annual consolidated financial statements of the Company to be prepared for the
fiscal years 2015 up to (and including) 2019 in accordance with Sections 286(5),
314(2) sentence 2, 315a(1) of the German Commercial Code (Handelsgesetzbuch). For the
duration of this ‘‘opt-out’’ resolution, the Company will abstain from including the disclosures
recommended under No. 4.2.5 para. 3 of the Code in the Company’s compensation report.
202
•
No. 5.1.2 para. 2 sentence 3: According to the recommendation in no. 5.1.2 para. 2
sentence 3 of the Code, an age limit for members of the management board shall be
specified. Currently, no such age limit has been specified, as the Supervisory Board wants
CHORUS to have the flexibility to benefit from the experience of members of the
Management Board irrespective of their age.
•
No. 7.1.2 sentence 4: According to the Code’s recommendations, interim reports shall be
publicly accessible within 45 days of the end of the reporting period. The Company will
publish its interim reports in accordance with statutory provisions within two months after the
end of a calendar quarter. The Management Board and the Supervisory Board think that
such a further shortening of this time period is not reasonable for the Company in light of the
costs and efforts related thereto.
203
T.
I.
TAXATION
IN
TAXATION
GERMANY
The following section presents a number of key German taxation principles which generally are
or can be relevant to the acquisition, holding or transfer of shares both by a shareholder (an individual, a
partnership or corporation) that has a tax domicile in Germany (that is, whose place of residence, habitual
abode, registered office or place of management is in Germany) and by a shareholder without a tax
domicile in Germany. The information is not exhaustive and does not constitute a definitive explanation of
all possible aspects of taxation that could be relevant for shareholders. The information is based on the
tax law in force in Germany as of the date of this Prospectus (and its interpretation by administrative
directives and courts) as well as typical provisions of double taxation treaties that Germany has
concluded with other countries. Tax law can change – sometimes retrospectively. Moreover, it cannot be
ruled out that the German tax authorities or courts may consider an alternative assessment to be correct
that differs from the one described in this section.
This section cannot serve as a substitute for tailored tax advice to individual shareholders.
Shareholders are therefore advised to consult their tax advisers regarding the tax implications of the
acquisition, holding or transfer of shares and regarding the procedures to be followed to achieve a
possible reimbursement of German withholding tax (Kapitalertragsteuer). Only such advisors are in a
position to take the specific tax-relevant circumstances of individual shareholders into due account.
1.
Taxation of the Company
As a rule, the taxable profits generated by German corporations are subject to corporate income
tax (Körperschaftsteuer). The rate of the corporate income tax is a standard 15% for both distributed and
retained earnings, plus a solidarity surcharge (Solidaritätszuschlag) amounting to 5.5% on the corporate
income tax liability (i.e., 15.825% in total).
In general, dividends (Dividenden) or other profit shares that the Company derives from domestic
or foreign corporations are effectively 95% exempt from corporate income tax, as 5% of such receipts are
treated as a non-deductible business expenses, and are therefore subject to corporate income tax (and
solidarity surcharge). However, as an exception to the above, dividends that the Company subjects
receives or received from domestic or foreign corporations after February 28, 2013, are subject to
corporate income tax (including solidarity surcharge thereon) and trade tax, if the Company holds a direct
participation of less than 10% in the share capital of such corporation at the beginning of the calendar
year (hereinafter in all cases, a ‘‘Portfolio Participation’’ – Streubesitzbeteiligung). Participations of at
least 10% acquired during a calendar year are deemed to have been acquired at the beginning of the
calendar year. Participations in the share capital of other corporations which the Company holds through
a partnership (including those that are co-entrepreneurships (Mitunternehmerschaften)) are attributable
to the Company only on a pro rata basis at the ratio of the interest share of the Company in the assets of
relevant partnership.
The Company’s gains from the disposal of shares in a domestic or foreign corporation are in
general effectively 95% exempt from corporate income tax (including the solidarity surcharge thereon),
regardless of the size of the participation and the holding period. 5% of the gains are treated as
non-deductible business expenses and are therefore subject to corporate income tax (plus the solidarity
surcharge thereon) at a rate of 15.825%. Conversely, losses incurred from the disposal of such shares
are generally not deductible for corporate income tax purposes. Currently, there are no specific rules for
the taxation of gains arising from the disposal of Portfolio Participations.
Additionally, German corporations are also usually subject to trade tax (Gewerbesteuer) with
respect to their taxable trade profit (Gewerbeertrag) generated at their permanent establishments
maintained in Germany (inländische Betriebstätten). Trade tax generally ranges from approximately 7%
to 18.2% of the taxable trade profit depending on the municipal trade tax multiplier applied by the relevant
municipal authority (Hebesatz). When determining the income of the corporation that is subject to
corporate income tax, trade tax may not be deducted as a business expense. In principle, profits derived
from the sale of shares in another domestic and foreign corporation are treated in the same way for trade
tax purposes as for corporate income tax. Contrary to this, profit shares derived from domestic and
foreign corporations are only effectively 95% exempt from trade tax, if the Company either held an
interest of at least 15% in the share capital of the company making the distribution at the beginning of the
204
relevant assessment period or—in the case of foreign corporations—if the Company has held a stake of
this size since the beginning of such period (trade tax participation exemption privilege –
gewerbesteuerliches Schachtelprivileg). If the participation is held in a foreign corporation as per Article 2
of Council Directive 2011/96/EU of November 30, 2011 (the ‘‘Parent-Subsidiary Directive’’) with its
registered office in another member state of the European Union, the trade tax participation exemption
privilege becomes applicable from an interest of 10% in the share capital of the foreign corporation at the
beginning of the relevant assessment period. Otherwise, the profit shares will be subject to trade tax in
full. Additional restrictions apply for profit shares originating from foreign corporations which do not fall
under Article 2 of the Parent-Subsidiary Directive.
The provisions of the so-called interest barrier (Zinsschranke) limit the degree to which interest
expenses are deductible from the tax base. Accordingly, as a rule, interest expenses exceeding interest
income are deductible in an amount of up to 30% of the EBITDA as determined for tax purposes in a given
financial year, although there are exceptions to this rule. Non-deductible interest expenses must be
carried forward to subsequent financial years. EBITDA that has not been fully utilised can under certain
circumstances be carried forward to subsequent years and may be deducted subject to the limitations set
out above. For trade tax purposes, 25% of the interest expenses deductible after applying the interest
barrier are added when calculating the taxable trade profit. Therefore, for trade tax purposes, the amount
of deductible interest expenses is only 75% of the interest expenses deductible for purposes of corporate
income tax.
Under certain conditions, negative income of the Company that has not been offset by current
year positive income can be carried forward or back into other assessment periods. Loss carry-backs to
the immediately preceding assessment period are only permissible up to (e511,500 until 2012) for
corporate income tax but not at all for trade tax purposes. Negative income not offset positive income for
corporate income and trade tax purposes can be carried forward to following taxation periods (tax loss
carry-forward). If in such following taxation period the taxable income or the taxable trade profit exceeds
the e1,000,000 threshold (up to which such income can be offset with the tax loss carry forward in full),
only 60% of the excess amount can be offset by tax loss carry-forwards. The remaining 40% of the
taxable income is subject to tax in any case (minimum taxation – Mindestbesteuerung). Unused tax loss
carry-forwards can, as a rule, be carried forward indefinitely and deducted pursuant to the rules set out
regarding future taxable income or trade income. However, if more than 25% or more than 50% of the
Company’s share capital or voting rights respectively is/are transferred to a purchaser or group of
purchasers within five years, directly or indirectly, or if a similar situation arises (harmful share
acquisition – schädlicher Beteiligungserwerb), the Company’s unutilized losses and interest carryforwards (possibly also EBITDA carry-forwards) will generally be forfeited in part (in case of a
participation of more than 25% but no more than 50%) or in full (in case of a participation of more than
50%) and may not be offset against future profits, certain exceptions apply.
2.
Taxation of the Company in the Reorganization
In the context of the Reorganization, the Company acquired several partnerships and corporate
entities against issuance of new shares. For the Company, these contributions should not lead to tax
events, but should be recorded as a tax neutral acquisition of these partnerships and corporate entities.
3.
Taxation of Shareholders
a.
Income Tax Implications of the Holding, Sale and Transfer of Shares
In terms of the taxation of shareholders of the Company, a distinction must be made between
taxation in connection with the holding of shares (T.I.3.b. ‘‘—Taxation of Dividends’’) and taxation in
connection with the sale of shares (T.I.3.e. ‘‘—Taxation of Capital Gains’’) and taxation in connection with
the gratuitous transfer of shares (T.I.3.h. ‘‘—Inheritance and Gift Tax’’).
b.
Taxation of Dividends
Withholding Tax
As a general rule, the dividends distributed to the shareholder are subject to a withholding tax
(Kapitalertragsteuer) of 25% and a solidarity surcharge of 5.5% thereon (i.e., 26.375% in total plus church
tax, if applicable). This, however, will not apply if and to the extent that dividend payments are funded from
205
the Company’s contribution account for tax purposes (steuerliches Einlagekonto; Section 27 of the
German Corporate Income Tax Act (Körperschaftsteuergesetz – ‘‘KStG’’)); in this case, no withholding
tax will be withheld. The assessment basis for the withholding tax is the dividend approved by the general
shareholders’ meeting.
If shares – as it is the case with the shares in the Company – are admitted for collective custody
by a securities custodian bank (Wertpapiersammelbank) pursuant to Section 5 German Act on Securities
Accounts (Depotgesetz) and are entrusted to such bank for collective custody (Sammelverwahrung) in
Germany, the withholding tax is withheld and passed on for the account of the shareholders by the
domestic credit or financial services institution (inländisches Kredit- oder Finanzdienstleistungsinstitut)
(including domestic branches of such foreign enterprises), by the domestic securities trading company
(inländisches Wertpapierhandelsunternehmen) or the domestic securities trading bank (inländische
Wertpapierhandelsbank) which keeps or administers the shares and disburses or credits the dividends or
disburses the dividends to a foreign agent or by the central securities depository
(Wertpapiersammelbank) to which the shares were entrusted for collective custody if the dividends are
disbursed to a foreign agent by such central securities depository (Wertpapiersammelbank) (hereinafter
in all cases, the ‘‘Dividend Paying Agent’’). The Company does not assume any responsibility for the
withholding of the withholding tax.
In general, the withholding tax must be withheld without regard to whether and to which extent the
dividend is exempt from tax at the level of the shareholder and whether the shareholder is domiciled in
Germany or abroad.
However, withholding tax on dividends distributed to a company domiciled in another
EU Member State within the meaning of Article 2 of the Parent-Subsidiary Directive, may be refunded
upon application and subject to further conditions. This also applies to dividends distributed to a
permanent establishment of such a parent company in another Member State of the European Union or
to a parent company that is subject to unlimited tax liability in Germany, provided that the participation in
the Company is actually part of such permanent establishment’s business assets. Further requirements
for the refund of withholding tax under the Parent-Subsidiary Directive are that the shareholder has
directly held at least a 10% of the company’s registered capital for one year and that a respective
application is filed with the German Federal Central Tax Office (Bundeszentralamt für Steuern,
Hauptdienstsitz Bonn-Beuel, An der Küppe 1, 53225 Bonn, Germany).
With respect to distributions made to other shareholders without a tax domicile in Germany, the
withholding tax rate can be reduced in accordance with the double taxation treaty if Germany has entered
into a double taxation treaty with the shareholder’s country of residence and if the shares neither form part
of the assets of a permanent establishment or a fixed place of business in Germany, nor form part of
business assets for which a permanent representative in Germany has been appointed. The withholding
tax reduction is generally granted by the German Federal Central Tax Office (Bundeszentralamt für
Steuern) upon application in such a manner that the difference between the total amount withheld,
including the solidarity surcharge, and the reduced withholding tax actually owed under the relevant
double taxation treaty (generally 15%) is refunded by the German Federal Central Tax Office.
Forms for the reimbursement from the withholding at source procedure are available at the
German Federal Central Tax Office (http://www.bzst.bund.de) as well as at German embassies and
consulates.
If dividends are distributed to corporations subject to limited taxation, i.e., corporations with no
registered office or place of management in Germany and if the shares neither belong to the assets of a
permanent establishment or fixed place of business in Germany nor are part of business assets for which
a permanent representative in Germany has been appointed, two-fifths of the tax withheld at the source
can generally be refunded even if not all of the prerequisites for a refund under the Parent-Subsidiary
Directive or the relevant double taxation treaty are fulfilled. The relevant application forms are available at
the German Federal Central Tax Office (at the address specified above).
The aforementioned possibilities for a refund of withholding tax depend on certain other
conditions being met (particularly the fulfillment of so-called substance requirements –
Substanzerfordernisse).
206
In a ruling dated October 20, 2011, the European Court of Justice (‘‘ECJ’’) held that the German
taxation of dividends distributed by German corporations to companies located in another EU Member
State violated EU law because these dividends would, if the shareholding does not reach the minimum
participation of 10% provided for in the Parent-Subsidiary Directive, economically be subject to higher
taxation than dividends which are distributed to companies with their registered offices in the Federal
Republic of Germany. According to the judgment of the ECJ, the German taxation of dividends also
violated the Treaty on the EEA because dividends which are distributed to companies with their
registered offices in Iceland or Norway would economically be subject to a higher taxation than dividends
distributed to companies with their registered office in the Federal Republic of Germany.
The legislator reacted to the ECJ’s ruling dated October 20, 2011 by enacting the Act for the
implementation of the ECJ’s ruling dated October 20, 2011 (Gesetz zur Umsetzung des EuGH-Urteils
vom 20. Oktober 2011 in der Rechtssache C-284/09, (BR-Drucks. 146/13/B)) which provides for (i) new
rules for the taxation of dividends from Portfolio Participations received after February 28, 2013 (see
T.I.1. ‘‘—Taxation of the Company’’) and (ii) for a mechanism under which corporations domiciled in the
EU or EEA, which do not fall under the Parent-Subsidiary Directive, can apply for a refund of withholding
tax on the dividends received until February 28, 2013 if certain prerequisites are met. Please note that
such a refund might in certain situations also be available with regard to withholding tax imposed on
dividends received after February 28, 2013 if corporate shareholders, which are domiciled in the EU or
EEA, directly hold at least 10% in the equity capital of the Company at the beginning of the relevant
calendar year or acquire a stake of at least 10% in the equity capital of the Company in the course of the
relevant calendar year, but do not fulfill the requirements provided for by the Parent-Subsidiary Directive
at the time they apply for such refund. Shareholders affected by these rules are recommended to consult
their tax advisors.
The Dividend Paying Agent which keeps or administrates the shares and pays or credits the
capital income is required tocreate so called pots for the loss set off (Verlustverrechnungstöpfe) to allow
for setting off of negative capital income with current and future positive capital income. A set off of
negative capital income at a Dividend Paying Agent with positive capital income at a different Dividend
Paying Agent is not possible and can only be achieved in the course of the income tax assessment at the
level of the respective investor. In this case the taxpayer has to apply for a certificate confirming the
amount of losses not offset with the Dividend Paying Agent where the pots for the loss set off exists. The
application is irrevocable and has to reach the Dividend Paying Agent until 15th December of the
respective year. Otherwise the losses will be carried for-ward to the following year by the Dividend Paying
Agent.
Withholding tax will not be withheld by a Dividend Paying Agent if the taxpayer provides the
Dividend Paying Agent with an application for exemption (Freistellungsauftrag) to the extent the capital
income does not exceed the annual lump sum allowance (Sparerpauschbetrag) of e801 (e1,602 for
married couples filing jointly) as outlined on the application for exemption. Furthermore, no withholding
tax will be levied if the taxpayer provides the Dividend Paying Agent with a non-assessment certificate
(Nichtveranlagungsbescheinigung) to be applied for with the competent tax office of the investor.
c.
Taxation of Dividends of Shareholders with a Tax Domicile in Germany
Shares Held as Non-Business Assets
Dividends distributed to shareholders with a tax domicile in Germany whose shares are held as
non-business assets form part of their taxable capital investment income, which is subject to a special
uniform income tax rate of 25% plus solidarity surcharge of 5.5% thereon (i.e., 26.375% in total plus
church tax, if applicable). The income tax owed for this dividend income is in general satisfied by the
withholding tax withheld by the Dividend Paying Agent (flat-rate withholding tax – Abgeltungsteuer).
Income-related expenses cannot be deducted from the shareholder’s capital investment income
(including dividends), except for an annual lump-sum deduction (Sparer-Pauschbetrag) of e801 (e1,602
for married couples filing jointly). However, the shareholder may request that his capital investment
income (including dividends) along with his other taxable income be subject to progressive income tax
rate (instead of the uniform tax rate for capital investment income) if this results in a lower tax burden
(Günstigerprüfung). This request may only be exercised consistently for all capital investment income
and be exercised jointly in case of married couples filing jointly. In this case the withholding tax will be
credited against the progressive income tax and any excess amount will be refunded. Pursuant to the
207
current view of the German tax authorities (which has recently been rejected by a fiscal court; a decision
by the German Federal Tax Court (Bundesfinanzhof) is still pending), income-related expenses cannot
be deducted from the capital investment income, except for the aforementioned annual lump-sum
deduction.
Exceptions from the flat rate withholding tax apply upon application for shareholders who have a
shareholding of at least 25% in the Company and for shareholders who have a shareholding of at least
1% in the Company and work for the Company in a professional capacity.
With regard to dividends received after December 31, 2014, an automatic procedure for
deducting church tax applies unless the shareholder has filed a blocking notice (Sperrvermerk) with the
German Federal Central Tax Office. The church tax payable on the dividend is withheld and passed on by
the Dividend Paying Agent. In this case, the church tax for dividends is satisfied by the Dividend Paying
Agent withholding such tax. Church tax withheld at source may not be deducted as a special expense
(Sonderausgabe) in the course of the tax assessment, but the Dividend Paying Agent may reduce the
withholding tax (including the solidarity surcharge) by 26.375% of the church tax to be withheld on the
dividends. If the shareholder has filed a blocking notice and no church tax is withheld by a Dividend
Paying Agent, a shareholder subject to church tax is obliged to declare the dividends in his income tax
return. The church tax on the dividends is then levied by way of a tax assessment.
As an exemption, dividend payments that are funded from the Company’s contribution account
for tax purposes (steuerliches Einlagekonto; Section 27 KStG) and are paid to shareholders with a tax
domicile in Germany whose shares are held as non-business assets, do—contrary to the above—not
form part of the shareholder’s taxable income. If the dividend payment funded from the Company’s
contribution account for tax purposes (steuerliches Einlagekonto; Section 27 KStG) exceeds the
shareholder’s acquisition costs, negative acquisition costs will arise which can result in a higher capital
gain in case of the shares’ disposal (cf. below). This will not apply if (i) the shareholder or, in the event of a
gratuitous transfer, its legal predecessor, or, if the shares have been gratuitously transferred several
times in succession, one of his legal predecessors at any point during the five years preceding the
(deemed, as the case may be,) disposal directly or indirectly held at least 1% of the share capital of the
Company (a ‘‘Qualified Holding’’) and (ii) the dividend payment funded from the Company’s contribution
account for tax purposes (steuerliches Einlagekonto; Section 27 KStG) exceeds the acquisition costs of
the shares. In such a case of a Qualified Holding, a dividend payment funded from the Company’s
contribution account for tax purposes (steuerliches Einlagekonto; Section 27 KStG) is deemed a sale of
the shares and is taxable as a capital gain if and to the extent the dividend payment funded from the
Company’s contribution account for tax purposes (steuerliches Einlagekonto; Section 27 KStG) exceeds
the acquisition costs of the shares. In this case, the taxation corresponds with the description in the
section T.I.3.e. ‘‘—Taxation of Capital Gains’’ made with regard to shareholders maintaining a Qualified
Holding.
Shares Held as Business Assets
Dividends from shares held as business assets of a shareholder with a tax domicile in Germany
are not subject to the flat-rate withholding tax. The taxation depends on whether the shareholder is a
corporation, a sole proprietor or a partnership (co-entrepreneurship). The withholding tax (including the
solidarity surcharge and church tax, if applicable) withheld and paid by the Dividend Paying Agent will be
credited against the shareholder’s income or corporate income tax liability (including the solidarity
surcharge and church tax, if applicable) or refunded in the amount of any excess.
Dividend payments that are funded from the Company’s contribution account for tax purposes
(steuerliches Einlagekonto; Section 27 KStG) and are paid to shareholders with a tax domicile in
Germany whose shares are held as business assets are generally fully tax-exempt in the hands of such
shareholder. To the extent the dividend payments funded from the Company’s contribution account for
tax purposes (steuerliches Einlagekonto; Section 27 KStG) exceed the acquisition costs of the shares, a
taxable capital gain should occur. The taxation of such gain corresponds with the description in the
section T.I.3.e. ‘‘—Taxation of Capital Gains’’ made with regard to shareholders whose shares are held
as business assets (however, as regards the application of the 95% exemption in case of a corporation
this is not undisputed).
208
(i) Corporations: If the shareholder is a corporation with a tax domicile in Germany, the
dividends are in general effectively 95% exempt from corporate income tax and the
solidarity surcharge. 5% of the dividends are treated as a non-deductible business
expenses and are therefore subject to corporate income tax (plus the solidarity
surcharge) at a total tax rate of 15.825%. In other respects, business expenses actually
incurred in direct relation to the dividends may be deducted. However, pursuant to the
Act for the implementation of the ECJ’s ruling dated October 20, 2011 (Gesetz zur
Umsetzung des EuGH-Urteils vom 20. Oktober 2011 in der Rechtssache C-284/09,
(BR-Drucks. 146/13/B)), dividends that the shareholder received and receives after
February 28, 2013, are no longer exempt from corporate income tax (including solidarity
surcharge thereon), if the shareholder only held (or holds) a Portfolio Participation at the
beginning of the calendar year. Participations of at least 10% acquired during a calendar
year are deemed have been acquired at the beginning of the calendar year.
Participations which a shareholder holds through a partnership (including those that are
co-entrepreneurships (Mitunternehmerschaften)) are attributable to the shareholder only
on a pro rata basis at the ratio of the interest share of the shareholder in the assets of
relevant partnership.
Dividends (after deducting business expenses economically related to the dividends) are subject
to trade tax in the full amount, unless the requirements of the trade tax participation exemption privilege
are fulfilled. In this latter case, the dividends are not subject to trade tax; however, trade tax is levied on
the amount considered to be a non-deductible business expenses (amounting to 5% of the dividend).
Trade tax ranges from approximately 7% to 18.2% of the taxable trade profit depending on the municipal
trade tax multiplier applied by the relevant municipal authority.
(ii) Sole Proprietors: If the shares are held as business assets by a sole proprietor with a
tax domicile in Germany, only 60% of the dividends are subject to progressive income
tax (plus the solidarity surcharge) at a total tax rate of up to approximately 47.5% (plus
church tax, if applicable), so-called partial income method (Teileinkünfteverfahren). Only
60% of the business expenses economically related to the dividends are tax-deductible.
If the shares belong to a domestic permanent establishment in Germany of a business
operation of the shareholder, the dividend income (after deducting business expenses
economically related thereto) is not only subject to income tax but is also fully subject to
trade tax, unless the prerequisites of the trade tax participation exemption privilege are
fulfilled. In this latter case the net amount of dividends, i.e., after deducting directly
related expenses, is exempt from trade tax. As a rule, trade tax can be credited against
the shareholder’s personal income tax, either in full or in part, by means of a lump-sum
tax credit method, depending on the level of the municipal trade tax multiplier and certain
individual tax-relevant circumstances of the taxpayer.
(iii) Partnerships: If the shareholder is a commercially active or commercially tainted
partnership (co-entrepreneurship) with a tax domicile in Germany, the income or
corporate income tax is not levied at the level of the partnership but at the level of the
respective partner. The taxation for every partner depends on whether the partner is a
corporation or an individual. If the partner is a corporation, the dividends contained in the
profit share of the shareholder will be taxed in accordance with the principles applicable
for corporations (see T.I.3.c.(i). ‘‘—Corporations’’ above). If the partner is an individual,
the taxation is in line with the principles described for sole proprietors (see
T.I.3.c.(ii). ‘‘—Sole Proprietors’’ above). Upon application and subject to further
conditions, an individual as a partner can have his personal income tax rate lowered for
earnings not withdrawn from the partnership.
In addition, the dividends are generally subject to trade tax in the full amount at the partnership
level if the shares are attributed to a German permanent establishment of the partnership. If a partner of
the partnership is an individual, the portion of the trade tax paid by the partnership pertaining to his profit
share will generally be credited, either in full or in part, against his personal income tax by means of a
lump-sum method — depending on the level of the municipal trade tax multiplier and certain individual
tax-relevant circumstances of the taxpayer. Due to a lack of case law and administrative guidance, it is
currently unclear how the new rules for the taxation of dividends from Portfolio Participations (see
T.I.3.c.(i). ‘‘—Corporations’’ above) might impact the trade tax treatment at the level of the partnership.
209
Shareholders are strongly recommended to consult their tax advisors. Under a literal reading of the law, if
the partnership fulfils the prerequisites for the trade tax exemption privilege at the beginning of the
relevant assessment period, the dividends (after the deduction of business expenses economically
related thereto) should generally not be subject to trade tax. However, in this case, trade tax should be
levied on 5% of the dividends to the extent they are attributable to the profit share of such corporate
partners to whom at least 10% of the shares in the Company are attributable on a look-through basis,
since such portion of the dividends should be deemed to be non-deductible business expenses. The
remaining portion of the dividend income attributable to other than such specific corporate partners
(which includes individual partners and should, under a literal reading of the law, also include corporate
partners to whom, on a look-through basis, only Portfolio Participations are attributable) should not be
subject to trade tax.
d.
Taxation of Dividends of Shareholders without a Tax Domicile in Germany
Shareholders without a tax domicile in Germany, whose shares are attributable to a German
permanent establishment or fixed place of business or are part of business assets for which a permanent
representative in Germany has been appointed, are liable for tax in Germany on their dividend income. In
this respect, the provisions outlined above for shareholders with a tax domicile in Germany whose shares
are held as business assets apply accordingly (see T.I.3.c. ‘‘—Taxation of Dividends of Shareholders with
a Tax Domicile in Germany—Shares Held as Business Assets’’). The withholding tax (including the
solidarity surcharge) withheld and passed on will be credited against the income or corporate income tax
liability or refunded in the amount of any excess.
In all other cases, any German tax liability for dividends is satisfied by the withholding of the
withholding tax by the Dividend Paying Agent. Withholding tax is only reimbursed in the cases and to the
extent described above under T.I.3.b. ‘‘—Withholding Tax.’’
Dividend payments that are funded from the Company’s contribution account for tax purposes
(steuerliches Einlagekonto; Section 27 KStG) are generally not taxable in Germany.
e.
Taxation of Capital Gains
Taxation of Capital Gains of Shareholders with a Tax Domicile in Germany
Shares Held as Non-Business Assets
Gains on the disposal of shares acquired after December 31, 2008 by a shareholder with a tax
domicile in Germany and held as non-business assets are generally – regardless of the holding period –
subject to a uniform tax rate on capital investment income in Germany (25% plus the solidarity surcharge
of 5.5% thereon, i.e., 26.375% in total plus any church tax if applicable).
The taxable capital gain is computed from the difference between (i) the proceeds of the disposal
and (ii) the acquisition costs of the shares and the expenses related directly and materially to the disposal.
Dividend payments that are funded from the Company’s contribution account for tax purposes
(steuerliches Einlagekonto; Section 27 KStG) reduce the original acquisition costs; if dividend payments
that are funded from the Company’s contribution account for tax purposes (steuerliches Einlagekonto;
Section 27 KStG) exceed the acquisition costs, negative acquisition costs – which can increase a capital
gain – can arise in case of shareholders, whose shares are held as non-business assets and do not
qualify as Qualified Holding.
Only an annual lump-sum deduction of e801 (e1,602 for married couples filing jointly) may be
deducted from the entire capital investments income. It is generally not possible to deduct income-related
expenses in connection with capital gains, except for the expenses directly related in substance to the
disposal which can be deducted when calculating the capital gains. Losses on disposals of shares may
only be offset against gains on the disposal of shares.
If the shares are held in custody or administered by a domestic credit institution, domestic
financial services institution, domestic securities trading company or a domestic securities trading bank,
including domestic branches of foreign credit institutions or financial service institutions, or if such an
office executes the disposal of the shares and pays out or credits the capital gains (a ‘‘Domestic Paying
Agent’’), the tax on the capital gains will in general be satisfied by the Domestic Paying Agent withholding
210
the withholding tax on investment income in the amount of 26.375% (including the solidarity surcharge)
on the capital gain and transferring it to the tax authority for the account of the seller.
However, the shareholder can apply for his total capital investment income together with his other
taxable income to be subject to progressive income tax rate as opposed to the uniform tax rate on
investment income, if this results in a lower tax liability (Günstigerprüfung). This request may only be
exercised consistently for all capital investment income and be exercised jointly in case of married
couples filing jointly. In this case the withholding tax is credited against the progressive income tax and
any resulting excess amount will be refunded; limitations on offsetting losses are applicable. Further,
pursuant to the current view of the German tax authorities (which has recently been rejected by a fiscal
court; a decision by the German Federal Tax Court (Bundesfinanzhof) is still pending), income-related
expenses are non-deductible, except for the annual lump-sum deduction. Further, the limitations on
offsetting losses are also applicable under the income tax assessment.
If the withholding tax or, if applicable, the church tax on capital gains is not withheld by a
Domestic Paying Agent, the shareholder is required to declare the capital gains in his income tax return.
The income tax and any applicable church tax on the capital gains will then be collected by way of
assessment.
An automatic procedure for deducting church tax applies unless the shareholder has filed a
blocking notice (Sperrvermerk) with the German Federal Central Tax Office and, church tax on capital
gains is withheld by the Domestic Paying Agent and is deemed to have been paid when the tax is
deducted. A deduction of the withheld church tax as a special expense is not permissible, but the
withholding tax to be withheld (including the solidarity surcharge) is reduced by 26.375% of the church tax
to be withheld on the capital gains.
Regardless of the holding period and the time of acquisition, gains from the disposal of shares are
not subject to a uniform withholding tax but to progressive income tax in case of a ‘‘Qualified Holding’’. In
this case the partial income method applies to gains on the disposal of shares, which means that only
60% of the capital gains are subject to tax and only 60% of the losses on the disposal and expenses
economically related thereto are tax deductible. Even though withholding tax is withheld by a Domestic
Paying Agent in the case of a Qualified Holding, this does not satisfy the tax liability of the shareholder.
Consequently, a shareholder must declare his capital gains in his income tax returns. The withholding tax
(including the solidarity surcharge and church tax, if applicable) withheld and paid will be credited against
the shareholder’s income tax on his tax assessment (including the solidarity surcharge and any church
tax if applicable) or refunded in the amount of any excess.
Shares Held as Business Assets
Gains on the sale of shares held as business assets of a shareholder with a tax domicile in
Germany are not subject to uniform withholding tax. The taxation of the capital gains depends on whether
the shareholder is a corporation, a sole proprietor or a partnership (co-entrepreneurship). Dividend
payments that are funded from the Company’s contribution account for tax purposes (steuerliches
Einlagekonto; Section 27 KStG) reduce the original acquisition costs. In case of disposal a higher taxable
capital gain can arise herefrom. If the dividend payments exceed the shares’ book value for tax purposes,
a taxable capital gain can arise.
(i) Corporations: If the shareholder is a corporation with a tax domicile in Germany, the
gains on the disposal of shares are in general effectively 95% exempt from corporate
income tax (including the solidarity surcharge) and trade tax, currently, regardless of the
size of the participation and the holding period. 5% of the gains are treated as a
non-deductible business expenses and are therefore subject to corporate income tax
(plus the solidarity surcharge) at a tax rate amounting to 15.825% and trade tax
(depending on the municipal trade tax multiplier applied by the municipal authority,
generally between approximately 7% and 18.2%). As a rule, losses on disposals and
other profit reductions in connection with shares (e.g., from a write-down) cannot be
deducted as business expenses. Currently, there are no specific rules for the taxation of
gains arising from the disposal of Portfolio Participations.
211
(ii) Sole Proprietors: If the shares are held as business assets by a sole proprietor with a
tax domicile in Germany, only 60% of the gains on the disposal of the shares are subject
to progressive income tax (plus the solidarity surcharge) at a total tax rate of up to
approximately 47.5%, and, if applicable, church tax (partial-income method). Only 60%
of the losses on the disposal and expenses economically related thereto are tax
deductible. If the shares belong to a German permanent establishment of a business
operation of the sole proprietor, 60% of the gains of the disposal of the shares are, in
addition, subject to trade tax.
Trade tax can be credited towards the shareholder’s personal income tax, either in full or in part,
by means of a lump-sum tax credit method—depending on the level of the municipal trade tax multiplier
and certain individual tax-relevant circumstances of the taxpayer.
(iii) Partnerships: If the shareholder is a commercially active or commercially tainted
partnership (co-entrepreneurship) with a tax domicile in Germany, the income or
corporate income tax is not levied at the level of the partnership but at the level of the
respective partner. The taxation depends on whether the partner is a corporation or an
individual. If the partner is a corporation, the gains on the disposal of the shares as
contained in the profit share of the partner will be taxed in accordance with the principles
applicable for corporations (see T.I.3.e.(i). ‘‘—Corporations’’ above). For capital gains in
the profit share of a partner that is an individual, the principles outlined above for sole
proprietors apply accordingly (partial-income method, see above under
T.I.3.e.(ii). ‘‘—Sole Proprietors’’). Upon application and subject to further conditions, an
individual as a partner can obtain a reduction of his personal income tax rate for earnings
not withdrawn from the partnership.
In addition, gains on the disposal of shares are subject to trade tax at the level of the partnership,
if the shares are attributed to a domestic permanent establishment of a business operation of the
partnership: Generally, at 60% as far as they are attributable to the profit share of an individual as the
partner of the partnership, and, currently, at 5% as far as they are attributable to the profit share of a
corporation as the partner of the partnership. Losses on disposals and other profit reductions in
connection with the shares are currently not considered for the purposes of trade tax if they are
attributable to the profit share of a corporation, and are taken into account at 60% in the context of general
limitations if they are attributable to the profit share of an individual.
If the partner of the partnership is an individual, the portion of the trade tax paid by the partnership
attributable to his profit share will generally be credited, either in full or in part, against his personal income
tax by means of a lump-sum method – depending on the level of the municipal trade tax multiplier and
certain individual tax-relevant circumstances of the taxpayer.
Withholding Tax
In case of a Domestic Paying Agent, the gains of the sale of shares held as business assets are in
general subject to withholding tax in the same way as shares held as non-business assets by a
shareholder (see T.I.3.e. ‘‘—Taxation of Capital Gains of Shareholders with a Tax Domicile in Germany—
Shares Held as Non-Business Assets’’). However, the dividend paying agent will not withhold the
withholding tax, if (i) the shareholder is a corporation, association of persons or estate with a tax domicile
in Germany, or (ii) the shares belong to the domestic business assets of a shareholder, and the
shareholder declares so to the Domestic Paying Agent using the designated official form and certain
other requirements are met. If withholding tax is in nonetheless withheld by a Domestic Paying Agent, the
withholding tax (including the solidarity surcharge and church tax, if applicable) withheld and paid will be
credited against the income or corporate income tax liability (including the solidarity surcharge and church
tax, if applicable) or will be refunded in the amount of any excess.
f.
Taxation of Capital Gains of Shareholders without a Tax Domicile in Germany
Capital gains derived by shareholders with no tax domicile in Germany are only subject to
German tax if the selling shareholder has a Qualified Holding in the Company or the shares belong to a
domestic permanent establishment or fixed place of business or are part of business assets for which a
permanent representative in Germany has been appointed.
212
In case of a Qualified Holding, 5% of the gains on the disposal of the shares are currently in
general subject to corporate income tax plus the solidarity surcharge, if the shareholder is a corporation. If
the shareholder is a private individual, only 60% of the gains of the disposal of the shares are subject to
progressive income tax plus the solidarity surcharge (partial-income method). However, most double
taxation treaties provide for exemption from German taxation and assign the right of taxation to the
shareholder’s country of residence. According to the tax authorities there is no obligation to withhold
withholding tax at source in the case of a Qualified Holding if the shareholder submits to the Domestic
Paying Agent a certificate of domicile issued by a foreign tax authority.
With regard to gains or losses of the disposal of shares belonging to a domestic permanent
establishment or fixed place of business or which are part of business assets for which a permanent
representative in Germany has been appointed, the above-mentioned provisions pertaining to
shareholders with a tax domicile in Germany whose shares are business assets apply mutatis mutandis
(see T.I.3.e. ‘‘Taxation of Capital Gains—Taxation of Capital Gains of Shareholders with a Tax Domicile
in Germany—Shares Held as Business Assets’’). The Domestic Paying Agent can refrain from deducting
the withholding tax if the shareholder declares to the Domestic Paying Agent on an official form that the
shares form part of domestic business assets and certain other requirements are met.
g.
Special Treatment of Companies in the Financial and Insurance Sectors and Pension Funds
If financial institutions or financial services providers hold or sell shares that are allocable to their
trading book pursuant to Section 1a of the German Banking Act (Gesetz über das Kreditwesen), they will
neither be able to use the partial income method nor have 60% of their gains exempted from taxation nor
be entitled to the effective 95% exemption from corporate income tax plus the solidarity surcharge and
any applicable trade tax. Thus, dividend income and capital gains are fully taxable. The same applies to
shares acquired by financial institutions in the meaning of the German Banking Act for the purpose of
generating profits from short-term proprietary trading. The preceding sentence applies accordingly for
shares held in a permanent establishment in Germany by financial institutions, financial service
providers, and finance companies tax resident in another member state of the European Union or in other
signatory states of the EEA Agreement. Likewise, the tax exemption described earlier afforded to
corporations for dividend income and capital gains from the sale of shares does not apply to shares that
qualify as a capital investment in the case of life insurance and health insurance companies, or those
which are held by pension funds.
However, an exemption to the foregoing, and thus a 95% effective tax exemption, applies to
dividends obtained by the aforementioned companies, to which the Parent-Subsidiary Directive applies.
h.
Inheritance and Gift Tax
The transfer of shares to another person mortis causa or by way of gift is generally subject to
German inheritance or gift tax if:
(i) the place of residence, habitual abode, place of management or registered office of the
decedent, the donor, the heir, the donee or another acquirer is, at the time of the asset
transfer, in Germany, or such person, as a German national, has not spent more than
five continuous years outside of Germany without maintaining a place of residence in
Germany, or
(ii) the decedent’s or donor’s shares belonged to business assets for which there had been
a permanent establishment in Germany or a permanent representative had been
appointed, or
(iii) the decedent or the donor, at the time of the succession or gift, held a direct or indirect
interest of at least 10% of the Company’s share capital either alone or jointly with other
related parties.
The small number of double taxation treaties in respect of inheritance and gift tax which Germany
has concluded to date usually provide for German inheritance or gift tax only to be levied in the cases
under (i) and, subject to certain restrictions, in the cases under (ii). Special provisions apply to certain
German nationals living outside of Germany and to former German nationals.
213
i.
Other Taxes
No German capital transfer taxes, value-added-tax, stamp duties or similar taxes are currently
levied on the purchase or disposal or other forms of transfer of the shares. However, an entrepreneur may
opt to subject disposals of shares, which are in principle exempt from value-added-tax, to valueadded-tax if the sale is made to another entrepreneur for the entrepreneur’s business. Wealth tax is
currently not levied in Germany.
II.
TAXATION
1.
Tax Aspects for Austrian Resident Shareholders
IN
AUSTRIA
The following is a brief summary of certain Austrian tax law considerations relating to an
investment in the shares based on Austrian tax laws applicable as of the date of this Prospectus. Those
laws and the application thereof are subject to change, possibly with retroactive effect. This summary only
describes tax implications relating to shareholders who are Austrian tax residents and does not address
any tax law consequences relating to an investment in the shares that arise under the laws of any other
jurisdiction. This section is for general information purposes only and does not purport to address all
aspects of Austrian taxation that may be relevant for shareholders who plan to acquire shares and does
therefore not purport to be a comprehensive description of all the tax considerations which may be
relevant for a decision to invest in, hold or dispose of the shares. The summary is not a substitute for
obtaining individual tax advice from a tax law advisor. Prospective shareholders are therefore urged to
consult their own tax advisers as to the particular tax consequences and tax refund procedures of their
acquiring, holding or disposing of the shares, including the applicability and effect of local, foreign and
other tax laws and tax regulations and possible changes in tax law and tax regulations prior to investing,
since only a specific tax law advice may evaluate the individual tax situation of shareholders in light of
their particular facts and circumstances.
Also, tax considerations relevant to shareholders that are subject to a special tax regime such as,
e.g., private foundations (Privatstiftungen), governmental authorities, investment or pension funds or
credit institutions are not addressed herein.
2.
General
Individuals resident in Austria are subject to Austrian income tax (Einkommensteuer) on their
worldwide income (unlimited tax liability). Individuals are considered Austrian tax residents if they have
either a domicile (Wohnsitz) or their habitual place of abode (gewöhnlicher Aufenthalt) in Austria.
Corporations resident in Austria are subject to Austrian corporate income tax (Körperschaftsteuer) on
their worldwide income (unlimited tax liability). Corporations are considered resident in Austria if either
their place of effective management (Ort der Geschäftsleitung) is in Austria or if they have their legal seat
(Sitz) in Austria. Non-resident individuals or corporations are subject to Austrian corporate income tax
only on income from certain Austrian sources (limited tax liability), e.g., if the shares were held through an
Austrian business.
Both, in case of unlimited and limited tax liability, Austria’s right to tax may be restricted or
reduced by applicable double tax treaties.
Except for Austrian withholding taxes that have to be withheld at source, it is the responsibility of
the relevant shareholder to comply with Austrian tax laws, in particular, to file an annual tax return.
3.
Taxation of Dividends
a.
Resident Individuals
If the shares are held by the shareholders through a securities account with an Austrian bank or
with a domestic branch of a foreign bank (in the following: an ‘‘Austrian Depository Bank’’), the Austrian
Depository Bank will deduct the 25% Austrian withholding tax on any dividends paid on the shares as a
withholding agent. The Austrian Depository Bank may withhold less than 25%, since it may credit any
actually paid foreign withholding taxation up to 15% of the respective dividends. Distributions paid from
the Company’s capital contribution account are not taxed as dividends and may, if the sum of such
distributions exceeds the acquisition costs of the shareholder, lead to taxable capital gains.
214
For resident individuals, the dividend withholding tax constitutes a final taxation
(Endbesteuerungswirkung) finally settling the tax burden of such resident individual for the dividends; no
further Austrian income tax will be payable in this respect and the dividends do not have to be included in
such resident individual’s annual income tax return (Einkommensteuererklärung).
If an Austrian resident shareholder does not hold the shares through an Austrian Depository
Bank, the resident individual will have to declare his or her dividend income in the annual income tax
return; the special tax rate of 25% will also apply as well as the effect of a final taxation
(Endbesteuerungswirkung).
If the 25% flat income tax rate is higher than the resident shareholder’s personal income tax rate,
the shareholder may opt to have the dividends taxed at the personal income tax rate; whether such option
is beneficial has to be determined on an individual basis.
Under the double tax treaty between Germany and Austria, Germany may also levy taxes on
dividends paid on the shares to Austrian tax residents. Those German taxes may, however, not exceed
15% of the gross amount of the dividends. Any taxes paid for (or by) an Austrian resident individual in
Germany up to the amount of 15% of the gross dividend income can be credited against the individual’s
income tax liability in Austria. The described treatment may, however, not apply if the shares are held in a
German permanent establishment (Betriebsstätte) or a German fixed base (feste Einrichtung).
Expenses and costs (Aufwendungen und Ausgaben) that are directly connected with the shares
are not tax effective.
b.
Resident Corporations
Dividend paid on the shares to Austrian corporate shareholders is generally exempt from taxation
in Austria. The exemption applies, because the Company has the legal form of corporations listed in the
EU Parent Subsidiary Directive (90/435/EEC) and is not exempt from (corporate) tax in Germany and a
potential corporate income tax is levied on the Company’s income at a rate of at least 15%. If this
exemption would not apply, dividends received by Austrian corporate shareholders would be subject to
corporate income tax at the general corporate income tax rate of 25%.
If the shares are held by corporate shareholders through an Austrian Depository Bank, the bank
will deduct the 25% Austrian withholding tax, unless the shareholder files a declaration of exemption
(Befreiungserklärung) with the Austrian Depository Bank. If withholding taxation is imposed it would be
refunded (or credited onto the corporate shareholder’s tax liability).
Under the double tax treaty between Germany and Austria, Germany may also levy taxes on
dividends. German withholding taxes may, however, not exceed 15% of the gross amount of such
dividends or, if the direct shareholding is at least 10% and if shares are held by a corporation, German
withholding taxes may not exceed 5% of the gross amount of such dividends; German laws implementing
the EU Parent-Subsidiary Directive may even reduce the tax burden.
Expenses and costs (Aufwendungen und Ausgaben) that are directly connected with dividends
paid on the shares are not tax effective, unless the exception for the deduction of interest expenses for
debt financed participations applies.
4.
Austrian Partnerships
If the shares are held by an Austrian partnership which is in principle considered as transparent
for tax purposes, i.e., the profit of the partnership will be attributed to the various partners, the tax
treatment of dividends distributed by the Company to the partnership depends on the tax status of the
respective partner. For certain corporate shareholders such as, e.g., pension funds, special tax rules may
apply.
215
5.
Taxation of Capital Gains
a.
Taxation of Capital Gains of shareholders with a Tax Domicile in Austria
Shares Held as Non-Business Assets
Generally income arising with respect to the shares in the form of realized capital gains
(Einkünfte aus realisierten Wertsteigerungen) qualifies as ‘investment income’ (Einkünfte aus
Kapitalvermögen) and is, as such, taxed under a special regime at a flat 25% tax rate. Realized capital
gains are the difference between (i) the amount realized (e.g., the sale proceeds, the redemption or other
pay-off amount, or the fair market value in case of a deemed realization) and (ii) the acquisition costs. If
distributions from the Company’s capital contribution account exceed a shareholder’s acquisition costs,
the excess would also be taxed as capital gains.
For shares held as non-business assets, the acquisition costs do not include ancillary acquisition
costs (Anschaffungsnebenkosten). An average price is determined regarding shares, not acquired at the
same time, but held in the same securities account with the same securities identification number.
Expenses and costs (Aufwendungen und Ausgaben) that are directly connected with investment income
are not tax effective.
Capital gains are not only taxed upon an actual disposition or redemption of the shares, but also
upon a deemed realization, particularly upon giving up the residency status in Austria (i.e., move abroad,
unless in case of final taxation if the Austrian custodian is notified), or upon withdrawals (Entnahmen) and
other transfers of shares from one securities account to another one. In both cases exemptions are
available upon request, regarding the loss of the residency status if the shareholder moves to an
EU Member State (deferral of tax) and regarding withdrawals and other transfers from a securities
account if an information procedure is fulfilled.
If an Austrian custodian (depotführende Stelle) or an Austrian paying agent (auszahlende Stelle)
is involved in paying out capital gains, 25% withholding tax is to be deducted by the custodian or agent.
The 25% withholding tax generally results in a final income taxation; an option to assess the income at the
progressive income tax rate exists (in particular relevant for shareholders whose regular personal income
tax rate is lower than 25%). If no withholding tax is imposed (e.g., because the shares are held through a
foreign paying agent), the investment income arising from the shares has to be included in the
shareholder’s income tax return in accordance with the law and will generally be subject to the special
25% flat tax.
Losses from shares held as private assets may only offset other investment income (excluding,
inter alia, interest income from bank deposits and other claims against banks) and cannot offset any other
income. Mandatory loss-offsetting rules to be handled by Austrian custodians apply. A carry-forward of
losses is not possible in this context.
Shares Held as Business Assets
Generally, the same rules as described in the previous heading apply regarding shares that are
held as business assets by tax residents who are individuals. The most important differences are the
following:
•
Realized capital gains, contrary to dividends, have to be included in the annual tax return,
since despite a 25% withholding taxation that is also imposed in the context of shares held as
business assets if an Austrian custodian is involved, no final income taxation applies.
•
Write-downs and realized losses regarding the shares held as business assets may be
offset with positive income from realized capital gains of such financial assets, income from
derivatives and with income from appreciations in value of such assets in the first place; 50%
of the remaining losses may be offset against other income or carried forward. The custodian
agent does not implement the offsetting of losses (as mentioned above) with respect to
deposit accounts that are not privately held; instead losses are taken into account upon
assessment.
216
•
The acquisition costs of shares held as business assets may also include ancillary costs
incurred upon the acquisition.
It is noted that expenses and costs (Aufwendungen und Ausgaben) directly connected with
investment income are also not tax effective in case the shares are held as business assets.
Corporations
Capital gains derived from a disposition of the shares by corporate shareholders are subject to
corporate income tax at the general corporate income tax rate of 25%, unless the participation exemption
applies (minimum holding period one year, minimum percentage of participation 10%, no low taxation of
the Company, not opted out of the exemption).
If the corporate shareholders hold shares through a securities account with an Austrian
Depository Bank, the bank, as withholding agent, will deduct up to the 25% Austrian withholding tax.
Corporate shareholders holding the shares as business property and deriving capital gains from the
disposition of shares may avoid the application of such withholding tax by filing a declaration of exemption
(Befreiungserklärung) with the Austrian withholding tax agent.
Losses can be taken into account in the course of the annual tax assessment. If no declaration of
exemption is submitted, the retained withholding tax can be charged towards the corporate tax debt or
refunded with a potentially exceeding amount.
b.
No Inheritance and Gift Tax, but Notification
The Austrian inheritance and gift tax (Erbschafts- und Schenkungssteuer) was abolished in
2008. However, certain gift notification obligations may apply in case gratuitous transfers of assets
exceed specific thresholds.
The gratuitous transfer of assets to (Austrian or foreign) private law foundations and comparable
legal estates is subject to foundation tax (Stiftungseingangssteuer) pursuant to the Austrian Foundation
Tax Act (Stiftungseingangssteuergesetz). Such tax is triggered if the transferor and/or the foundation at
the time of transfer have a domicile, their habitual abode, their legal seat or their place of effective
management in Austria. The tax basis is the fair market value of the assets transferred minus any debts,
calculated at the time of transfer. The tax rate is in general 2.5%, with a higher rate of 25% applying in
special cases.
c.
Other Taxes
No Austrian stock exchange transfer tax, value-added tax or stamp duty will be levied on the
purchase, sale or other disposition of the shares.
217
U. UNDERWRITING
The Company, the Major Shareholder, the members of the Management Board, the Lending
Shareholders and the Underwriters entered into an underwriting agreement dated June 19, 2015 (the
‘‘Underwriting Agreement’’) with respect to the offer and sale of the shares offered hereby.
The Offering consists of: 12,000,000 New Shares of the Company from a capital increase
approved by the extraordinary general shareholders’ meeting of the Company held on May 20, 2015;
737,384 Offered Existing Shares of the Company from the holdings of the Selling Shareholders; and
1,909,928 additional shares of the Company from the holdings of the Lending Shareholders to cover
potential Over-Allotments. All Offer Shares are ordinary no par value bearer shares with a notional
amount of the share capital of e1.00 each and vested with full dividend rights as of January 1, 2015.
The Offering includes (i) a public offering to retail and institutional investors in Germany and
Austria, and (ii) a private placement to selected institutional investors in jurisdictions outside Germany,
Austria and the United States in reliance on Regulation S under the Securities Act.
Pursuant to the terms of the Underwriting Agreement and subject to certain conditions, each
Underwriter agreed to use its best efforts to offer the percentage of Offer Shares set forth below opposite
such Underwriter’s name:
Number of
Shares
Underwriters
Percentage of
Shares (in %)
Joh. Berenberg, Gossler & Co. KG, Neuer Jungfernstieg 20, 20354
Hamburg ....................................................................................
11,717,849
80
BHF-BANK Aktiengesellschaft, Bockenheimer Landstraße 10, 60323
Frankfurt am Main........................................................................
2,929,462
20
Total ............................................................................................
14,647,312
100.0
The Underwriting Agreement provides that the obligations of the Underwriters are subject to the
fulfillment of certain customary conditions.
I.
COMMISSIONS
The Underwriters will offer the Offer Shares at the offer price. The Company (for the New Shares
offered from the IPO Capital Increase) and the Selling Shareholders (for the Offered Existing Shares
offered from their own holdings) will each pay the Underwriters commissions consisting of a basic
commission of 2.75 percent of the corresponding aggregate gross sales proceeds. For the shares offered
from the holdings of the Lending Shareholders in connection with the Over-Allotment option, the Issuer
will pay the Underwriters upon exercise of the Greenshoe Option a basic commission of 2.75 percent of
the offer price for the New Shares issued to the Underwriters from authorized capital. In addition, the
Company and the Selling Shareholders will each pay the Underwriters an additional incentive fee,
payable entirely at the sole discretion of the Company, of 1.00 percent of the aggregate gross Offering
proceeds. The decision to pay any discretionary fee, its amount and its split between the Underwriters are
within the sole discretion of the Issuer, and such decision must be made and notified to the Underwriters,
with regard to the New Shares and the Offered Existing Shares, on the day on which offer price and
allotment are determined and, with regard to the Over-Allotment Shares, on the day following the day on
which the Greenshoe Option is exercised. The Selling Shareholders have also agreed to reimburse the
Underwriters for certain expenses incurred by them in connection with the Offering. See also
P.IX. ‘‘Related Party Transactions—Indemnification and Cost Reimbursement Declarations by the
Selling Shareholders’’.
II.
SECURITIES LOAN
AND
GREENSHOE OPTION
To cover a potential Over-Allotment of shares, the Lending Shareholders will make available to
Berenberg, as Stabilization Manager, on behalf of the Underwriters, 1,909,928 shares in the Company by
way of a non interest-bearing securities loan. The Issuer has granted the Underwriters the Greenshoe
Option. This option expires 30 calendar days following the date on which the shares commence trading
on the regulated market of the Frankfurt Stock Exchange. The shares in the Company to be provided to
218
Berenberg (acting on behalf of the Underwriters) in order to enable Berenberg to redeliver shares in the
Company under the securities loan to the above mentioned Lending Shareholders upon exercise of the
Greenshoe Option would be issued by the Company from the Authorized Capital 2015/I.
III.
TERMINATION/INDEMNIFICATION
The Underwriting Agreement provides that the Underwriters may under certain circumstances
terminate the Underwriting Agreement, and therefore their obligation to acquire the Offer Shares, in
certain circumstances, including after the shares have been issued, allotted and listed, up to delivery and
settlement. Grounds for termination include in particular if
•
the Company suffers from material change in its business, prospects, management,
consolidated financial position, shareholders’ equity or results of operations, or material
adverse changes to its business activities since the date of the most recent audited financial
statements of the Company contained in the Offering documents, and which losses or
changes are not disclosed in the Offering documents;
•
trading on the Frankfurt Stock Exchange being suspended or materially limited (other than
for technical reasons);
•
a general moratorium being imposed on commercial banking activities in Frankfurt am Main,
by the responsible authorities after the date of the Underwriting Agreement;
•
a material adverse change in financial, political or economic conditions or currency
exchange rates or currency controls which could have a material adverse impact on the
financial markets in the Federal Republic of Germany; and
•
the outbreak or escalation of hostilities involving, or the declaration of a national emergency
or war by, or the occurrence of any acts of terrorism or any other calamity or crisis or any
change in conditions in the Federal Republic of Germany occurs or intensifies.
If the Underwriting Agreement is terminated, the Offering will not take place, in which case any
allotments already made to investors will be invalidated and investors will have no claim for delivery.
Claims with respect to fees already paid and costs incurred by an investor will be governed solely by the
legal relationship between the investor and the financial intermediary to which the investor submitted its
purchase order. Investors who engage in short-selling bear the risk of being unable to satisfy their
delivery obligations.
The Company will agree in the Underwriting Agreement to indemnify the Underwriters against
certain liabilities that may arise in connection with the Offering, including liabilities under applicable
securities laws.
IV.
SELLING RESTRICTIONS
1.
General
No public offer is being made and no one has taken any action that would, or is intended to,
permit a public offering of the Offer Shares to be made in any country or jurisdiction, other than Germany
and Austria, where any such action for that purpose is required. Accordingly, the Offer Shares may not be
offered or sold, directly or indirectly, and neither this offer document nor any other offering material or
advertisement in connection with the Offer Shares may be distributed or published in or from any country
or jurisdiction except in compliance with any applicable rules and regulations of such country or
jurisdiction. It is the responsibility of any person who receives a copy of this document to satisfy himself or
herself as to full observance of the laws of any relevant territory in respect of any actions he or she may
take, including obtaining of any requisite governmental or other consent or the observance of any
requisite formalities and the payment of any issue, transfer or other taxes due in such territory.
219
2.
United States
The Offer Shares have not been and will not be registered under the Securities Act and may not
be offered or sold within the United States except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act.
3.
United Kingdom
Any offer or sale of the Offer Shares may only be made to persons in the United Kingdom who are
‘‘qualified investors’’ or otherwise in circumstances that do not require publication by the Company of a
prospectus pursuant to section 85(1) of the UK Financial Services and Markets Act 2000. Any investment
or investment activity to which this offer document relates is available only to, and will be engaged in only
with, investment professionals falling within Article 19(5), or fall within section 49(2)(a) to (d) (‘‘high net
worth; unincorporated associations, etc.’’) of the UK Financial Services and Markets Act 2000 (Financial
Promotion) Order 2005 or other persons to whom such investment or investment activity may lawfully be
made available (together, ‘‘relevant persons’’). Persons who are not relevant persons should not take any
action on the basis of this offer document and should not act or rely on it.
4.
European Economic Area
In relation to each member state of the European Economic Area which has implemented the
Prospectus Directive (each, a ‘‘Relevant Member State’’), each Underwriter will represent and agree
that with effect from and including the date on which the Prospectus Directive is implemented in that
Relevant Member State (the ‘‘Relevant Implementation Date’’) it has not made and will not make an
offer of the Offer Shares to the public in that Relevant Member State prior to the publication of a
prospectus in relation to the Offer Shares which has been approved by the competent authority in that
Relevant Member State or, where appropriate, approved in another Relevant Member State and notified
to the competent authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the Relevant Implementation Date, make an
offer of Offer Shares to the public in that Relevant Member State at any time:
•
directed exclusively to any legal entity which is authorized or regulated to operate in the
financial markets or whose sole corporate purpose is to invest in securities;
•
directed exclusively to any legal entities that have met two or more of the following criteria as
shown in their most recent annual or consolidated financial statements: (1) an average of at
least 250 employees during the last financial year; (2) total assets of more than e43,000,000;
and (3) annual net revenues of more than e50,000,000;
•
to fewer than 100 natural or legal persons or, if the Relevant Member State has implemented
the relevant provision of the 2010 PD Amending Directive (as defined below), 150 natural or
legal persons (other than qualified investors as defined in the Prospectus Directive), as
permitted under the Prospectus Directive subject to obtaining the prior consent of the Joint
Global Coordinators nominated by the Company for any such offer; or
•
in any other circumstances which do not require the publication of a prospectus pursuant to
Article 3 of the Prospectus Directive by the Company.
For the purposes of this provision, the expression an ‘‘offer to the public’’ in relation to any Offer
Shares in any Relevant Member State means the communication in any form and by any means of
sufficient information on the terms of the offer and the Offer Shares to be offered so as to enable an
investor to decide to purchase or subscribe for the Offer Shares, as such expression may be varied in the
Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member
State. For the purposes of this provision, the expression ‘‘Prospectus Directive’’ means Directive
2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent
implemented in the Relevant Member State), and includes any relevant implementing measure in the
Relevant Member State; and the expression ‘‘2010 PD Amending Directive’’ means Directive
2010/73/EU.
220
5.
United Arab Emirates
This Prospectus is being distributed to a limited number of investors in the United Arab Emirates
(‘‘UAE’’), must not be provided to any person other than the original recipient, and may not be reproduced
or used for any other purpose.
This Prospectus does not constitute a public offer, sale, promotion, advertisement or delivery of
Offer Shares (or any other securities) in the UAE under Federal Law No 8 of 1984, Federal Law No 4 of
2000, or otherwise. Nothing contained in this Prospectus is intended to constitute investment, legal, tax,
accounting or other professional advice in the UAE. No marketing of any securities or other financial
products or services has been or will be made from within the UAE and no subscription to any services,
products or financial services may or will be consummated within the UAE.
By accepting this Prospectus, the recipient understands, acknowledges and agrees that neither
this Prospectus, the Offer Shares nor any interests in any of them have been approved, registered or
licensed by the UAE Central Bank, Emirates Securities and Commodities Authority (‘‘ESCA’’) or any
other relevant department, ministry or authority in the UAE.
For the purposes of the Offering, neither of the Company, the Underwriters, nor any existing
shareholder has received any authorisation, approval or licence from the UAE Central Bank, ESCA or any
other relevant department, ministry or authority in the UAE. Without limiting the above, neither the
Company nor the Underwriters are licensed as a broker, dealer or investment adviser under the laws of
the UAE and as such provide no advice as to the appropriateness of investing in, purchasing, selling or
otherwise transacting in, securities or other financial products in the UAE.
Neither the Offer Shares nor any other security issued under or in relation to the Prospectus will
be listed, quoted or made available for trading on the Dubai Financial Market, the Abu Dhabi Securities
Exchange or any other exchange or securities market in the UAE.
6.
Dubai International Financial Centre (‘‘DIFC’’)
This Prospectus relates to an ‘‘exempt offer’’ in accordance with Rule 2.3 of the Market Rules
module of the DFSA Rulebook published by the Dubai Financial Services Authority (‘‘DFSA’’). Securities
offered pursuant to this Prospectus in the DIFC will only be offered in accordance with an exemption
under that rule. The DFSA has no responsibility for reviewing, verifying or approving documents in
connection with exempt offers, and as such has not approved, reviewed or taken any steps to verify any of
the contents of this Prospectus. The Offer Shares to which this Prospectus relates may be illiquid and/or
subject to restrictions on their resale. Prospective purchasers of the Offer Shares in the DIFC should
conduct their own due diligence on the Offer Shares and inform themselves of all laws, rules and
regulations relating to their purchase and resale within the DIFC. For the avoidance of doubt, the Offer
Shares are not interests in a ‘‘fund’’ or a ‘‘collective investment scheme’’ within the meaning of either the
Collective Investment Law (DIFC Law No 2 of 2010) or the Collective Investment Rules module of the
DFSA Rulebook.
7.
Switzerland
The Offer Shares may not be publicly offered, sold or advertised, directly or indirectly, in or from
Switzerland. Neither this Prospectus nor any other offering or marketing material relating to Offer Shares
constitute a prospectus pursuant to Article 652a or Article 1156 of the Swiss Code of Obligations or a
listing prospectus within the meaning of the listing rules of the SIX Swiss Exchange. The Offer Shares will
not be listed on the SIX Swiss Exchange and, therefore, the Prospectus may not comply with the
disclosure standards of the listing rules of the SIX Swiss Exchange. Neither this Prospectus nor any other
offering or marketing material relating to the Offer Shares may be publicly distributed or otherwise made
publicly available in Switzerland.
221
(This page has been left blank intentionally.)
V. RECENT DEVELOPMENTS AND OUTLOOK
I.
RECENT DEVELOPMENTS
In the period since March 31, 2015 until the date of this Prospectus, CHORUS has continued with
its ongoing assessment and evaluation of promising investment opportunities in renewable energy
targets across the energy forms solar, wind and hydro from its extensive pipeline, with several project
changing their status either from ‘‘negotiations’’ to the next stages of the evaluation process or being
abandoned. CHORUS has not yet decided upon the execution of an investment for its ‘‘energy
generation’’ business line or come to an agreement with a seller.
End of April 2014, the Federal Network Agency (Bundesnetzagentur) published the results of the
first completed tendering process under the EEG 2014 regarding a solar park to determine the price for
renewable energy generated by such park based on the FFAV. Also see L.II.6. ‘‘Regulation—Regulatory
Environment and Legal Framework in Germany—Tender Process to Determine Price of Renewable
Energy’’.
The first five months of 2015 have developed in line with management’s expectations. The
‘‘energy generation’’ business line did not execute any new investments, but its cash flow generation was
stable. The ‘‘asset management’’ business line continued its moderate revenue growth and further
increased its earnings.
No significant change in our financial or trading position has occurred since March 31, 2015.
II.
OUTLOOK
We expect the positive developments to continue throughout the full financial year 2015. In
particular we believe to be able to complete several acquisitions of renewable energy parks in Europe
from our attractive pipeline of target investment opportunities until the end of the year and to further grow
our asset base in the business line ‘‘energy generation’’ using the proceeds resulting from the Offering of
the New Shares.
Furthermore, CHORUS is optimistic to be able to successfully complete the ongoing fund raising
for its three sub-funds under its existing institutional fund CHORUS SICAV-SIF and to invest these new
funds to acquire additional renewable energy assets for such funds from CHORUS’ investment
opportunity pipeline. CHORUS also is in advanced negotiations with an institutional investor regarding a
tailored investment solution and is actively trying to extend its sales activities. In May 2015, CHORUS
entered into a cooperation with a placement agent in the UK market, with further geographic extensions
currently being under consideration. In addition, CHORUS intends to increase the efficiency of its
administration of project SPVs and also wants to improve its results of operations through agreeing with
its financing banks new, improved financing conditions for its SPVs.
R-1
(This page has been left blank intentionally.)
W. GLOSSARY
AGEB...................................
Arbeitsgemeinschaft Energiebilanzen e.V.
Austria .................................
refers to the Republic of Austria (Republik Österreich).
AIFM ....................................
Alternative Investment Fund Manager.
BaFin ...................................
refers to the German Federal Financial Supervisory Authority
(Bundesanstalt für Finanzdienstleistungsaufsicht).
BauGB .................................
refers to the German Building Code (Baugesetzbuch).
BImSchG ..............................
refers
to
the
German
(Bundesimmissionsschutzgesetz).
BMWi ...................................
Bundesministerium für Wirtschaft und Energie.
BWE ....................................
Bundesverband WindEnergie.
Cent.....................................
Euro Cent. The money unit that equals 1/100 of one Euro.
CEO .....................................
Chief Executive Officer.
CEST ...................................
Central European Summer Time.
CfD ......................................
Contracts for Difference.
CFO .....................................
Chief Financial Officer.
Code ....................................
refers to the German Corporate Governance Code in its current
version.
COO.....................................
Chief Operating Officer.
CSSF ...................................
refers to the Luxembourg Commission for the Supervision of the
Financial Sector (Commission de surveillance du secteur financier).
DFSA ...................................
Dubai Financial Services Authority.
DIFC ....................................
Dubai International Financial Centre.
Direct Marketing System .......
refers to the system of compulsory direct marketing of renewable
energy combined with the payment of a market premium generated
under the EEG 2014.
EBIT.....................................
refers to earnings before interest and taxes.
EBITDA ................................
refers to earnings before interest, taxes, depreciation and
amortization.
EBT .....................................
refers to earnings before taxes.
ECJ......................................
European Court of Justice.
EEA .....................................
refers to the economic area encompassing all of the members of the
European Union and the European Free Trade Association.
EEG .....................................
Renewable Energy Sources Acts (Erneuerbare Energien Gesetz).
EEG 2012 .............................
refers to the German Renewable Energy Sources Act (Erneuerbare
Energien Gesetz) in the version of 2012.
EEG 2014 .............................
refers to the German Renewable Energy Sources Act (Erneuerbare
Energien Gesetz), as last amended on August 1, 2014.
EFTA....................................
European Free Trade Association.
EIA ......................................
refers to the environmental impact assessment.
EPIA ....................................
refers to the European Photovoltaic Industry Association – ‘‘EPIA’’
Global Market Outlook For Photovoltaics 2014-2018).
ESCA ...................................
Emirates Securities and Commodities Authority.
G-1
Immissions
Control
Act
EU .......................................
refers to the European Union.
Euro, Euros or g ...................
refers to the single currency of the participating member states in the
third stage of the European Economic Union pursuant to the Treaty
Establishing the European Community.
Feed-in Tariff ........................
refers to a policy mechanism designed to accelerate investment in
renewable energy technologies by providing them a fee (a ‘‘tariff’’)
above the retail rate of electricity.
FFAV....................................
refers to the regulation on the tendering of financial support for
non-integrated solar facilities (Verordnung zur Ausschreibung der
finanziellen Förderung für Freiflächenanlagen – ‘‘FFAV’’).
FMA .....................................
refers
to
the
Austrian
(Finanzmarktaufsichtsbehörde).
Germany ..............................
refers to the Federal Republic of Germany.
GEA .....................................
refers to the Austrian Green Electricity Act (Ökostromgesetz).
GSE .....................................
Gestore dei Servizi Elettrici.
GW ......................................
Gigawatt, a unit of power. 1 GW is equivalent to 1,000 MW or
1,000,000,000 W.
GWEC ..................................
Global Wind Energy Council.
GWh ....................................
Gigawatt hour. The amount of energy generated in 1 hour with the
effect of 1 GW.
HGB.....................................
German Commercial Code (Handelsgesetzbuch).
IFRS.....................................
refers to the International Financial Reporting Standards, including
International Accounting Standards and Interpretations issued by the
International Accounting Standards Board.
IDW......................................
Institute of Public Auditors in Germany.
IEA ......................................
International Energy Agency.
IORP ....................................
Institutions for occupational retirement provision.
KAGB...................................
German Capital Investment Act (Kapitalanlagegesetzbuch).
KfW .....................................
Kreditanstalt für Wiederaufbau.
KStG ....................................
refers
to
the
German
(Köperschaftsteuergesetz).
kW .......................................
Kilowatt.
kWh .....................................
Kilowatt hour. The amount of energy generated in one hour with the
effect of 1 kW.
LCCC ...................................
refers to a low carbon contracts company.
Luxembourg .........................
refers to the Grand Duchy of Luxembourg.
Member States......................
refers to the member states of the ‘‘European Economic Area’’.
MW ......................................
Megawatt, a unit of power. 1 MW is equivalent to 1,000 kW or
1,000,000 W.
MWh ....................................
Megawatt hour. The amount of energy generated in one hour with the
effect of 1 MW.
NAV .....................................
Net Asset Value.
Regulation S.........................
Regulation S under the United States Securities Act of 1933, as
amended.
Renewable Energies Directive
2001.....................................
Financial
Corporate
refers to the Directive 2001/77 EC.
G-2
Markets
Income
Authority
Tax
Act
Renewable Energies Directive
2009.....................................
refers to the Directive 2009/28/EC.
RES .....................................
refers to renewable energy sources.
ROCs ...................................
Renewable Obligations Certificates.
Securities Act .......................
refers to the United States Securities Act of 1933, as amended.
Solar Park ............................
Area on which (typically) one or several solar energy facilities have
been erected (also known as photovoltaic power station).
Solar or Solar Power .............
The conversion of sunlight into electricity using photovoltaics (PV)
but not concentrated solar power (CSP).
SPV .....................................
refers to a special purpose vehicle (owning a Solar Park of Wind
Park).
Tariff System ........................
refers to the system implemented by the German Renewable Energy
Resources Act, under which certain fixed feed-in tariffs are granted
as an above-market payment by the grid operator to the producer of
such energy.
UAE .....................................
United Arab Emirates.
UK .......................................
United Kingdom.
United States ........................
refers to the United States of America.
W.........................................
Watt, a unit of power. Amount of joules per second.
Wind Park ............................
A wind park (also known as wind farm) consists of a group of one or
more wind energy facilities (wind turbines/mills) erected in the same
area.
G-3
(This page has been left blank intentionally.)
X. FINANCIAL INFORMATION
Unaudited condensed consolidated interim financial statements of CHORUS Clean
Energy AG for the three months ended March 31, 2015 (IFRS) . . . . . . . . . . . . . . . . . . .
F-2
Consolidated Interim Statement of Profit or Loss and other Comprehensive Income . . . . . . .
F-3
Consolidated Interim Statements of Financial Position . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-4
Consolidated Interim Statements of Changes in Equity . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-6
Consolidated Interim Statements of Cashflow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-7
Selected explanatory notes to the Condensed Consolidated Interim Financial Statements . . .
F-8
Audited combined financial statements of CHORUS Clean Energy AG for the short
financial year 2014 and the financial years 2013 and 2012 in accordance with IFRS,
taking into account the basis of preparation as set out in Note 1 thereof . . . . . . . . . . .
F-18
Combined Statements of Financial Position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-19
Combined Statements of Profit or Loss and other Comprehensive Income . . . . . . . . . . . . . .
F-21
Combined Statements of Changes in Net Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-22
Combined Statements of Cashflows . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-24
Notes to the Combined Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-25
Auditor’s Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-85
Audited consolidated financial statements of CHORUS Clean Energy AG for the year
ended December 31, 2014 (IFRS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-87
Consolidated Statements of Financial Position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-88
Consolidated Statement of Profit or Loss and other Comprehensive Income . . . . . . . . . . . .
F-90
Consolidated Statements of Changes in Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-91
Consolidated Statements of Cashflows . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-93
Notes to the Consolidated Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-94
Auditor’s Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-142
Audited unconsolidated annual financial statements of CHORUS Clean Energy AG as
of and for the short financial year ended December 31, 2014 (HGB) . . . . . . . . . . . . . . .
F-143
Balance Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-144
Profit and Loss Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-145
List of Equity Share Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-146
Notes to the Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-149
Auditor’s Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-154
Unaudited pro forma consolidated financial information of CHORUS Clean Energy AG
for the year ended December 31, 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-155
Pro Forma Consolidated Income Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-156
Notes to the Pro Forma Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-157
Auditor’s Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F-160
F-1
Unaudited Condensed
Consolidated Interim Financial
Statements of CHORUS Clean
Energy AG for the Three Months
Ended March 31, 2015 (IFRS)
F-2
CHORUS Clean Energy AG
Consolidated interim statement of profit or loss and other comprehensive income
for the three months ended 31 March
(in g (000))
Revenues
Other income
Personnel expenses
Other expenses
Profit (Loss) before interest, tax, depreciation and amortization
(EBITDA)
Depreciation and amortization
Profit (Loss) before interest and tax (EBIT)
Finance income
Note
Q1 2015
Q1 2014
2.2
12,365
267
505
83
(559)
(504)
(4,467)
(178)
7,844
(332)
(5,479)
(15)
2,365
(347)
152
Finance expenses
(2,255)
Valuation of interest-rate swaps
0
(65)
(192)
Net financial result
(2,295)
Profit (Loss) before tax
(65)
70
(412)
Income tax
(498)
106
Loss for the period
(428)
(306)
Other comprehensive income
Items that are or may be reclassified subsequently to profit
or loss
Available-for-Sale assets—net change in fair value
194
-
related tax
(50)
-
Other comprehensive income, net of tax
144
-
Total comprehensive loss
(284)
(306)
Loss attributable to
(428)
(306)
owners of CHORUS Clean Energy AG
(428)
(306)
Non-controlling interests
-
0
Total comprehensive loss attributable to
(284)
(306)
owners of CHORUS Clean Energy AG
(284)
(306)
Non-controlling interests
-
The accompanying notes are an integral part of these Consolidated Interim Financial Statements.
F-3
-
CHORUS Clean Energy AG
Consolidated interim statement of financial position
ASSETS
(in g (000))
Note
March 31, December 31,
2015
2014
A) NON-CURRENT ASSETS
452,450
457,343
Intangible assets and goodwill
178,483
181,149
Property, plant and equipment
250,204
252,521
Financial investments at equity
541
480
4,712
4,374
Deferred tax assets
18,510
18,819
B) CURRENT ASSETS
50,410
51,961
9,014
6,420
402
826
Current financial assets
4,792
1,327
Current non-financial assets
7,697
6,098
28,505
37,290
Cash and cash equivalents
13,935
21,199
Restricted cash and cash equivalents
14,570
16,091
502,860
509,304
Non-current financial assets
Trade and other receivables
Income taxes receivable
Liquid funds:
TOTAL ASSETS
F-4
EQUITY AND LIABILITIES
(in g (000))
Note
A) TOTAL EQUITY
March 31, December 31,
2015
2014
123,121
123,844
Share Capital
4.2
17,449
50
Capital Reserve
4.2
103,663
-
144
-
Fair Value Reserve
Retained Earnings
4.2
1,840
2,269
Contributions in-cash not yet registered
4.2
-
5,855
Contributions in-kind not yet registered
4.2
-
115,645
123,096
123,819
25
25
343,002
350,108
Liabilities to limited partners
3,959
4,034
Non-current provisions
3,861
3,358
333,754
341,057
1,428
1,659
36,737
35,352
Current provisions
1,748
1,382
Trade payables
4,043
4,716
Income taxes payable
3,878
3,537
22,036
21,446
4,733
3,431
299
840
502,860
509,304
Equity attributable to the owners of CHORUS Clean Energy AG
Non-controlling interests
B) NON-CURRENT LIABILITIES
Non-current financial liabilities
Deferred tax liabilities
C) CURRENT LIABILITIES
Current financial liabilities
Other current liabilities
Deferred income
TOTAL EQUITY AND LIABILITIES
The accompanying notes are an integral part of these Consolidated Interim Financial Statements.
F-5
CHORUS Clean Energy AG
Consolidated interim statement of changes in equity
for the three months ended 31 March 2014
attributable to the owners of CHORUS Clean Energy AG
Share
capital
(in g (000))
Balance as of January 1, 2014
Equity
attributable to
the owners of
NonCapital Retained CHORUS Clean controlling
reserve earnings
Energy AG
interests
250
25
3,873
4,148
11
Total
equity
4,159
Loss for the period / Total comprehensive Loss
-
-
(306)
(306)
0
(306)
Total comprehensive Loss
-
-
(306)
(306)
0
(306)
250
25
Balance as of March 31, 2014
3,567
3,842
11
3,853
Equity
Contribution Contribution
attributable to
Fair
in cash
in-kind
the owners of
NonCapital
value Retained
not yet
not yet CHORUS Clean controlling
reserve reserve earnings
registered
registered
Energy AG
interests
Total
equity
attributable to the owners of CHORUS Clean Energy AG
Share
capital
Balance as of January 1,
2015
50
-
-
-
2,269
5,855
115,645
-
-
123,819
25 123,844
Total comprehensive
income / loss for the
period
Loss for the period
Other comprehensive income
Total comprehensive Loss
(428)
144
-
-
144
(428)
-
144
(428)
-
-
(428)
144
(284)
-
(284)
Transactions with owners of
the company
Contributions and
distributions
Issue of shares
Costs incurred to issue equity,
net of tax
17,399 104,103
-
(440)
Total contributions and
distributions
17,399 103,663
Total transactions with
owners of the company
17,399 103,663
Balance as of March 31,
2015
17,449 103,663
(5,855)
-
(115,645)
-
-
-
-
(440)
-
(440)
-
(5,855)
(115,645)
(440)
-
(440)
-
-
(5,855)
(115,645)
(440)
-
(440)
144
1,840
-
-
123,096
25 123,121
The accompanying notes are an integral part of these Consolidated Interim Financial Statements.
F-6
CHORUS Clean Energy AG
Consolidated interim statement of cashflow
for the three months ended 31 March
(in g (000))
2015
2014
Results for the year
(428)
(306)
Net finance result
2,295
Net income tax result
Earnings before Interest and Tax (EBIT)
65
498
(106)
2,365
(346)
Tax paid (-) / Tax received (+)
343
11
Depreciation and amortization
5,479
15
Other non-cash income/expenses
(1,027)
0
Increase/decrease in other assets not attributable to investment and
financing activities
(4,449)
(796)
Increase/decrease in other liabilities not attributable to investment and
financing activities
1,643
1,336
Cash Flow from Operating Activities
4,354
219
Payments on investments in equity and debt instruments
Payments on investments in property, plant and equipment and intangible
assets
Cash Flow from Investing Activities
Proceeds from borrowing/debt
(3,843)
(5)
(1)
(3,847)
(1)
0
Repayment of borrowing/debt
Payments in connection with raising equity
Change in restricted cash
0
228
(5,257)
0
(359)
0
1,521
Repayments of lease commitments
0
(306)
0
Interest paid
(3,369)
0
Cash Flow from Financing Activities
(7,770)
228
Net decrease/increase in cash and cash equivalents
(7,263)
447
Cash and cash equivalents at beginning of period
21,199
866
Cash and cash equivalents at end of period
13,935
1,312
The accompanying notes are an integral part of these Consolidated Interim Financial Statements.
F-7
CHORUS Clean Energy AG, Neubiberg
Selected explanatory notes to the condensed consolidated interim financial statements
(IFRS)
as at March 31, 2015
1
General informaton
1.1 The reporting entity
CHORUS Clean Energy AG (‘‘CHORUS AG’’ or ‘‘the reporting entity’’) was founded in July 2014 and was
entered in the commercial register of the Munich Local Court (Amtsgericht München) under number HRB
213342 in August 2014. The registered office is located at 85579 Neubiberg near Munich, Prof.Messerschmitt-Str. 3, Germany.
The reporting entity is engaged in the acquisition and management of investments in other entities which
operate wind or solar parks in Europe and whose activities include the generation, storage, or distribution
of renewable energy along with all associated activities for the generation of renewable energy, including
design, conceptual support, and long-term consultation and coordination of investment products in the
renewable energy sector.
The condensed consolidated interim financial statements of the CHORUS AG as at March 31, 2015
comprise the Company and its subsidiaries (together referred to as ‘‘CHORUS Group’’ or the ‘‘Group’’
and individually as ‘‘Group entities’’).
The Corporate of Management of CHORUS AG authorized the consolidated interim statements for
presentation to the Supervisory Board on May 20, 2015.
1.2 Description of operations
CHORUS is an independent power producer and a full-service asset manager with a long-standing focus
on investments in renewable energy power facilities. In addition, CHORUS provides advisory and asset
management services to professional investors in the renewable energy sector. Since its specialization in
the renewable energy field in 2006, CHORUS has initiated 21 German limited partnerships
(Kommanditgesellschaften) and three Luxembourg special investment funds focused on the renewable
energy sector, which, advised by CHORUS, executed total investments in 67 solar and wind parks
located in Germany and other European countries with a total capacity of 254 MW (solar parks: 151 MW;
wind parks: 103 MW), representing a total investment volume of approximately EUR 673 million. Between
2009 and 2014, the total electricity generated per year by the solar and wind parks managed and
operated by CHORUS grew from 1.3 MWh in 2009 to 252,843 MWh in 2014. CHORUS owns and
operates 62 of these parks and manages and operates five wind parks for the Luxembourg special
investment funds initiated by it. Following the acquisition of a solar or wind park for its own portfolio or for
professional funds and investors, CHORUS provides asset management services to the legal entities
owning the solar and wind parks.
From January 1st until March 31st, 2015 renewable energy plants produced a total of 48,780 MWh.
1.3 Basis of preparation
These condensed consolidated interim financial statements were prepared in accordance with the
International Standard IAS 34 ‘Interim Financial Reporting’. It does not include all the information required
by IFRS for year-end consolidated financial statements and should therefore be read in conjunction with
the consolidated financial statements as of 31 December 2014.
The comparability of the consolidated interim statement of profit or loss and other comprehensive income,
the consolidated interim statement of cash flows and the consolidated interim statement of changes in
equity is limited since the 74 holding and operating companies including the solar parks and wind parks
were contributed in December 2014. Therefore, they are not reflected in the group’s results of operation
and cash flows for the three-month period ended March 31, 2014. For this period in 2014, the financial
information only includes the financial information of CHORUS GmbH and its subsidiaries. We refer to the
consolidated financial statements as of December 31, 2014, note 7.10 Equity.
F-8
The consolidated financial statements have been prepared in Euro (EUR). Unless stipulated otherwise,
all values are rounded up or down to nearest thousand Euro (EUR thousand) in accordance with the
commercial rounding practices. Differences can result from the use of rounded amounts and
percentages.
1.4 Application of new and revised International Financial Reporting Standards
In addition to the standards and interpretations applied as at December 31, 2014, the following standards
were applicable for the first time, but had no impact on the consolidated financial statements:
• IFRIC 21 „Levies’’ (2013)
• Annual Improvements to IFRSs 2011-2013 Cycle
CHORUS AG is in process of analyzing the effects of the IFRS standards not yet effective on CHORUS
Groups results of operations, financial position and cash flows.
1.5 Critical accounting judgements and key sources of estimation uncertainties
The preparation of financial statements in conformity with IFRS requires management to make
judgements, estimates and assumptions that affect the application of accounting policies and the
reported amounts of assets, liabilities, income and expenses. Actual results may differ from these
estimates. Estimates and underlying assumptions are reviewed on an ongoing basis. Revisions to
accounting estimates are recognized in the period in which the estimates are revised and in any future
periods affected.
The key assumptions concerning the future economic situation and other key sources of estimation
uncertainty at the balance sheet date that have a significant risk of causing a material adjustment to the
carrying amounts of assets and liabilities within the next financial year are discussed in the notes to the
consolidated financial statements as of 31 December 2014.
There have been no significant changes in the amount of changes in estimates since preparation of the
consolidated financial statements for the year ended December 31, 2014.
1.6 Significant accounting policies
The accounting policies applied in these condensed consolidated interim financial statements are the
same as those applied in the Group’s consolidated financial statements as at and for the year ended
December 31, 2014. A detailed description of the policies is included in the notes to the consolidated
financial statements for 2014.
2
Disclosures regarding the consolidated interim statements of comprehensive income/loss
2.1 Extraordinary Effects
Extraordinary effects relate to IPO expenses which did not qualify for direct deduction from capital reserve
in preparation for the planned IPO.
F-9
The extraordinary effects had the following impact on the consolidated interim statement of
comprehensive loss:
EBITDA
EBIT
Income/
Loss for
the period
Earnings Q1 2015 adjusted
8,899
3,420
356
IPO expenses
1,055
1,055
784
Earnings Q1 2015 according to IFRS
7,844
2,365
(428)
(in g(000))
2.2 Revenues
Revenues can be broken down as follows:
in g(000)
Q1 2015
Q1 2014
Electricity generation
10,210
-
2,155
267
12,365
267
Asset management & advisory services
Revenues
The analysis of revenues by country is as follows:
in g(000)
Germany
Italy
France
Austria
Q1 2015
Electricity generation
5,564
3,985
213
447
10,210
Asset management & advisory services
2,155
-
-
-
2,155
Total
7,719
3,985
213
447
12,365
Germany
Italy
France
Austria
Q1 2014
-
-
-
-
-
Asset management & advisory services
267
-
-
-
267
Total
267
-
-
-
267
in g(000)
Electricity generation
F-10
3
Disclosures regarding financial instruments
The table below shows the carrying amounts, stated values, and fair values based on the measurement categories of financial instruments as of December 31, 2014
and as of March 31, 2015.
December 31, 2014
Statement of financial position value in accordance with IAS 39
(All amounts stated in g(000))
Measurement
category in
accordance
with IAS 39
Carrying
amount
Amortized
cost
At cost
Fair value
recognized
directly in
equity
Fair Value
Fair value Measurement
recognized
in
through
accordance
profit or loss
with IAS 17
Level 1
Level 2
Level 3
Total
Assets
Non-current financial assets
AfS
4,374
-
75
4,299
-
-
-
-
4,299
4,374
Trade and other receivables
LaR
6,420
6,420
-
-
-
-
-
-
-
6,420
Current financial assets
LaR
1,327
1,327
-
-
-
-
-
-
-
1,327
Liquid funds:
F-11
Cash and cash equivalents
LaR
21,199
21,199
-
-
-
-
-
-
-
21,199
Restricted cash and cash equivalents
LaR
16,091
16,091
-
-
-
-
-
-
-
16,091
-
-
4,034
4,034
-
-
-
-
-
-
-
4,034
362,503
321,109
-
-
9,608
31,786
-
9,608
-
362,503
321,109
321,109
-
-
-
-
-
-
321,109
321,109
31,786
-
-
-
-
31,786
-
-
31,786
31,786
Liabilities
Liabilities to limited partners
FLAC
Financial liabilities
of which Bank loans
FLAC
of which leasing liabilities
n/a
of which interest rate swaps with
neg.FV
Trade payables
HfT
9,608
-
-
-
9,608
-
-
9,608
-
9,608
FLAC
4,716
4,716
-
-
-
-
-
-
-
4,716
Fair value
recognized
directly in
equity
Fair value
recognized
through
profit or loss
Fair Value
45,037
December 31, 2014
Statement of financial position value in accordance with IAS 39
(All amounts stated in g(000))
Measurement
category in
accordance
with IAS 39
Carrying
amount
Amortized
cost
At cost
Loans and receivables (LAR)
LaR
45,037
45,037
-
-
-
Available-for-sale financial assets
AfS
4,374
-
75
4,299
-
4,374
Financial liabilities at amortised cost
FLAC
329,859
329,859
-
-
-
329,859
Financial Liability at Fair Value through
P&L
FLVP&L
9,608
-
-
-
9,608
9,608
March 31, 2015
Statement of financial position value in accordance with IAS 39
(All amounts stated in g(000))
Measurement
category in
accordance
with IAS 39
Carrying
amount
Amortized
cost
At cost
Fair value
recognized
directly in
equity
Fair Value
Fair value Measurement
recognized
in
through
accordance
profit or loss
with IAS 17
Level 1
Level 2
Level 3
Total
Assets
Non-current financial assets
AfS
4,712
-
75
4,637
-
-
-
-
4,637
4,637
Trade and other receivables
LaR
9,014
9,014
-
-
-
-
-
-
-
-
Current financial assets
LaR
3,973
3,973
-
-
-
-
-
-
-
-
Current financial assets
AfS
818
-
-
818
-
-
-
-
818
818
Liquid funds:
Cash and cash equivalents
LaR
13,935
13,935
-
-
-
-
-
-
-
-
Restricted cash and cash equivalents
LaR
14,570
14,570
-
-
-
-
-
-
-
-
-
-
3,959
3,959
-
-
-
-
-
-
-
-
355,790
314,513
-
-
9,800
31,477
-
9,800
314,513
355,790
314,513
314,513
-
-
-
-
-
-
314,513
314,513
31,477
-
-
-
-
31,477
-
-
-
31,477
Liabilities
Liabilities to limited partners
FLAC
F-12
Financial liabilities
of which Bank loans
FLAC
of which leasing liabilities
n/a
of which interest rate swaps with
neg.FV
Trade payables
HfT
9,800
-
-
-
9,800
-
-
9,800
-
9,800
FLAC
4,043
4,043
-
-
-
-
-
-
-
-
Fair value
recognized
directly in
equity
Fair value
recognized
through
profit or loss
Fair Value
March 31, 2015
Statement of financial position value in accordance with IAS 39
(All amounts stated in g(000))
Measurement
category in
accordance
with IAS 39
Carrying
amount
Amortized
cost
At cost
Loans and receivables (LAR)
LaR
41,492
41,492
-
-
-
-
Available-for-sale financial assets
AfS
5,530
-
75
5,455
-
5,455
Financial liabilities at amortised cost
FLAC
322,515
322,515
-
-
-
314,513
Financial Liability at Fair Value through
P&L
FLVP&L
9,800
-
-
-
9,800
9,800
The group does not disclose separately the fair values for financial instruments such as short-term trade receivables and payables, because their carrying amounts
are a reasonable approximation of fair values.
Fair value hierarchy
The following tables show the valuation techniques used in measuring Level 2 and Level 3 fair values, as
well as the significant unobservable inputs used.
Financial instruments measured at fair value:
Significant
unobservable
inputs
Inter-relationship between
significant unobservable inputs
and fair value measurement
Type
Valuation technique
Available-for-sale
investments
The investments are valued
using one or a combination
of the following methods:
• The price or cost of recent
investments;
• Industry valuation
benchmarks;
• Recent offers received;
and
• Contractual commitments.
The relative weightings
applied to each valuation
method reflect judgement as
to the suitability of each
valuation approach to the
specific unrealized
investment.
• Risk premium
The estimated fair value
would increase (decrease) if:
• The risk premium was
lower (higher)
Discounted cash flows:
The fair values are
determined using the
expected future cash flows
and discounted using
generally observable market
data of the respective
reference rate curve.
• Not applicable
• Not applicable
(Level 3)
Interest rate
swaps
(Level 2)
No reclassifications of financial instruments were made in comparison to December 31, 2014.
Non-current financial assets
Available-for-sale investments
Non-current financial assets comprise available-for-sale investments in four investment funds for the
renewable energy sector, in the form of limited partnerships registered in the United Kingdom and in
Cayman Islands: CleanTech Europe I L.P. (‘‘Zouk I’’), London/U.K.; CleanTech Europe II L.P., London/
U.K. (‘‘Zouk II’’); Hudson Clean Energy Partners (Cayman) L.P., Teaneck (‘‘Hudson’’); and European
Renewable Energy Fund I L.P. (‘‘Platina’’) totaling EUR 4,637 thousand as of March 31, 2015
(EUR 4,299 thousand as of December 31, 2014) all of which were acquired in the business combination in
December 2014, and sundry other available-for-sale equity investments totaling EUR 75 as of March 31,
2015 (EUR 75 thousand as of December 31, 2014).
Sundry other available-for-sale equity investments totaling EUR 75 thousand as of March 31, 2015
(EUR 75 thousand as of December 31, 2014) are measured at cost because a fair value could not be
determined reliably. Sundry other available-for-sale equity investments comprise investments in unlisted
shares that are not traded in an active market. The Group has no intention to sell these investments as of
the respective balance sheet date.
F-13
Reconciliation of level 3 fair values
The following table shows a reconciliation from the opening balances to the closing balances for
available-for-sale values:
in g(000)
Available-for-sale
Balance at 1 January 2015
4,299
Gain/Loss included in Finance Income
-
Net change in fair value (unrealized)
-
Net change in fair value (realized)
-
Gain included in OCI
194
Net change in fair value (unrealized)
194
Purchases
962
Transfer out of level 3
-
Balance at 31 March 2015
5,455
Interest rate risk (SWAP)
The fair value of interest rate swaps on the reporting date is determined by discounting future cash flows
based on the yield curves as of the reporting date and the credit risk associated with the contracts. This
present value is presented in the table below.
The following tables show the notional amounts and maturities of outstanding interest rate swaps at the
end of each of the reporting periods.
March 31, 2015:
contractually
agreed fixed
interest rates
Notional
amount
Fair value
less than 1 year
0
0
0
1 to 2 years
0
0
0
2 to 5 years
0
0
0
1.65% to
3.45%
81,475
(9,800)
81,475
(9,800)
Outstanding ‘‘Receive-Floating Pay-Fixed’’ swaps
(in g(000))
more than 5 years
Total
December 31, 2014:
contractually
agreed fixed
interest rates
Notional
amount
Fair value
less than 1 year
0
0
0
1 to 2 years
0
0
0
2 to 5 years
0
0
0
1.65% to
3.45%
81,475
(9,608)
81,475
(9,608)
Outstanding ‘‘Receive-Floating Pay-Fixed’’ swaps
(in g(000))
more than 5 years
Total
F-14
4
Other disclosures
4.1 Acquisition of interests in other companies
In March 2015, CHORUS Group acquired 35% of the shares in a limited partnership for a consideration of
EUR 818 thousand and 35% of the shareholder loan for a consideration of EUR 2,830 thousand. The
consideration maybe subject to future adjustments depending on the achievements of contractual agreed
requirements. The acquisition of the shares and shareholder loan is shown within current financial assets.
The 35% of the shares are accounted for as available-for-sale investments. The 35% of the shareholder
loan are accounted for at amortized costs.
4.2 Equity
On December 4, 2014 and January 7, 2015, respectively, the general shareholders’ meetings
(Hauptversammlungen) of the Issuer resolved to increase the share capital of the Issuer from
EUR 50 thousand by EUR 586 thousand to EUR 636 thousand against cash contribution by the Fund KGs
and from EUR 636 thousand by EUR 16,422 thousand to EUR 17,058 thousand and then from
EUR 17,058 thousand by EUR 391 thousand to EUR 17,449 thousand against contributions in-kind (i) by
the Fund KGs contributing their interests in the holding and operating companies and assigning the
contributed loans between the Fund KGs and the holding and operating companies (Übertragung des
Vertragsverhältnisses im Ganzen), including the claims for repayment of these loans against the holding
and operating companies, (ii) by the shareholders of CHORUS GmbH contributing the shares in
CHORUS GmbH (and thereby indirectly also of CHORUS GmbH’s subsidiaries) and (iii) by REGIS (as
trustee for one investor not affiliated with the CHORUS Group) and the members of the Management
Board, i.e., by Heinz Jarothe, Holger Götze and Helmut Horst, contributing their interests held in
Warrenzin KG, one of the holding and operating companies. The existing shareholders of the Issuer
waived their subscription rights. The Fund KGs, the shareholders of CHORUS GmbH, REGIS, Holger
Götze and Helmut Horst were admitted to subscribe for the new shares. In addition, on December 4,
2014, the general shareholders’ meeting (Hauptversammlung) of the Issuer also formally approved the
agreements pursuant to which PELABA Anlagenverwaltungs GmbH & Co. KG and Heinz Jarothe
contributed their shares in CHORUS GmbH and Warrenzin KG to the Issuer pursuant to Section 52 of the
German Stock Corporation Act (Aktiengesetz) (so-called ‘‘post formation acquisition’’—Nachgründung).
The capital increase by cash contribution and by contribution in-kind amounts to EUR 121,500 thousand.
The share capital increase by EUR 17,399 thousand was entered in the commercial register as of
February 23, 2015. The residual amount of the contribution was recorded as capital reserve accordingly
with an amount of EUR 104,103 thousand. At February 23, 2015, the amounts previously recognized
under the items ‘‘Contribution in cash not yet registered’’ and ‘‘Contribution in-kind not yet registered’’
were reclassified into share capital and capital reserve. Costs incurred to issue equity amount to
EUR 440 thousand are deducted directly from capital reserve.
4.3 Contingent liabilities
There have been no significant changes in the contingent liabilities since preparation of the consolidated
financial statements for the year ended December 31, 2014.
4.4 Transactions with related parties
In the course of its ordinary business activities, the parent company CHORUS AG maintains relationships
both with the subsidiaries, associates, related entities and individuals (members of the Supervisory Board
and the Board of Management and relatives to these persons).
F-15
Transactions with key management personnel
The following transactions with members of the board occur:
Remuneration expenses
in g(000)
Short-term employee benefits
thereof supervisory board benefits
Total compensation recognized for key management personnel
Q1 2015
Q1 2014
143
129
21
-
143
129
Q1 2015
Q1 2014
211
129
21
-
211
129
Remuneration payments
in g(000)
Short-term employee benefits
thereof supervisory board benefits
Total compensation paid to key management personnel
No post-employee benefits, long-term benefits and share-based payment transactions with key
management occurred.
Associated entities
The transactions with associated entities are made on terms equivalent to those that prevail in arm’s
length transactions. Outstanding balances at the year-end are unsecured and interest free and
settlement occurs in cash. There have been no guarantees provided or received for any related party
receivables or payables.
(in g(000))
Q1 2015
Q1 2014
-services
2,150
0
Total transactions
2,150
0
31.03.2015
31.12.2014
Balances
1,477
634
Total balances
1,477
634
Transactions
Consulting Agreement with Pelaba Consult GmbH
On March 02, 2015 the Company entered into a consulting agreement based on standard market terms
with Pelaba Consulting GmbH, a company controlled by the chairman of the Supervisory Board, Peter
Heidecker. Pursuant to this agreement, Pelaba Consulting GmbH provides consulting services relating to
the identification of potential targets for future investments as well as—in coordination with the
Management Board—the support of the Company regarding distribution initiatives and measures.
Lease Agreement with PELABA Vermögensverwaltungs GmbH & Co. KG
With effect from January 1, 2015 the Company entered into a lease agreement related to the Company’s
headquarters in Neubiberg with PELABA Vermögensverwaltungs GmbH & Co. KG, a company controlled
by the Issuer’s chairman of the Supervisory Board, Peter Heidecker. The lease agreement has a fixed
term until 2019 and thereafter is automatically extended for subsequent one year periods unless
terminated by either party on six months’ notice. The monthly rent is based on standard market terms.
F-16
Short-Term Loan with PELABA Verwaltungs GmbH
On September 11, 2013 and December 23, 2013, a short-term loan of EUR 4,500 thousand was taken out
on arm’s-length terms from PELABA Verwaltungs GmbH, Neubiberg, as temporary bridge financing for
the subsequent acquisition of CHORUS Wind Kappel GmbH & Co. KG. The loan was repaid in full on
July 17, 2014. The interest payments are based on standard market terms
4.5 Seasonality
Our business comprises the generation of electricity from solar systems and wind turbines. The
profitability of a solar or wind energy project is dependent on solar or wind conditions at the location of the
relevant park, which may vary over time and differ from solar and wind conditions observed during the
project development stage. Based on historical statistical data, CHORUS believes that solar conditions
are considerably more stable than wind conditions over longer periods of time (of 20 years or more).
However, changing weather conditions may still affect our financial performance from one year to the next
and directly affect our revenues and operating results.
The amount of electricity our solar power energy parks produce is dependent on the amount of sunlight,
or irradiation, at the sites where the solar parks are located. Because shorter daylight hours in winter
months result in less irradiation, the electricity generation of our solar parks will vary considerably
depending on the season. Additionally, as all of our solar parks are located in the northern hemisphere,
power generation of our solar park portfolio is impacted by seasonality. Consequently, total power
generation of our solar park portfolio is at its highest during the second and third quarters of each year,
when it is summer in the northern hemisphere and the days are longer. In contrast, energy generation
from our wind parks is typically higher in the first and fourth quarters of each year.
The above mentioned description on seasonality is applicable starting with the contribution of the holding
and operating companies as of December 31, 2014.
4.6 Employees
For the period from January 1 to March 31, 2015 the Group had an average of 29 employees (for the
period from January 1 to March 31, 2014: 27 employees) all of whom worked in management and
administration of CHORUS AG, respectively at CHORUS GmbH.
4.7 Subsequent event
The group is not aware of any events after the balance sheet date affecting the course of business.
F-17
Audited Combined Financial
Statements of
CHORUS Clean Energy AG
for the Short Financial Year 2014
and the Financial Years 2013
and 2012
in Accordance With IFRS
Taking Into Account the Basis
of Preparation
as Set Out in Note 1 Thereof
F-18
CHORUS Clean Energy AG
Combined statements of financial position
as at December 17, 2014, December 31, 2013, December 31, 2012 and January 1, 2012
ASSETS
(in g (000))
Note
A) NON-CURRENT ASSETS
December 31,
2014
December 31,
2013
January 1,
2013
457,343
260
104
Intangible assets and goodwill
7.1
181,149
173
15
Property, plant and equipment
7.2
252,521
23
32
Financial investments at equity
7.3
480
-
-
Non-current financial assets
7.4
4,374
58
34
Deferred tax assets
7.5
18,819
6
23
51,961
9,390
5,862
B) CURRENT ASSETS
Trade and other receivables
7.6
6,420
1,974
1,645
Income taxes receivable
6.7
826
654
324
Current financial assets
7.7
1,327
5,896
702
Current non-financial assets
7.8
6,098
-
-
Liquid funds:
7.8
37,290
866
3,191
21,199
866
3,191
16,091
-
-
509,304
9,650
5,966
Cash and cash equivalents
Restricted cash and cash equivalents
7.9
TOTAL ASSETS
F-19
EQUITY AND LIABILITIES
(in g (000))
Note
A) TOTAL EQUITY
December 31,
2014
December 31,
2013
January 1,
2013
123,844
4,159
3,575
Share Capital
7.10
50
250
250
Capital Reserve
7.10
-
25
25
Retained Earnings
7.10
2,269
3,873
3,300
Contributions in-cash not yet registered
7.10
5,855
-
-
Contributions in-kind not yet registered
7.10
115,645
-
-
123,819
4,148
3,575
25
11
-
350,108
4
4
Equity attributable to the owners of
CHORUS Clean Energy AG
Non-controlling interests
B) NON-CURRENT LIABILITIES
Liabilities to limited partners
7.11
4,034
-
-
Non-current provisions
7.12
3,358
4
4
Non-current financial liabilities
7.13
341,057
-
-
Deferred tax liabilities
7.5
1,659
-
-
35,352
5,487
2,387
C) CURRENT LIABILITIES
Current provisions
7.12
1,382
86
104
Trade payables
7.14
4,716
5,205
1,244
Income taxes payable
6.7
3,537
196
372
Current financial liabilities
7.13
21,446
-
-
Other current liabilities
7.15
3,431
-
658
Deferred income
7.16
840
-
9
509,304
9,650
5,966
TOTAL EQUITY AND LIABILITIES
The accompanying notes are an integral part of these Combined Financial Statements.
F-20
CHORUS Clean Energy AG
Combined statements of profit or loss and other comprehensive income for the short
reporting period from January 1 to December 17, 2014 and the years ended December 31,
2013 and December 31, 2012
(in g (000))
Note
2014
2013
2012
Revenues
6.1
54,983
49,657
43,748
Other income
6.2
1,932
3,417
5,206
Personnel expenses
6.3
(2,149)
(2,117)
(2,382)
Other expenses
6.4
(12,036)
(12,828)
(12,915)
42,730
38,129
33,657
(17,752)
(21,110)
(13,673)
24,978
17,019
19,984
Profit before interest, tax, depreciation and
amortization (EBITDA)
Depreciation and amortization
6.5
Profit before interest and tax (EBIT)
Results of financial investments accounted for at equity
-
(30)
202
318
Finance income
6.6
Finance expenses
6.6
(15,546)
(17,292)
(16,035)
Valuation of interest-rate swaps
6.6
(5,660)
2,443
(3,452)
Net financial result
6.6
(20,636)
(14,677)
(19,199)
4,342
2,342
785
(1,435)
(121)
Profit before tax
Income tax expense
6.7
570
(30)
(612)
Profit for the year/Total comprehensive income
3,730
907
664
Profit attributable to the owners of the Combined
Group
3,722
907
664
8
0
0
Profit attributable to non-controlling interests
The accompanying notes are an integral part of these Combined Financial Statements.
F-21
CHORUS Clean Energy AG
Combined statements of changes in net assets
for the period from January 1 to December 17, 2014 and the years from January 1 to December 31,
2013 and January 1 to December 31, 2012
Net assets
attributable to
shareholders
of the
combined
group
Noncontrolling
interests
Total net
assets
61,589
11
61,600
Profit for the year / Total comprehensive income
3,722
8
3,730
Total comprehensive income
3,722
8
3,730
Contribution of net assets
3,606
-
3,606
Repatriation of net assets
-7,175
-
-7,175
Foundation of CHORUS Clean Energy AG
50
-
50
Disposal of operating companies
-8
-
-8
-3,527
-
-3,527
Changes in ownership without a loss of control
-6
6
-
Total changes in ownership interests
-6
6
-
Total transactions with owners of the company
-3,533
6
-3,527
Balance at December 17, 2014
61,778
25
61,803
Net assets
attributable to
shareholders
of the
combined
group
Noncontrolling
interests
Total net
assets
61,046
-
61,046
Profit for the year / Total comprehensive income
907
-
907
Total comprehensive income
907
-
907
Contribution of net assets
3,586
-
3,586
Repatriation of net assets
-5,511
-
-5,511
1,572
-
1,572
-353
-
-353
Changes in ownership without a loss of control
-11
11
-
Total changes in ownership interests
-11
11
-
-364
-
-364
61,589
11
61,600
(in g (000))
Note
Balance at January 1, 2014
Transactions with owners of the company
Contributions
Total contributions
Changes in ownership interests
(in g (000))
Note
Balance at January 1, 2013
Transactions with owners of the company
Contributions
Additions by operating companies
Total contributions
Changes in ownership interests
Total transactions with owners of the company
Balance at December 31, 2013
F-22
Net assets
attributable to
shareholders
of the
combined
group
Noncontrolling
interests
Total net
assets
40,748
-
40,748
Profit for the year / Total comprehensive income
664
-
664
Total comprehensive income
664
-
664
(in g (000))
Note
Balance at January 1, 2012
Transactions with owners of the company
Contributions
Contribution of net assets
26,321
-
26,321
Repatriation of net assets
-7,865
-
-7,865
40
-
40
1,138
-
1,138
Total contributions
19,634
-
19,634
Total transactions with owners of the company
19,634
-
19,634
Balance at December 31, 2012
61,046
-
61,046
Additions by holding companies
Additions by operating companies
The accompanying notes are an integral part of these Combined Financial Statements
F-23
CHORUS Clean Energy AG
Combined statements of cashflows for the period from
January 1 to December 17, 2014 and the years ended
January 1 to December 31, 2013 and January 1 to December 31, 2012
(in g (000))
Note
Results for the year
2014
2013
2012
3,730
907
664
20,636
14,677
19,199
612
1,435
121
24,977
17,018
19,984
Adjustments for Result
Net finance result
Net income tax result
Earnings before Interest and Tax (EBIT)
Tax paid
(512)
Depreciation and amortization
17,752
Losses on disposal of assets
-
Other non-cash income/expenses
(1,588)
Increase/decrease in other assets not attributable to
investment and financing activities
(1,275)
Increase/decrease in other liabilities not attributable to
investment and financing activities
Cash Flow from Operating Activities
Proceeds on disposal of property, plant and equipment and
intangible assets
Proceeds on disposals of financial assets
Payments on investments of financial assets
Payments on investments in property, plant and equipment
and intangible assets
(1,349)
21,110
13,673
-
207
(655)
(1,083)
6,245
8,949
(5,341)
(8,692)
39,525
37,028
32,271
-
64
58
170
50
112
(915)
(851)
(1,513)
(3,155)
(375)
(7,961)
4,500
Payments on investments in companies, net of cash and
cash equivalents acquired
436
(855)
Interest received
570
536
Cash Flow from Investing Activities
(766)
225
308
(3,014)
(1,370)
(4,382)
Proceeds from borrowing/debt
2,997
1,997
16,474
Repayment of borrowing/debt
(19,870)
(21,664)
(17,847)
Proceeds from shareholders
2,592
1,703
12,770
(7,847)
(3,982)
(5,980)
Payments to shareholders
Proceeds from shareholder loans
1,518
4,546
Repayments of shareholder loans
(7,710)
(3,287)
Proceeds from loans granted
5,700
Payments from loans granted
-
Change in restricted cash
(2,660)
Repayments of lease commitments
(4,710)
-
3,273
(5,700)
-
(4,406)
(3,555)
(1,171)
(1,098)
(3,507)
Interest paid
(14,051)
(14,518)
(12,610)
Cash Flow from Financing Activities
(40,501)
(46,409)
(15,694)
Net increase/decrease in cash and cash equivalents
(3,990)
(10,750)
12,195
Cash and cash equivalents at beginning of period
19,455
30,204
18,010
Cash and cash equivalents at end of period
15,465
19,455
30,204
The accompanying notes are an integral part of these Combined Financial Statements.
F-24
CHORUS Group Neubiberg
Notes to the combined financial statements
for the period 2014 and the financial years 2013 and 2012
(IFRS)
1
General information
1.1 Background information—planned IPO of CHORUS Group
Planned IPO
The following information regarding CHORUS GmbH (‘‘CHORUS GmbH’’) and CHORUS Clean Energy
AG (‘‘CHORUS AG’’) is related to the planned initial public offering (IPO) of the CHORUS Group
(‘‘Combined Group’’). The CHORUS Group’s target structure provides for CHORUS AG as the parent
entity of the individual 74 holding and operating companies as well as of CHORUS GmbH and its
subsidiaries (‘‘CHORUS GmbH Group’’).
For this purpose, CHORUS AG carried out several capital increases in December 2014 in exchange for
contributions in-kind and contribution in-cash in preparation of an initial public offering planned for 2015.
The reporting entity
CHORUS Clean Energy AG (‘‘CHORUS AG’’) was founded in July 2014 and was entered in the
commercial register of the Munich Local Court (Amtsgericht München) under number HRB 213342 in
August 2014. The registered office is located at 85579 Neubiberg near Munich, Prof.-MesserschmittStr. 3, Germany.
CHORUS GmbH was founded in 1998, with registration under number HRB 121720 in the commercial
register in Munich. CHORUS GmbH’s headquarters is also located at 85579 Neubiberg near Munich,
Germany, Prof.-Messerschmitt-Str. 3, Germany. CHORUS GmbH has nine subsidiaries.
More information is provided in appendix 1.
Description of operations
The entities comprising the reporting entity ‘‘CHORUS Group’’ for the purpose of the combined financial
statements are principally engaged in the acquisition and sale as well as the holding and management of
investments in other German and foreign entities whose activities include the generation, storage, or
distribution of renewable energy along with all associated activities for the generation of renewable
energy, including design, conceptual support, and long-term consultation and coordination of investment
products in the renewable energy segment.
Until December 2014, CHORUS GmbH served as a holding and management company for the
CHORUS GmbH Group. The CHORUS GmbH Group has focused on renewable energy since 2006 and
operates as the leading asset manager in the area of clean energy funds, whereby the CHORUS GmbH
Group previously evaluated investment opportunities in wind and solar parks and enabled investors to
participate in such projects over closed-end funds in the form of limited partnerships
(‘‘Kommanditgesellschaften’’). These funds invested in turn directly or indirectly via holding and
management companies in operating companies for wind or solar parks in Europe.
The holding und operating companies are organized under the following Fund-KGs:
• CHORUS CleanTech Portfolio GmbH & Co. KG
• CHORUS CleanTech Solar GmbH & Co. KG
• CHORUS CleanTech Solar GmbH & Co. 2 KG
• CHORUS CleanTech Solar GmbH & Co. 3 KG
F-25
• CHORUS CleanTech Solar GmbH & Co. 4 KG
• CHORUS CleanTech Solar GmbH & Co. 5 KG
• CHORUS CleanTech Solar GmbH & Co. 6 KG
• CHORUS CleanTech Solar GmbH & Co. 7 KG
• CHORUS CleanTech Solar GmbH & Co. 8 KG
• CHORUS CleanTech Solar PP GmbH & Co. 3 KG
• CHORUS CleanTech Solar PP GmbH & Co. 4 KG
• CHORUS CleanTech Solar PP GmbH & Co. 5 KG
• CHORUS CleanTech Solar PP GmbH & Co. 10 KG
• CHORUS CleanTech Solar PP GmbH & Co. 12 KG
• CHORUS CleanTech Solar PP GmbH & Co. 13 KG
• CHORUS CleanTech Wind GmbH & Co. 10. KG
• CHORUS CleanTech Wind GmbH & Co. 11. KG
• CHORUS CleanTech Wind PP GmbH& Co. 6 KG
• CHORUS CleanTech Wind PP GmbH & Co. 7. KG
• CHORUS CleanTech Wind PP GmbH & Co. 9. KG
• CHORUS Equity CleanTech GmbH & Co. KG
• CHORUS Equity CleanTech GmbH & Co. 2. KG
As part of the aforementioned capital increase CHORUS GmbH with the majority of the management and
advisory services and its subsidiaries as well as the investments in German and foreign holding and
operating companies held directly or indirectly by the individual Fund-KGs were contributed to CHORUS
AG.
„Holding and operating companies’’ comprise the 74 companies, which hold the 57 solar parks and 5 wind
parks. Through its holding and operating companies CHORUS acquires and operates solar and wind
parks in Europe, with a focus on Germany. The CHORUS Portfolio produced a total of 219,249 MWh in
the financial year 2014. CHORUS’ 57 solar parks generated 164,034 MWh and its five wind parks
55,215 MWh in 2014.
1.2 Preparation of combined financial statements
Purpose of the combined financial statements
Under the Regulation (EC) No. 809/2004 (‘‘Prospectus Regulation’’), an issuer must present historical
financial information in its prospectus covering the latest three financial years in its prospectus or such
shorter period since the issuer has been in operation.
In accordance with the Prospectus Regulation, CHORUS AG as the issuer has a ‘‘complex financial
history’’, as neither stand-alone nor consolidated financial statements of the issuer exist that cover the
latest three financial years of the operating activities of the CHORUS Group. Due to its complex financial
history, the CHORUS Group prepared combined financial statements based on IFRS as adopted in the
European Union for the periods from January 1 to December 31, 2012, January 1 to December 31, 2013,
F-26
and January 1 to December 17, 2014, comprising the combined statement of profit or loss and other
comprehensive income, the combined statement of financial position, the combined statement of cash
flows, the combined statement of changes in net assets, and the notes to the combined financial
statements with a summary of significant accounting policies and other explanatory information for the
relevant periods.
The combined financial statements present the net assets, results of operations and cash flows of
CHORUS Clean Energy AG, CHORUS GmbH and its subsidiaries, and the holding and operating
companies. These combined financial statements are not necessarily indicative of the results that would
have been attained had the CHORUS Group been operated as a legal group for the periods presented
and, therefore, are not necessarily indicative of future operating results.
Presentation of the combined financial statements
The combined financial statements of CHORUS Group for the periods from January 1 to December 31,
2012, January 1 to December 31, 2013, and January 1 to December 17, 2014 were prepared for the first
time in accordance with International Financial Reporting Standards (IFRS) and the Interpretations of the
International Reporting Standards Interpretations Committee (IFRIC) as endorsed by the EU. All IFRS
mandatorily applicable at December 17, 2014 were applied retrospectively for all periods shown in the
combined financial statements. With respect to the application of IFRS already published but not yet
effective at December 17, 2014 we refer to note 2.
The transition date for the first-time application of IFRS is as at January 1, 2012. IFRS 1 ‘‘First-time
Adoption of International Financial Reporting Standards’’ the applicable standard permits first-time
adopters to use simplifications and exceptions from the principle of retrospective application for certain
issues. The CHORUS Group has not used any exemptions.
The Group has consistently applied the accounting policies used in the preparation of its opening IFRS
statement of financial position at January 1, 2012 throughout all periods presented, as if these policies
had always been in effect.
Since the 74 contributed holding and operating entities were neither under the control of the CHORUS AG
(or any other entity controlled by the CHORUS AG) or CHORUS GmbH nor under common control with
the CHORUS AG or CHORUS GmbH until the reorganization measures and contribution of the holding
and operating entities occurred in December 2014, the combined financial statements were prepared on
the basis of the so-called ‘‘common management’’ approach in accordance with the working paper of the
Fédération des Experts Comptables Européens (FEE) dated February 2013 and the following binding
elements:
• First, CHORUS AG since its incorporation, CHORUS GmbH and its subsidiaries as well as the 74
holding and operating entities directly and indirectly held by the limited partnerships were under
common management in the periods from January 1 to December 31, 2012, January 1 to
December 31, 2013, and January 1 to December 17, 2014. This is due to the fact that subsidiaries
of CHORUS GmbH managed the Fund KGs as general partner with no or only a marginal interest
in the entities. Hence the limited partnerships were characterized by a common management that
was ultimately exercised directly or indirectly by the board of directors of CHORUS GmbH at that
time.
• Second, based on the significant provision of services by the respective subsidiaries of
CHORUS GmbH to the individual limited partnerships and the holding and operating entities held
by the limited partnerships in the relevant periods, all of the entities of the CHORUS Group and the
holding and operating entities at such time were managed as an economic unit and were
characterized by a common economic interest of the shareholders of the CHORUS Group and the
limited partnerships. In addition, the approvals by 20 limited partnerships and the shareholders of
CHORUS GmbH regarding the subsequent reorganization of the CHORUS Group, and, in
particular, with respect to the contributions of the holding and operating entities, can be regarded
as further evidence of the common economic interest.
• Third, CHORUS AG was founded in July 2014 as a new company intended to be the future group
parent company.
F-27
Under the common management approach, the financial information of CHORUS AG since its
incorporation, CHORUS GmbH and its subsidiaries, and the 74 holding and operating entities were
combined for the periods from January 1 to December 31, 2012, January 1 to December 31, 2013, and
January 1 to December 17, 2014 since they were all under a common management for the respective
periods. Any transactions and intercompany balances between CHORUS AG, CHORUS GmbH and its
subsidiaries, and the holding and operating entities included in the combined financial statements were
eliminated as well as the equity investments held by CHORUS GmbH or the Italian holding companies in
entities belonging to the Combined Group.
The common management for CHORUS AG, CHORUS GmbH and its subsidiaries, and the 74 holding
and operating entities ceased to exist upon the first contribution of the holding and operating entities to the
Company becoming effective on December 17, 2014. Therefore, the contributions of the interests in the
holding and operating entities and the interests in CHORUS GmbH into the CHORUS AG were not
reflected in the combined financial statements prepared under the common management approach.
Insofar, for 2014, the combined financial statements include a combined statement of financial position as
of December 17, 2014, and combined statements of profit or loss and other comprehensive income, cash
flows, and changes in net assets for the period from January 1 to December 17, 2014.
The combined financial statements were prepared by the management of CHORUS AG, Neubiberg, on
April 20, 2015.
2
Application of new and revised international financial reporting standards
The Group has not applied the following new and revised IFRSs that have been issued but are not yet
effective:
Standard
Issued IASB
Effective date
Endorsement EU
Changes
IAS 1
Presentation of
Financial
Statements
December-14
January-16
pending
Clarifies that information should not be obscured by
aggregating or by providing immaterial information,
materiality considerations apply to the all parts of
the financial statements, and even when a standard
requires a specific disclosure, materiality
considerations do apply; clarification that the list of
line items to be presented in these statements can
be disaggregated and aggregated as relevant and
additional guidance on subtotals in these
statements and clarification that an entity’s share of
OCI of equity-accounted associates and joint
ventures should be presented in aggregate as
single line items based on whether or not it will
subsequently be reclassified to profit or loss;
additional examples of possible ways of ordering
the notes to clarify that understandability and
comparability should be considered when
determining the order of the notes and to
demonstrate that the notes need not be presented
in the order so far listed in paragraph 114 of IAS 1.
F-28
Standard
Issued IASB
Effective date
Endorsement EU
Changes
IAS 16
Property, Plant
and Equipment
and
IAS 38
Intangible
Assets
June-14
January-16
pending
Clarifies that a depreciation method that is based on
revenue that is generated by an activity that
includes the use of an asset is not appropriate for
property, plant and equipment introduce a
rebuttable presumption that an amortisation method
that is based on the revenue generated by an
activity that includes the use of an intangible asset is
inappropriate, which can only be overcome in
limited circumstances where the intangible asset is
expressed as a measure of revenue, or when it can
be demonstrated that revenue and the consumption
of the economic benefits of the intangible asset are
highly correlated add guidance that expected future
reductions in the selling price of an item that was
produced using an asset could indicate the
expectation of technological or commercial
obsolescence of the asset, which, in turn, might
reflect a reduction of the future economic benefits
embodied in the asset.
IAS 19
Employee
Benefits
November-13
February-15
December-14
Amends IAS 19 Employee Benefits to clarify the
requirements that relate to how contributions from
employees or third parties that are linked to service
should be attributed to periods of service. In
addition, it permits a practical expedient if the
amount of the contributions is independent of the
number of years of service, in that contributions,
can, but are not required, to be recognised as a
reduction in the service cost in the period in which
the related service is rendered.
IAS 27
Separate
Financial
Statements
August-14
January-16
pending
Amends IAS 27 Separate Financial Statements to
permit investments in subsidiaries, joint ventures
and associates to be optionally accounted for using
the equity method in separate financial statements.
IAS 41 IAS 16
Agriculture:
Bearer Plants
Property, Plant
and Equipment
June-14
January-16
pending
Includes ‘bearer plants’ within the scope of IAS 16
rather than IAS 41, allowing such assets to be
accounted for a property, plant and equipment and
measured after initial recognition on a cost or
revaluation basis in accordance with IAS 16
introduce a definition of ‘bearer plants’ as a living
plant that is used in the production or supply of
agricultural produce, is expected to bear produce for
more than one period and has a remote likelihood of
being sold as agricultural produce, except for
incidental scrap sales clarify that produce growing
on bearer plants remains within the scope of IAS 41.
IFRS 10
IAS 28
Consolidated
Financial
Statements
Investments in
Associates and
Joint Ventures
September-14
January-16
pending
Amends IFRS 10 Consolidated Financial
Statements and IAS 28 Investments in Associates
and Joint Ventures (2011) to clarify the treatment of
the sale or contribution of assets from an investor to
its associate or joint venture, as follows:
—require full recognition in the investor’s financial
statements of gains and losses arising on the sale or
contribution of assets that constitute a business (as
defined in IFRS 3 Business Combinations) require
the partial recognition of gains and losses where the
assets do not constitute a business, i.e. a gain or
loss is recognised only to the extent of the unrelated
investors’ interests in that associate or joint venture.
These requirements apply regardless of the legal
form of the transaction, e.g. whether the sale or
contribution of assets occurs by an investor
transferring shares in an subsidiary that holds the
assets (resulting in loss of control of the subsidiary),
or by the direct sale of the assets themselves.
F-29
Standard
Issued IASB
Effective date
Endorsement EU
Changes
IFRS 9
Financial
Instruments
July-14
January-18
pending
A revised version of IFRS 9 incorporating revised
requirements
for
the
classification
and
measurement of financial liabilities, and carrying
over the existing derecognition requirements from
IAS 39 Financial Instruments: Recognition and
Measurement.
The revised financial liability provisions maintain the
existing amortised cost measurement basis for most
liabilities. New requirements apply where an entity
chooses to measure a liability at fair value through
profit or loss—in these cases, the portion of the
change in fair value related to changes in the entity’s
own credit risk is presented in other comprehensive
income rather than within profit or loss.
Introduces a new hedge accounting model that is
designed to be more closely aligned with how
entities undertake risk management activities when
hedging financial and non-financial risk exposures.
IFRS 10
IFRS 12
IAS 28
Investment
Entities:
Applying the
Consolidation
Exception
December-14
January-16
pending
Amends IFRS 10 Consolidated Financial
Statements, IFRS 12 Disclosure of Interests in
Other Entities and IAS 28 Investments in Associates
and Joint Ventures (2011) to address issues that
have arisen in the context of applying the
consolidation exception for investment entities by
clarifying the following points:
The exemption from preparing consolidated
financial statements for an intermediate parent
entity is available to a parent entity that is a
subsidiary of an investment entity, even if the
investment entity measures all of its subsidiaries at
fair value.
A subsidiary that provides services related to the
parent’s investment activities should not be
consolidated if the subsidiary itself is an investment
entity.
When applying the equity method to an associate or
a joint venture, a non-investment entity investor in
an investment entity may retain the fair value
measurement applied by the associate or joint
venture to its interests in subsidiaries.
An investment entity measuring all of its
subsidiaries at fair value provides the disclosures
relating to investment entities required by IFRS 12.
F-30
Standard
Issued IASB
Effective date
Endorsement EU
Changes
IFRS 10 /
IAS 28
September-14
January-16
pending
Amendments to IAS 28:
The requirements on gains and losses resulting
from transactions between an entity and its
associate or joint venture have been amended to
relate only to assets that do not constitute a
business.
A new requirement has been introduced that
gains or losses from downstream transactions
involving assets that constitute a business between
an entity and its associate or joint venture must be
recognised in full in the investor’s financial
statements.
A requirement has been added that an entity
needs to consider whether assets that are sold or
contributed in separate transactions constitute a
business and should be accounted for as a single
transaction.
Amendments to IFRS 10:
An exception from the general requirement of full
gain or loss recognition has been introduced into
IFRS 10 for the loss control of a subsidiary that does
not contain a business in a transaction with an
associate or a joint venture that is accounted for
using the equity method.
New guidance has been introduced requiring that
gains or losses resulting from those transactions are
recognised in the parent’s profit or loss only to the
extent of the unrelated investors’ interests in that
associate or joint venture. Similarly, gains and
losses resulting from the remeasurement at fair
value of investments retained in any former
subsidiary that has become an associate or a joint
venture that is accounted for using the equity
method are recognised in the former parent’s profit
or loss only to the extent of the unrelated investors’
interests in the new associate or joint venture.
IFRS 11
Accounting for
Acquisitions of
Interests in Joint
Operations
May-14
January-16
pending
Amends IFRS 11 Joint Arrangements to require an
acquirer of an interest in a joint operation in which
the activity constitutes a business (as defined in
IFRS 3 Business Combinations) to:
Apply all of the business combinations accounting
principles in IFRS 3 and other IFRSs, except for
those principles that conflict with the guidance in
IFRS 11 disclose the information required by IFRS 3
and other IFRSs for business combinations.
The amendments apply both to the initial acquisition
of an interest in joint operation, and the acquisition
of an additional interest in a joint operation (in the
latter case, previously held interests are not
remeasured).
IFRS 14
Regulatory
Deferral
Accounts
January-14
January-16
pending
F-31
IFRS 14 permits an entity which is a first-time
adopter of International Financial Reporting
Standards to continue to account, with some limited
changes, for ‘regulatory deferral account balances’
in accordance with its previous GAAP, both on initial
adoption of IFRS and in subsequent financial
statements.
Standard
Issued IASB
Effective date
Endorsement EU
Changes
IFRS 15
Revenue from
Contracts with
Customers
May-14
January-17
pending
IFRS 15 provides a single, principles based
five-step model to be applied to all contracts with
customers.
The five steps in the model are as follows:
Identify the contract with the customer Identify the
performance obligations in the contract Determine
the transaction price Allocate the transaction price
to the performance obligations in the contracts
Recognise revenue when (or as) the entity satisfies
a performance obligation.
Guidance is provided on topics such as the point in
which revenue is recognised, accounting for
variable consideration, costs of fulfilling and
obtaining a contract and various related matters.
New disclosures about revenue are also introduced.
Annual
Improvements
2010-2012
Cycle
December-13
February 2015
December 2014
The amendment is part of the IASB’s annual
improvements project.
Annual
Improvements
2011-2013
Cycle
December-13
January-15
December 2014
The amendment is part of the IASB’s annual
improvements project.
Annual
Improvements to
IFRSs
2012-2014
Cycle
September-14
January-16
pending
The amendment is part of the IASB’s annual
improvements project.
CHORUS AG is in process of analyzing the effects of these not yet applicable standards on CHORUS
AG’s accounting. The impact on CHORUS AG’s accounting cannot finally be determined.
3
Critical accounting judgements and key sources of estimation uncertainties
The preparation of financial statements in conformity with IFRS requires management to make
judgements, estimates and assumptions that affect the application of accounting policies and the
reported amounts of assets, liabilities, income and expenses. Actual results may differ from these
estimates. Estimates and underlying assumptions are reviewed on an ongoing basis. Revisions to
accounting estimates are recognized in the period in which the estimates are revised and in any future
periods affected.
The key assumptions concerning the future economic situation and other key sources of estimation
uncertainty at the balance sheet date that have a significant risk of causing a material adjustment to the
carrying amounts of assets and liabilities within the next financial year are discussed below.
Impairment of non-financial assets
The Group assesses whether there are any indicators of impairment for all non-financial assets at each
reporting date. Other non-financial assets are tested for impairment when there are indications that the
carrying amounts may not be recoverable. Specific fundamental assumptions were made to determine
the recoverable amount when assessing the recoverability of intangible assets and property, plant and
equipment of the Group. In this context, the expected cash flows used in impairment testing are derived
from budgets from medium-term planning for each respective CGU. Management assumes that the
assumptions and estimates underlying the discounted cash flows are appropriate. However, changes in
the economic environment and the industry-specific growth assumptions can have consequences for
impairment testing resulting in the need to recognize additional impairment losses or to reverse
impairment losses in the future.
F-32
Taxation
The Company and its subsidiaries are subject to routine tax audits and also a process whereby tax
computations are discussed and agreed with the respective authorities. Whilst the ultimate outcome of
such tax audits and discussions cannot be determined with certainty, management estimates the level of
provisions required for both current and deferred tax on the basis of professional advice and the nature of
current discussions with the tax authority concerned.
Deferred tax assets are recognized on unused tax losses to the extent that it is probable that taxable
profits will be available in the future against which the unused tax losses can be utilized. In this regard,
management exercises judgment as to the expected timing and the amount of the taxable profits and
measures deferred tax assets on unused tax losses accordingly.
For further details refer to note 6.7 Income taxes and 7.6 Deferred taxes.
Economic useful lives of property, plant and equipment and intangible assets
The applied economic lives of non-current assets are based on estimates of the management. The Group
reviews the estimated economic useful lives of property, plant and equipment and intangible assets at the
end of every financial year.
For further details refer to note 4.6 and note 4.7
Provisions for asset retirement obligations relating to solar and wind parks
Such provisions are recognized when it is considered probable that economical, legal, ecological and
asset retirement obligations will result in future outflows of economic benefits, when the costs can be
estimated reliably and the measures in question are not expected to result in future inflows of economic
benefits. The estimate of future costs is subject to many uncertainties, including legal uncertainties based
on the applicable laws and regulations and with uncertainties regarding to the actual conditions in the
different countries and operating locations. In particular, estimates of costs are based on industry
experiences in similar cases, current costs and new developments that have an impact on the costs. Any
changes to these estimates could have an impact on the future results of the Group.
4
Significant accounting policies
4.1 Basis of combination
The combined financial statements have been prepared for the first time in accordance and in conformity
with all International Financial Reporting Standards (IFRS) and the publications of the International
Financial Reporting Interpretations Committee (IFRIC), as endorsed by the EU.
The combined financial statements have been prepared on the historical cost basis except for certain
properties and financial instruments that are measured at fair values, as explained in the accounting
policies below.
The statement of cash flows was prepared using the indirect method in accordance with IAS 7.
The analysis of expenses recognized in profit or loss is presented using a classification based on their
nature.
The combined financial statements are presented in euros (EUR) and all values are rounded to the
nearest thousand (e000), unless otherwise indicated.
These combined financial statements include the CHORUS AG, operations of CHORUS GmbH and its
nine subsidiaries as well as the 74 holding and operating companies, mostly in the form of limited
partnerships, directly and indirectly held by the funds, being limited partnerships under common
management in the period 2014 and the years 2013 and 2012.
F-33
Subsidiaries are entities over which a parent company has control. Control exists where the parent
company is exposed to variable returns or has a right to these returns and has the ability to influence
these returns through its power to govern the entity. In these combined financial statements subsidiaries
only exist within the CHORUS GmbH Group.
Combined entities are entities under ‘‘common management’’. For further details please refer to note 1.2.
Receivables and liabilities between the consolidated or combined entities are netted. Intercompany
profits are eliminated in the combined statement of profit and loss and other comprehensive income.
Intercompany sales and other intercompany income are netted against the corresponding expense.
Since there was no direct participating interest between CHORUS AG and/or CHORUS GmbH and the
holding and operating companies, there was no consolidation of these companies’ capital, with the
exception of the capital consolidation of CHORUS GmbH and its subsidiaries and of the Italian holding
companies (please refer to note 1.1) and their respective subsidiaries. The combined financial
statements were prepared by aggregating the assets and liabilities of all holding and operating
companies included in the combined financial statements with the consolidated financial information of
CHORUS GmbH and its nine subsidiaries, and of the CHORUS’ Italian groups.
Insofar, the net assets presented in the combined statement of financial position comprise the
consolidated equity of CHORUS GmbH and of CHORUS’ Italian groups and of CHORUS AG as well as
all the sum of the net assets of the operating companies.
Associated enterprises are entities over which the Group has significant influence, but not control or joint
management with regard to the financial and strategic business policies.
The Combined Group is presented in Appendix 1 accompanying these Notes (as an integral part).
The financial year of all companies included in the combined financial statements ends on December 31.
The financial year 2014 for the Combined Group was a short reporting period from January 1, 2014 to
December 17, 2014.
The results and assets and liabilities of associates (qualified in accordance with IAS 28) or joint ventures
(qualified in accordance with IFRS 11) are incorporated into these combined financial statements using
equity method accounting. A joint arrangement is classified as joint venture, if the parties that have joint
control of the arrangement have rights to the net assets of the arrangement. Changes in the share of the
associate’s/joint venture’s equity that are not to be recognized in profit or loss are recognized directly in
net assets in the combined financial statements. The same accounting policies are used to determine
CHORUS Group’s share in equity of all companies accounted for using the equity method.
A joint arrangement whereby the parties that have joint control of the arrangement have rights to the
assets, and obligations for the liabilities, relating to the arrangement is accounted for as following:
CHORUS Group recognizes in relation to its interest in a joint operation:
• its assets, including its share of any assets hold jointly;
• its liabilities, including its share of any liabilities incurred jointly;
• its revenue from the sale of its share of the output arising from the joint operation;
• its share of the sale of the output by the joint operation;
• its expenses including its share of any expenses incurred jointly.
4.2 Changes in the Combined Group
The composition of the Group as at December 17, 2014 can be found in Appendix 1.
F-34
Changes in the Combined Group occur if one of the Fund-KG gains control over an operating company.
Due to the common management approach the operating companies are considered in the scope of
combination, even if the Combined Group does not control the operating company.
For additions to the Combined Group, in the interests of fair presentation, certain disclosures are made
for the book values of acquired assets and liabilities of each new addition to the Combined Group.
The results of additional entities are included in the combined statement of profit or loss and other
comprehensive income based on their Group affiliation.
4.3 Foreign currency translation
The combined financial statements are prepared in Euro (EUR), which is the presentation currency of the
combined group as well as the functional currency of the Combined entities. For each entity the functional
currency is determined and items included in the financial statements of each entity are measured using
that functional currency.
Two group companies have exposure to the U.S. dollar, because of their investments in available-for-sale
investment funds. The exchange rates applicable were as follows:
EUR/USD
Period end rate
Average rate for the financial year
December 17,
2014
December 31,
2013
December 31,
2012
1.25
1.33
1.38
1.33
1.32
1.29
4.4 Revenues
Revenue is measured at the fair value of the consideration received or receivable. Revenue is reduced for
rebates and other similar allowances. Revenues from the sale of electricity are recognized if they meet
the following criteria:
• The significant risks and rewards associated with the ownership are transferred to the buyer.
• Neither a continuing managerial involvement to the degree usually associated with ownership nor
effective control is retained.
• the amount of revenue can be measured reliably.
• It is probable that the economic benefit associated with the transaction will flow to the entity, and
• the costs incurred or to be incurred with the sale can be measured reliably.
Accordingly, revenues from the sale of electricity are to be recognized if the electricity were delivered and
the ownership has been legally transferred.
The so-called ‘‘market premium’’ was introduced in section 33g of the German Renewable Energy Act
(Erneuerbare-Energien-Gesetz, EEG) effective January 1, 2012. The grid operator pays the market
premium to the operators of plants that produce electricity from renewable energy who choose to market
their electricity directly on electricity exchanges in place of the EEG compensation model. The plant
operators receive the regular market price on the electricity exchanges, which is lower than the feed-in
tariff based on the EEG. The market premium compensates the difference between the EEG feed-in
tariffs and the average monthly market price on the electricity exchanges. The actual volume of directly
marketed electricity is determined by meter readings.
Feed-in tariffs in Italy are defined in the Italian Renewable Energy Act ‘‘Conto Energia’’. A fixed feed-in
tariff is earned and additionally the electricity is sold at a market price taking into account a certain
minimum guaranteed price. In 2014 the feed-in tariffs have been lowered and the minimum price is
cancelled.
F-35
The payment of the market premium and the flexibility premium in accordance with sections 33g and 33i
EEG by the grid operator to the plant operators are recognized proportionally to the related sale of
electricity.
Revenues from the sales of services are to be recognized if the services for administration, asset
management and consulting advice, planning, design or conceptual support were delivered.
Finance income
Finance income includes:
• Foreign currency gains
• Gains from the changes in Fair Value of liabilities to limited partners
• Dividend income on available-for-sale financial assets
Dividend income from shares is recognized when the shareholder’s claim to payment arises (provided
that it is likely that the economic benefit will flow to the Group and the amount of the income can be
measured reliably).
Interest income attributable to the period is to be recognized based on the outstanding notional amount
using the relevant effective interest rate. The effective interest rate is the interest rate with which the
expected future payments are discounted over the term of the financial asset precisely to the net carrying
amount of the asset upon initial recognition.
Finance expenses
Finance expenses include:
• Interest expenses
• Foreign currency losses
• Losses from the changes in Fair Value of liabilities to limited partners
• Impairments of non-current financial assets
Interest expenses are recorded using the effective interest rate method.
4.5 Leasing
Leases are classified as finance leases whenever the terms of the lease transfer substantially all the risks
and rewards of ownership to the lessee. All other leases are classified as operating leases.
The Combined Group has financed solar plants through lease agreements under which the significant
risks and rewards are transferred to the Combined Group. These lease agreements were treated as
finance leases in accordance with IAS 17. The solar plants of the respective solar park represent a
collateral for the respective liability. The Combined Group is only engaged as lessee. Assets held under a
finance lease are recognized initially as assets of the combined group at their fair value at the inception of
the lease or—if it is lower—at the present value of the minimum lease payments. The corresponding
liability to the lessor is to be shown in the combined statement of financial position as a finance lease
obligation. The lease payments are broken down into interest expense and the repayment of the lease
obligation such that the remaining liability bears interest at a constant rate. Interest expense is recognized
directly in the statement of profit and loss.
Lease payments under operating leases are recognized as expense using a straight-line approach over
the lease term. Contingent rentals arising under operating leases are recognized as an expense in the
period in which they are incurred.
F-36
4.6 Intangible assets
Purchased intangible assets are recognized at cost or, if acquired in a business combination, at their
respective fair values. They are amortized on a straight-line basis over their useful lives. Intangible assets
with indefinite useful lives are subject to an annual impairment test and not to scheduled amortization.
Amortization of intangible assets is based on the following useful life periods:
Computer software
5 years
For further details refer to note 7.1.
The estimated useful life and amortization method is reviewed at the end of each reporting period, with
the effect of any changes in estimate being accounted for on a prospective basis.
4.7 Property, plant and equipment
Items of property, plant and equipment are measured at cost less accumulated depreciation and
accumulated impairment losses.
Cost includes expenditure that is directly attributable to the acquisition or production of the asset. The
cost of self-constructed assets includes the cost of materials and direct labor, any other costs directly
attributable to bringing the assets to a working condition for their intended use and the costs of
dismantling and removing the items.
If parts of an item of property, plant and equipment have different useful lives, they are accounted for as
separate items (major components) of property, plant and equipment.
Gains and losses on disposal of an item of property, plant and equipment are determined by comparing
the proceeds from disposal with the carrying amount of property, plant and equipment, and are
recognized net within other income or other expenses in profit or loss.
Depreciation is recognized in profit or loss on a straight-line basis over the estimated useful life of each
part of an item of property, plant and equipment. If there is no reasonable certainty that the lessee will
obtain ownership by the end of the lease term, the leased asset under finance lease shall be fully
depreciated over the shorter of the lease term and its useful life. Land is not depreciated. Depreciation
methods, useful lives and residual values are reviewed at each reporting date.
The estimated useful lives for the current and comparative periods are as follows:
Land
Wind and solar parks
Other operating and office equipment
Leased assets under finance lease
Assets under construction
n/a
25 years
2 - 13 years
25 years
n/a
For further details refer to note 7.2
4.8 Impairment of tangible and intangible assets
The carrying amounts of the Group’s intangible assets and items of property, plant and equipment are
reviewed at least at each reporting date to determine whether there is any indication of impairment. If any
such indication (triggering event) exists, the asset’s recoverable amount is estimated.
The recoverable amount of an asset is defined as the higher of its fair value less costs of disposal and its
value in use. In assessing value in use, the estimated future cash flows are discounted to their present
value using a pre-tax discount rate that reflects current market assessments of the time value of money
and the risks specific to the asset. If the carrying amount exceeds the recoverable amount, the difference
is recognized as an impairment loss in the profit and loss statement. For the impairment test, assets are
reflected at the lowest level for which cash flows are separately identifiable. If the cash flow for an asset is
F-37
not separately identifiable, the impairment test is conducted on the basis of the cash-generating units
(CGUs) to which the asset belongs.
An impairment loss is recognized if the carrying amount of an asset or its CGU exceeds its estimated
recoverable amount. Impairment losses are recognized in profit or loss. Impairment losses recognized in
respect of CGUs are allocated first to reduce the carrying amount of any goodwill allocated to the CGUs
and then to reduce the carrying amounts of the other assets in the CGU (group of CGUs) on a pro rata
basis.
Impairment losses recognized in prior periods are assessed at each reporting date for any indications that
the loss has decreased or no longer exists. An impairment loss is reversed, if there has been a change in
the estimates used to determine the recoverable amount. An impairment loss is reversed only to the
extent that the asset’s carrying amount does not exceed the carrying amount that would have been
determined, net of depreciation or amortization, if no impairment loss had been recognized. Detailed
information is reported within note 7.1 Intangible assets and note 7.2 Property, plant and equipment.
4.9 Financial instruments
Financial assets and financial liabilities are included in the combined statement of financial position
beginning on the date on which the Group becomes a contractual party of the financial instrument.
Financial assets that are acquired or sold the regular way are generally recognized at the settlement date.
All financial instruments are measured at fair value at initial recognition plus, in the case of financial
assets or financial liability not measured at fair value through profit or loss, transaction costs that are
directly attributable to the acquisition or issue of the financial asset or liability.
Classes in accordance with IFRS 7
The CHORUS Group groups financial instruments into the following classes:
• Current financial assets
• Non-current financial assets
• Trade and other receivables
• Receivable against shareholders
• Cash and cash equivalents
• Restricted cash and cash equivalents
• Liabilities to limited partners
• Liabilities to shareholders
• Financial liabilities
• Trade payables
• Interest rate swaps with positive fair value
Non-current financial assets comprise only available-for-sale investments as described under note 7.4
Non-current financial assets.
Financial liabilities are further split into the following classes:
• Bank loans
• Leasing liabilities
F-38
• Interest rate swaps with negative fair value
4.9.1 Financial assets
Categories of financial assets
Financial assets as defined under IAS 39 are classified in the following categories:
• financial assets measured at fair value through profit or loss (FAHfT)
• loans and receivables (LaR)
• available-for-sale financial assets (AfS)
Financial assets are categorized at acquisition based on their type and intended use at the time of initial
recognition. Financial assets are recognized and derecognized at the settlement date if they are
non-current financial assets to be delivered within the normal time frame for the relevant market.
Financial assets are derecognized when the rights to receive cash flows from the investments have
expired or have been transferred and the group has transferred substantially all risks and rewards of
ownership.
The Company’s financial instruments mainly comprise cash and cash equivalents, restricted cash and
cash equivalents (for further details please refer to note 8), trade and other receivables and other financial
assets.
Financial assets measured at fair value through profit or loss
Financial assets are classified as at fair value through profit and loss when the financial asset is either
held for trading or it is designated as at fair value through profit and loss.
The Group’s financial instruments measured at fair value through profit and loss as of the respective
balance sheet date represent interest rate swaps that were classified as derivatives held for trading.
Those interest rate swaps are derivatives that are not designated as hedging instruments in accordance
with IAS 39.
Loans and receivables
Loans and receivables are non-derivative financial assets with payments that are fixed or can be
otherwise determined that are not listed in an active market. Loans and receivables are measured at
amortized cost. Loans and receivables (including loans, trade receivables, other receivables, cash held at
banks) are measured based on the effective interest method at amortized cost less any impairment
losses. Cash are measured at its nominal amount.
With the exception of current receivables, for which the effect from discounting would be immaterial,
interest income is recognized based on the effective interest method.
Available-for-sale financial assets
AfS financial assets are non-derivative equity instruments that are either designated as AfS or are not
classified as LaR or FAHfT. AfS financial assets are stated at fair value at the end of each reporting
period. Investments in unlisted shares that are not traded in an active market are also classified as AfS
financial assets and stated at fair value at the end of each reporting period. AfS equity investments that do
not have a quoted market price in an active market and whose fair value cannot be reliably measured are
measured at cost less any identified impairment losses at the end of each reporting period. Changes—
other than changes in foreign currency rates and dividends on AfS equity investments which are
recognized in profit or loss—in the carrying amount of AfS financial assets are recognized in other
comprehensive income. When the investment is disposed of or is determined to be impaired, the
cumulative gain or loss previously accumulated in other comprehensive income is reclassified to profit or
F-39
loss. Dividends on AfS equity instruments are recognized in profit or loss when the Group’s right to
receive the dividends is established.
For further details please refer to note 7.9 Current financial assets.
Impairment of financial assets
On each reporting date, financial assets—with the exception of financial assets measured at fair value
through profit or loss—are examined for indications of impairment. Financial assets are regarded as
impaired when there are objective indications as a consequence of one or more events that there are
negative changes to expected future cash flows associated with the financial asset which occurred after
initial recognition of the asset.
In the case of AfS equity investments, an objective evidence of impairment is assumed when there is a
significant or prolonged decline in the fair value of the security below its cost.
With respect to all other financial assets, objective indications of impairment can include the following:
Financial difficulties on the part of the issuer or the counterparty, a breach of contract such as a default or
the late payment of interest or principal or an elevated probability that the borrower becomes insolvent or
otherwise begins a restructuring process or the disappearance of an active market for that financial asset
because of financial difficulties.
For financial assets carried at amortized cost, the amount of the impairment loss recognized is the
difference between the asset’s carrying amount and the present value of estimated future cash flows,
discounted at the financial asset’s original effective interest rate. With respect to financial assets
measured at cost, the impairment loss corresponds to the difference between the carrying amount of the
asset and the present value of the expected future cash flow calculated with the current market yield of a
comparable financial asset. Any impairment losses caused by the present value of the future cash flow
being lower than the carrying amount are recognized in profit or loss.
If the amount of impairment of a financial asset measured at amortized cost decreases in a subsequent
financial year and this decrease can be objectively attributed to an event that occurred after the
impairment was recognized, the previously recognized impairment is reversed over the statement of
profit or loss, whereby the impairment is reversed to an amount not to exceed the carrying amount that
would have resulted if an impairment loss had not been recognized.
4.9.2 Financial liabilities
Financial liabilities are classified either as financial liabilities measured at fair value through profit or loss
(FLHfT) or as other financial liabilities at amortized cost (FLAC). Financial liabilities are classified as
FLHfT when the financial liability is either held for trading or it is designated as at fair value through profit
or loss.
Financial liabilities are measured at fair value on initial recognition. For all financial liabilities not
subsequently measured at fair value through profit or loss, the transaction costs directly attributable to the
acquisition are also recognized. Trade payables and other non-derivative financial liabilities are generally
measured at amortized cost using the effective interest method.
Liabilities to limited partners
Partly, subsidiaries are organized as a limited partnership (Personenhandelsgesellschaft) under German
law. Its limited partners have a statutory right of cancellation that cannot be precluded by the partnership
agreement and may therefore require the company to repay capital contributions, and a related share of
profits.
Profits allocated to limited partners in accordance with the provisions of the bylaws of the limited
partnerships are reclassified to liabilities since the limited partners are able to withdraw the amounts once
they have been allocated.
F-40
Liabilities to limited partners are recorded initially at fair values at the balance sheet date. Changes in
these fair values during a reporting period as well as their respective share in profit (loss) of the year are
recorded through finance income or finance expenses in the income statement.
Other financial liabilities
Other financial liabilities (including borrowings, trade payables, and other liabilities) are measured based
on the effective interest method at amortized cost.
The effective interest method is a method of calculating the amortized cost of a financial liability and the
allocation of interest expenses to the respective periods. The effective interest rate is the interest rate
used to discount the estimated future payments (including all fees and amounts paid or received that are
an integral component of the effective interest rate, transaction costs, and other premiums or discounts)
are discounted to the net carrying amount from the initial recognition over the expected term of the
financial instrument or a shorter applicable period.
Derecognition of financial liabilities
The Group derecognizes a financial liability if the Group’s corresponding obligation(s) is/are discharged,
cancelled or expired. The difference between the carrying amount of the derecognized financial liability
and the consideration received or to be received is to be recognized in profit or loss.
4.9.3 Measurement of fair values
A number of the Group’s accounting policies and disclosures require the determination of fair value for
both financial instruments and non-financial assets and liabilities. When measuring the fair value of an
asset or liability, the Group uses market observable data as far as possible. Fair values are categorized
into different levels in a fair value hierarchy based on the inputs used in the valuation techniques as
follows:
• Level 1: quoted prices (unadjusted) in active markets for identical assets or liabilities
• Level 2: inputs other than quoted prices included in Level 1 that are observable for the asset or
liability, either directly (i.e. as prices) or indirectly (i.e. derived from prices)
• Level 3: inputs for the asset or liability that are not based on observable market data (unobservable
inputs)
If the inputs to measure the fair value of an asset or a liability might be categorized in different levels of the
fair value hierarchy, then the fair value measurement is categorized in its entirety in the same level of the
fair value hierarchy as the lowest level input that is significant to the entire measurement. The Group
recognizes transfers between levels of the fair value hierarchy at the end of the reporting period during
which the change has occurred.
4.9.4 Collateral
Financial liabilities represent ‘‘non-recourse borrowings’’. The entities included in the CHORUS Group
have provided the financing banks or creditors with collateral for these financial liabilities and also any
applicable contingent liabilities. As is typical with this type of financing, the property, plant and equipment,
all rights as well as all actual and future receivables are pledged to the banks. Consequently, the current
amount of the collateral provided corresponds to the carrying amounts of the current assets (without cash
and cash equivalents) and the non-current assets or it is intangible (e.g. right to enter into feed-in
contracts). This collateral in all loan contracts mostly takes the form of:
• executable land charges (property, plant and equipment)
• pledging of debt service and project reserve accounts (restricted cash and cash equivalent)
• assignment of the claim to payment from the feed-in of electricity on the part of the respective grid
company (revenues and receivables)
F-41
• assignment of payment and compensation claims against third parties from any direct marketing
agreements in connection with direct marketing (revenues)
• pledging of tangible fixed assets (property, plant and equipment)
• pledging of shares in Group entities
• pledging of other receivables
The counterparties have an obligation to release the securities at the repayment date of the loan.
4.10 Income taxes
Income tax expense comprises current and deferred tax. Income tax expense is recognized in profit or
loss except to the extent that it relates to items recognized directly in net assets, in which case it is
recognized in net assets.
Current tax is the expected tax payable on the taxable income for the year, using tax rates enacted or
substantively enacted at the reporting date and any adjustment to tax payable in respect of previous
years.
Deferred tax is recognized using the asset-liability-method, providing for temporary differences between
the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for
taxation purposes. Deferred tax is not recognized for the following temporary differences: the initial
recognition of assets or liabilities in a transaction that is not a business combination and that affects
neither accounting nor taxable profit or loss, and differences relating to investments in subsidiaries to the
extent that it is probable that they will not reverse in the foreseeable future.
Deferred tax is measured at the tax rates that are expected to be applied to temporary differences when
they reverse, based on the laws that have been enacted or substantively enacted by the reporting date.
Deferred tax assets and liabilities are offset, if there is a legally enforceable right to offset current tax
liabilities and assets and they relate to income taxes levied by the same tax authority on the same taxable
entity or on different tax entities, but they intend to settle current tax liabilities and assets on a net basis or
their tax assets and liabilities will be realized simultaneously.
Deferred tax assets are recognized for all unused tax losses to the extent that it is probable that taxable
profit will be available against which the losses can be utilized. Significant management judgement is
required to determine the amount of deferred tax assets that can be recognized, based upon the likely
timing and the level of future taxable profits together with future tax planning strategies.
A deferred tax asset is recognized to the extent that it is probable that future taxable profits will be
available against which the temporary difference can be utilized. Deferred tax assets are reviewed at
each reporting date and are reduced to the extent that it is no longer probable that the related tax benefit
will be realized.
The tax reconciliation and additional information are reported within the note 6.7 Income taxes.
4.11 (Restricted) Cash and cash equivalents
Deposits at banks are presented as cash. The carrying amounts of cash correspond to the fair value as a
result of their highly liquid nature.
The debt service and project reserve accounts serving as collateral for the lending banks for the solar and
wind parks can only be used in coordination with the lending banks for the respective company (for further
information please refer to section 4.9.5 and section 10). They are classified as restricted cash and cash
equivalents but not as cash and cash equivalents in the meaning of IAS 7.
F-42
4.12 Provisions
Provisions are recognized if the Group has a current (constructive or legal) obligation based on a past
event, the outflow of resources with economic benefits to fulfill the obligation is probable (more likely than
not) and the amount of the obligation can be reliably estimated. If the impact of the time value of money is
material, provisions are discounted at a risk-free interest rate. The risk inherent in the present obligation is
considered in determining the respective cash flows. If provisions are discounted, the increase in the
carrying amount over time is recognized as interest expense. Provisions are classified based on the
expected due dates; consequently, provisions due within up to one year are regarded as current and
provisions due in more than one year are regarded as non-current.
Current provisions are recognized at the expected settlement amount without discounting and reflect all
obligations identifiable on the reporting date based on past transactions or events preceding the reporting
date and their amount or due date is uncertain, whereby the amount recognized for a single obligation is
the most likely settlement amount. In case of large numbers of obligations within the same class all
possible outcomes are weighed by their associated probabilities (concept of the expected value).
Present obligations arising under onerous contracts are recognized and measured as provisions. This is
the case, if the unavoidable costs of meeting the obligations under the contract exceed the economic
benefits expected to be received from the contract.
Contingent liabilities are not recognized on the statement of financial positions. They are disclosed if the
possibility of an outflow of resources is not remote.
Provisions mainly comprise identifiable asset retirement obligations for solar and wind parks.
4.13 Related party transactions
During the year, Group companies entered into the transactions with related parties who are not
members of the Group.
Details of related party transactions and directors’ remuneration are given in note 11.2 Transactions with
related parties.
The Group has not made any allowance for bad or doubtful accounts in respect of related party debtors
nor has any guarantee been given or received during 2014, 2013 and 2012 regarding related party
transactions.
4.14 Government grants
Government grants are recognized where there is reasonable assurance that the grant will be received
and all attached conditions will be complied with. When the grant relates to an expense item, it is
recognized as income on a systematic basis over the periods that the related costs, for which it is
intended to compensate, are expensed.
5
Additions to the combined group
In the period 2012 to 2014, the Combined Group has been expanded by several entities as described
below. For further details please refer to note 4.2.
The principal reason for these additions was to expand and regionally diversify the renewable energy
generation business, by the acquisition of further investments in such power generation entities in
European countries.
2014:
In January 2014, the Combined Group expanded by CHORUS Clean Tech GmbH & Co. Solarpark
Warrenzin KG, a company whose principal activity is producing renewable energy by solar parks. This
company contributed EUR 620 thousand to Group revenues and EUR 187 thousand to Group profit / loss
for the year of expansion. If the group had consolidated CHORUS CleanTech GmbH & Co. Solarpark
F-43
Warrenzin KG on January 1, 2014, group revenues for 2014 would have been higher by EUR 0 thousand
and group profit / loss for the year would have increased by EUR 0 thousand.
Details of the book values as at the respective acquisition date of identifiable assets and liabilities
acquired:
CHORUS CleanTech GmbH & Co. Solarpark Warrenzin KG
CHORUS CleanTech GmbH & Co. Solarpark Warrenzin KG
in g(000)
1/20/2014
Property, plant and equipment
4,831
other assets
391
Trade and other payables
-821
Bank loan
-4,411
Deferred tax assets
2
Deferred tax Liabilities
0
Total net liabilities
-8
2013:
In June 2013 the Combined Group was expanded by Centrale Eolienne de Bihy Sarl, a company whose
principal activity is producing renewable energy by wind parks. This company contributed
EUR 323 thousand to Group revenues and EUR -19 thousand to Group profit / loss for the year of
expansion. If the group had consolidated Centrale Eolienne de Bihy SARL on January 1, 2013, group
revenues for 2013 would have been higher by EUR 275 thousand and group profit / loss for the year
would have increased by EUR 57 thousand.
In May 2013 the Combined Group was expanded by Solar Toscana 5. Srl & Co. Ternavasso Uno SAS
(‘‘Ternavasso Uno’’) and Solar Toscana 5. Srl & Co. Ternavasso Due SAS (‘‘Ternavasso Due’’),
companies whose principal activity is producing renewable energy by solar parks. Ternavasso Uno
contributed EUR 733 thousand to Group revenues and EUR -49 thousand to Group earnings for the year
of acquisition. Ternavasso Due contributed EUR 1,385 thousand to Group revenues and
EUR -17 thousand to Group profit / loss for the year of expansion. If the group had consolidated CHORUS
Solar Toscana 5. Srl & Co. Ternavasso Uno SAS on January 1, 2013, group revenues for 2013 would
have been higher by EUR 529 thousand and group profit / loss for the year would have increased by
EUR 3 thousand. If the group had consolidated CHORUS Solar Toscana 5. Srl & Co. Ternavasso Due
SAS on January 1, 2013, group revenues for 2013 would have been higher by EUR 912 thousand and
group profit / loss for the year would have increased by EUR 11 thousand.
In March 2013 the Combined Group was expanded by CHORUS Clean Tech GmbH & Co. Solarpark
Eisleben KG, a company whose principal activity is producing renewable energy by solar parks. This
company contributed EUR 870 thousand to Group revenues and EUR 41 thousand to Group profit / loss
for the year of expansion. If the group had consolidated CHORUS CleanTech GmbH & Co. Solarpark
Eisleben KG on January 1, 2013, group revenues for 2013 would have been higher by EUR 87 thousand
and group profit / loss for the year would have increased by EUR 175 thousand.
In July 2013 the Combined Group was expanded by Windpark Pongratzer Kogel GmbH, a company
whose principal activity is producing renewable energy by wind parks. This company contributed
EUR 393 thousand to Group revenues and EUR -247 thousand to Group profit / loss for the year of
expansion. If the group had consolidated Windpark Pongratzer Kogel GmbH on January 1, 2013, group
revenues for 2013 would have been higher by EUR 1,097 thousand and group profit / loss for the year
would have increased by EUR 278 thousand.
In August 2013 the Combined Group was expanded by CHORUS Clean Tech GmbH & Co. Windpark
Ruhlkirchen KG, a company whose principal activity is producing renewable energy by wind parks. This
company contributed EUR 469 thousand to Group revenues and EUR -879 thousand to Group profit /
F-44
loss for the year of expansion. If the group had consolidated CHORUS CleanTech GmbH & Co. Windpark
Ruhlkirchen KG on January 1, 2013, group revenues for 2013 would have been higher by
EUR 1,426 thousand and group profit / loss for the year would have increased by EUR 952 thousand.
In addition in November 2013 the Combined Group founded the service company CHORUS Clean
Energy Assetmanagement GmbH.
Details of the book value of identifiable assets and liabilities:
Centrale Eolienne de Bihy Sarl
Centrale Eolienne de Bihy Sarl
in g(000)
6/30/2013
Property, plant and equipment
5,093
other assets
672
Trade and other payables
-1,449
Bank loan
-4,530
Deferred tax assets
0
Deferred tax Liabilities
-98
Total net liabilities
-312
CHORUS Solar Toscana 5. Srl & Co. Ternavasso Uno SAS
CHORUS Solar Toscana 5. Srl & Co. Ternavasso Uno SAS
in g(000)
5/16/2013
Property, plant and equipment
7,444
other assets
1,581
Trade and other payables
-2,367
Bank loan
-6,436
Deferred tax assets
3
Deferred tax Liabilities
0
Total net assets
225
CHORUS Solar Toscana 5. Srl & Co. Ternavasso Due SAS
CHORUS Solar Toscana 5. Srl & Co. Ternavasso Due SAS
in g(000)
5/16/2013
Property, plant and equipment
13,365
other assets
2,985
Trade and other payables
-4,048
Bank loan
-11,312
Deferred tax assets
0
Deferred tax Liabilities
-98
Total net assets
892
F-45
CHORUS Clean Tech GmbH & Co. Solarpark Eisleben KG
CHORUS CleanTech GmbH & Co. Solarpark Eisleben KG
in g(000)
3/14/2013
Property, plant and equipment
7,874
other assets
273
Trade and other payables
-1,976
Bank loan
-6,551
Deferred tax assets
63
Deferred tax Liabilities
0
Total net liabilities
-317
Windpark Pongratzer Kogel GmbH
Windpark Pongratzer Kogel GmbH
in g(000)
9/13/2013
Property, plant and equipment
12,250
other assets
1,298
Trade and other payables
-5,903
Bank loan
-7,500
Deferred tax assets
0
Deferred tax Liabilities
-94
Total net assets
51
CHORUS Clean Tech GmbH & Co. Windpark Ruhlkirchen KG
CHORUS CleanTech GmbH & Co. Windpark Ruhlkirchen KG
in g(000)
8/30/2013
Property, plant and equipment
17,409
other assets
2,426
Trade and other payables
-5,901
Bank loan
-13,074
Deferred tax assets
173
Deferred tax Liabilities
0
Total net assets
1,033
2012:
In January 2012 the Combined Group was expanded by CHORUS CleanTech GmbH & Co. Solarpark
Neuenhagen KG, a company whose principal activity is producing renewable energy by solar parks. This
company contributed EUR 799 thousand to Group revenues and EUR -49 thousand to Group profit /loss
for the year of expansion. If the group had consolidated CHORUS CleanTech GmbH & Co. Solarpark
Neuenhagen KG on January 1, 2012, group revenues for 2012 would have been lower by
EUR 5 thousand and group profit / loss for the year would have increased by EUR 116 thousand.
In February 2012 the Combined Group was expanded by Collechio Energy di CHORUS Solar 5. Srl & Co.
SAS (‘‘Collechio’’), CHORUS CleanTech GmbH & Co. Solarpark Gut Werchau KG (‘‘Gut Werchau’’) and
CHORUS CleanTech GmbH & Co. Burgheim KG, companies whose principal activity is producing
F-46
renewable energy by solar parks. Collechio contributed EUR 548 thousand to Group revenues and
EUR -283 thousand to Group profit / loss for the year of acquisition. Gut Werchau contributed
EUR 831 thousand to Group revenues and EUR -154 thousand to Group profit / loss for the year of
expansion. Burgheim contributed EUR 390 thousand to Group revenues and EUR -45 thousand to Group
profit / loss for the year of acquisition. If the group had consolidated Collechio Energy di CHORUS Solar 5.
Srl & Co. SAS on January 1, 2012, group revenues for 2012 would have been lower by EUR 63 thousand
and group profit / loss for the year would have increased by EUR 325 thousand. If the group had
consolidated CHORUS CleanTech GmbH & Co. Solarpark Gut Werchau KG on January 1, 2012, group
revenues for 2012 would have been higher by EUR 516 thousand and group profit / loss for the year
would have increased by EUR 436 thousand. If the group had consolidated CHORUS
CleanTech GmbH & Co. Burgheim KG on January 1, 2012, group revenues for 2012 would have been
higher by EUR 24 thousand and group profit / loss for the year would have increased by
EUR 102 thousand.
In May 2012 the Combined Group was expanded by Atlantis Energy di CHORUS Solar Italia Centrale 5.
Srl & Co. SAS (‘‘Atlantis’’), Cagli Solar di CHORUS Solar Italia Centrale 5. Srl & Co. SAS (‘‘Cagli’’),
CHORUS CleanTech GmbH & Co. Solarpark Gardelegen KG (‘‘Gardelegen’’), CHORUS
CleanTech GmbH & Co. Solarpark Bitterfeld KG and CHORUS CleanTech GmbH & Co. Solarpark
Kematinger Wiesen KG, companies whose principal activity is producing renewable energy by solar
parks. Atlantis contributed EUR 387 thousand to Group revenues and EUR -12 thousand to Group profit /
loss for the year of expansion. Cagli contributed EUR 437 thousand to Group revenues and
EUR -79 thousand to Group profit /loss for the year of expansion. Bitterfeld contributed
EUR 1,407 thousand to Group revenues and EUR 85 thousand to Group profit / loss for the year of
expansion. Kematinger contributed EUR 444 thousand to Group revenues and EUR 56 thousand to
Group profit /loss for the year of expansion. Gardelegen contributed EUR 465 thousand to Group
revenues and EUR -14 thousand to Group profit /loss for the year of expansion. If the group had
consolidated Atlantis Energy di CHORUS Solar Italia Centrale 5. Srl & Co. SAS on January 1, 2012,
group revenues for 2012 would have been higher by EUR 53 thousand and group profit / loss for the year
would have increased by EUR 15 thousand. If the group had consolidated Cagli Solar di CHORUS Solar
Italia Centrale 5. Srl & Co. SAS on January 1, 2012, group revenues for 2012 would have been higher by
EUR 48 thousand and group profit / loss for the year would have increased by EUR 132 thousand. If the
group had consolidated CHORUS CleanTech GmbH & Co. Solarpark Gardelegen KG on January 1,
2012, group revenues for 2012 would have been lower by EUR 14 thousand and group profit / loss for the
year would have increased by EUR 122 thousand. If the group had consolidated CHORUS
CleanTech GmbH & Co. Solarpark Bitterfeld KG on January 1, 2012, group revenues for 2012 would
have been lower by EUR 75 thousand and group profit / loss for the year would have increased by
EUR 53 thousand. If the group had consolidated CHORUS CleanTech GmbH & Co. Solarpark
Kematinger Wiesen KG on January 1, 2012, group revenues for 2012 would have been lower by
EUR 21 thousand and group profit / loss for the year would have increased by EUR 18 thousand.
In June 2012 the Combined Group was expanded by Idea Energy SAS di CHORUS Solar Toscana 5.
Srl & Co. SAS (‘‘Idea Energy’’), Le Lame SAS di CHORUS Solar Toscana 5. Srl & Co. SAS (‘‘Le Lame’’),
Rasena Solare SAS di CHORUS Solar Toscana 5. Srl & Co. SAS (‘‘Rasena’’), San Giuliano Energy di
CHORUS Solar Toscana 5. Srl & Co. SAS (‘‘San Giuliano’’) and CHORUS CleanTech GmbH & Co.
Solarpark Scheibenberg KG (‘‘Scheibenberg’’), companies whose principal activity is producing
renewable energy by solar parks. Idea Energy contributed EUR 216 thousand to Group revenues and
EUR -81 thousand to Group profit / loss for the year of expansion. Le Lame contributed
EUR 976 thousand to Group revenues and EUR -289 thousand to Group profit / loss for the year of
expansion. Rasena contributed EUR 276 thousand to Group revenues and EUR -88 thousand to Group
profit / loss for the year of expansion. San Giuliano contributed EUR 197 thousand to Group revenues and
EUR -44 thousand to Group profit / loss for the year of expansion. Scheibenberg contributed
EUR 666 thousand to Group revenues and EUR -196 thousand to Group profit / loss for the year of
expansion. If the group had consolidated Idea Energy SAS di CHORUS Solar Toscana 5. Srl & Co. on
January 1, 2012, group revenues for 2012 would have been higher by EUR 129 thousand and group profit
/ loss for the year would have increased by EUR 130 thousand. If the group had consolidated Le Lame
SAS di CHORUS Solar Toscana 5. Srl & Co. SAS on January 1, 2012, group revenues for 2012 would
have been higher by EUR 485 thousand and group profit / loss for the year would have decreased by
EUR 212 thousand. If the group had consolidated Rasena Solare SAS di CHORUS Solar Toscana 5.
Srl & Co. on January 1, 2012, group revenues for 2012 would have been higher by EUR 98 thousand and
group profit / loss for the year would have increased by EUR 132 thousand. If the group had consolidated
F-47
San Giuliano Energy di CHORUS Solar Toscana 5. Srl & Co. SAS on January 1, 2012, group revenues
for 2012 would have been higher by EUR 139 thousand and group profit / loss for the year would have
increased by EUR 87 thousand. If the group had consolidated CHORUS CleanTech GmbH & Co.
Solarpark Scheibenberg KG on January 1, 2012, group revenues for 2012 would have been higher by
EUR 365 thousand and group profit / loss for the year would have increased by EUR 110 thousand.
In September 2012 the Combined Group was expanded by CHORUS CleanTech GmbH & Co. Solarpark
Greiz KG, a company whose principal activity is producing renewable energy by solar parks. This
company contributed EUR 347 thousand to Group revenues and EUR -181 thousand to Group profit /
loss for the year of expansion. If the group had consolidated CHORUS CleanTech GmbH & Co. Solarpark
Greiz KG on January 1, 2012, group revenues for 2012 would have been higher by EUR 464 thousand
and group profit / loss for the year would have increased by EUR 284 thousand.
In October 2012 the Combined Group was expanded by CHORUS CleanTech GmbH & Co. Solarpark
Ruhland KG, a company whose principal activity is producing renewable energy by solar parks. This
company contributed EUR 139 thousand to Group revenues and EUR -38 thousand to Group profit / loss
for the year of expansion. If the group had consolidated CHORUS CleanTech GmbH & Co. Solarpark
Ruhland KG on January 1, 2012, group revenues for 2012 would have been higher by EUR 374 thousand
and group profit / loss for the year would have increased by EUR 65 thousand.
Details of the fair value of identifiable assets and liabilities:
CHORUS CleanTech GmbH & Co. Solarpark Neuenhagen KG
CHORUS CleanTech GmbH & Co. Solarpark Neuenhagen KG
in g(000)
1/20/2012
Property, plant and equipment
7,369
Other assets
1,004
Trade and other payables
-1,979
Bank loans
-6,419
Deferred tax assets
37
Deferred tax Liabilities
0
Total net assets
12
Collechio Energy di CHORUS Solar 5. Srl & Co. SAS
Collechio Energy di CHORUS Solar 5. Srl & Co. SAS
in g(000)
2/28/2012
Property, plant and equipment
3,676
Other assets
769
Trade and other payables
-4,334
Bank loans
0
Deferred tax assets
8
Deferred tax Liabilities
0
Total net assets
119
F-48
CHORUS CleanTech GmbH & Co. Solarpark Gut Werchau KG
CHORUS CleanTech GmbH & Co. Solarpark Gut Werchau KG
in g(000)
29.03.2012
Property, plant and equipment
13,749
Other assets
591
Trade and other payables
-3,784
Bank loans
-10,661
Deferred tax assets
105
Deferred tax Liabilities
0
Total net assets
0
Atlantis Energy di CHORUS Solar Italia Centrale 5. Srl & Co. SAS
Atlantis Energy di CHORUS Solar Italia Centrale 5. Srl & Co. SAS
in g(000)
15.05.2012
Property, plant and equipment
3,051
Other assets
225
Trade and other payables
-3,194
Bank loans
0
Deferred tax assets
2
Deferred tax Liabilities
0
Total net assets
84
Cagli Solar di CHORUS Solar Italia Centrale 5. Srl & Co. SAS
Cagli Solar di CHORUS Solar Italia Centrale 5. Srl & Co. SAS
in g(000)
15.05.2012
Property, plant and equipment
3,347
Other assets
386
Trade and other payables
-3,672
Bank loans
0
Deferred tax assets
2
Deferred tax Liabilities
0
Total net assets
63
F-49
CHORUS CleanTech GmbH & Co. Solarpark Gardelegen KG
CHORUS CleanTech GmbH & Co. Solarpark Gardelegen KG
in g(000)
24.05.2012
Property, plant and equipment
4,797
Other assets
191
Trade and other payables
-1,138
Bank loans
-3,911
Deferred tax assets
115
Deferred tax Liabilities
0
Total net assets
54
Idea Energy SAS di CHORUS Solar Toscana 5. Srl & Co. SAS
Idea Energy SAS di CHORUS Solar Toscana 5. Srl & Co. SAS
in g(000)
07.06.2012
Property, plant and equipment
2,303
Other assets
548
Trade and other payables
-1,289
Bank loans
-1,450
Deferred tax assets
1
Deferred tax Liabilities
0
Total net assets
113
Le Lame SAS di CHORUS Solar Toscana 5. Srl & Co. SAS
Le Lame SAS di CHORUS Solar Toscana 5. Srl & Co. SAS
in g(000)
07.06.2012
Property, plant and equipment
12,203
other assets
3,083
Trade and other payables
-7,748
Bank loan
-7,600
Deferred tax assets
5
Deferred tax Liabilities
0
Total net liabilities
-57
F-50
Rasena Solare SAS di CHORUS Solar Toscana 5. Srl & Co. SAS
Rasena Solare SAS di CHORUS Solar Toscana 5. Srl & Co. SAS
in g(000)
07.06.2012
Property, plant and equipment
2,622
Other assets
652
Trade and other payables
-1,483
Bank loans
-1,700
Deferred tax assets
1
Deferred tax Liabilities
0
Total net assets
92
San Giuliano Energy di CHORUS Solar Toscana 5. Srl & Co. SAS
San Giuliano Energy di CHORUS Solar Toscana 5. Srl & Co. SAS
in g(000)
07.06.2012
Property, plant and equipment
2,112
Other assets
629
Trade and other payables
-1,124
Bank loans
-1,500
Deferred tax assets
1
Deferred tax Liabilities
0
Total net assets
118
CHORUS CleanTech GmbH & Co. Solarpark Scheibenberg KG
CHORUS CleanTech GmbH & Co. Solarpark Scheibenberg KG
in g(000)
12.06.2012
Property, plant and equipment
9,946
Other assets
916
Trade and other payables
-2,765
Bank loans
-8,100
Deferred tax assets
10
Deferred tax Liabilities
0
Total net assets
7
F-51
CHORUS CleanTech GmbH & Co. Solarpark Greiz KG
CHORUS CleanTech GmbH & Co. Solarpark Greiz KG
in g(000)
05.09.2012
Property, plant and equipment
7,792
Other assets
478
Trade and other payables
-1,864
Bank loans
-6,531
Deferred tax assets
90
Deferred tax Liabilities
0
Total net liabilities
-35
CHORUS CleanTech GmbH & Co. Solarpark Ruhland KG
CHORUS CleanTech GmbH & Co. Solarpark Ruhland KG
in g(000)
10.10.2012
Property, plant and equipment
4,966
Other assets
156
Trade and other payables
-393
Bank loans
-4,275
Deferred tax assets
25
Deferred tax Liabilities
0
Total net assets
479
CHORUS CleanTech GmbH & Co. Solarpark Kematinger Wiesen KG
CHORUS CleanTech GmbH & Co. Solarpark Kematinger Wiesen KG
in g(000)
04.05.2012
Property, plant and equipment
0
Other assets
518
Trade and other payables
-867
Bank loans
0
Deferred tax assets
40
Deferred tax Liabilities
0
Total net assets
-309
F-52
CHORUS CleanTech GmbH & Co. Solarpark Bitterfeld KG
CHORUS CleanTech GmbH & Co. Solarpark Bitterfeld KG
in g(000)
15.05.2012
Property, plant and equipment
12,098
Other assets
763
Trade and other payables
-3,223
Bank loans
-9,696
Deferred tax assets
55
Deferred tax Liabilities
0
Total net assets
-3
CHORUS CleanTech GmbH & Co. Burgheim KG
CHORUS CleanTech GmbH & Co. Burgheim KG
in g(000)
10.02.2012
Property, plant and equipment
7,369
Other assets
640
Trade and other payables
-1,113
Bank loans
-6,419
Deferred tax assets
34
Deferred tax Liabilities
0
Total net assets
6
511
Disclosures regarding the combined statements of profit or loss and other
comprehensive income
6.1 Revenues
Revenues can be broken down as follows:
in g(000)
Electricity Generation
Asset Management & Advisory Services
Revenues
2014
2013
2012
53,964
48,814
42,696
1,019
843
1,052
54,983
49,657
43,748
The electricity revenues mostly comprise of payments under the German Erneuerbare Energien Gesetz
(EEG), the Italian ‘‘Conto Energia’’, or similar regulations in Austria and France, which in general result
from the difference between the paid feed-in tariffs, which amount from 83.9 to 396.8 EUR/MWh for the
various projects of CHORUS, and the market price for electricity.
Service revenues mainly represent fees for conceptional work and marketing services, as well as
managerial services and remuneration of CHORUS GmbH companies in their role as general partner of
funds in the legal form of limited partnerships.
F-53
The analysis of revenues by country is as follows:
in g(000) 2014
Electricity generation
Asset management & advisory services
Total
in g(000) 2013
Electricity generation
Germany
Italy
France
Austria
2014
30,438
21,436
598
1,490
53,964
1,019
-
-
-
1,019
31,459
21,436
598
1,490
54,983
Germany
Italy
France
Austria
2013
25,988
22,110
323
393
48,814
843
-
-
-
843
26,831
22,110
323
393
49,657
Germany
Italy
France
Austria
2012
24,461
18,235
-
-
42,696
1,052
-
-
-
1,052
25,513
18,235
-
-
43,748
Asset management & advisory services
Total
in g(000) 2012
Electricity generation
Asset management & advisory services
Total
6.2 Other income
in g(000)
2014
2013
2012
Income from release of accruals /compensation from
insurance companies and others
341
623
2,904
37
49
55
545
119
141
-
1,844
652
Other
1,009
784
1,454
Other income
1,932
3,417
5,206
2014
2013
2012
1,831
1,803
2,083
318
314
299
2,149
2,117
2,382
Benefits in kind
Recharges
Reimbursement
6.3 Personnel expenses
Personnel expenses recognized in the statement of profit or loss are as follows:
in g(000)
Salaries
Social security costs
Personnel expenses
In 2014, the Group had an average of 28 employees (2013: 27 employees / 2012: 25 employees), all of
whom worked in management and administration at CHORUS GmbH, respectively at CHORUS AG.
Salaries include expenses for employee bonuses and other payments. In 2014 EUR 498 thousand was
spent on director’s fees (2013: EUR 609 thousand / 2012: EUR 801 thousand).
F-54
6.4 Other expenses
These mainly include the following operating expenses:
in g(000)
2014
2013
2012
Material costs / purchased services
143
274
1,069
1,672
1,662
1,307
Insurances / Fees
780
613
484
Land and building occupancy and other operating costs
incl. electricity supply
238
67
73
Renewals & maintenance
3,807
3,537
2,951
Administrative expenses
4,197
4,875
4,338
2,435
1,506
1,157
20
1,475
208
Advertising & gifts / entertainment expenses / travelling and
vehicle expenses
406
269
549
Other
775
56
1,936
12,036
12,828
12,915
Leasing
thereof consulting and service fees
Sales & service, warranty and liability expenses
Other expenses
6.5 Depreciation and amortization/Impairments
Amortization charges on intangible assets (2014: EUR 57 thousand; 2013: EUR 33 thousand / 2012:
EUR 6 thousand) and depreciation charges on property, plant and equipment (2014:
EUR 17,695 thousand; 2013: EUR 21,077 thousand / 2012: EUR 13,667 thousand) are reported under
this line item.
We refer to note 4.8 for further details regarding regular impairment testing.
6.6 Net financial result
This line item can be broken down as follows:
in g(000)
2014
2013
2012
Foreign currency translation gains
237
0
79
0
11
0
Interest income on fixed-term deposits and cash held at
banks
333
190
239
Finance income
570
202
318
Dividend income on available-for-sale financial assets
Interest expense
Financial expense from impairment of non-current financial
assets
Finance expenses
Financial income from valuation of interest rate swaps
(15,516)
(16,465)
(14,225)
(30)
(827)
(1,810)
(15,546)
(17,292)
(16,035)
0
Financial expense from valuation of interest rate swaps
(5,660)
Valuations of interest-rate swaps
(5,660)
Results of financial investments accounted at equity
Net financial result
0
(20,636)
F-55
2,577
(134)
2,443
0
(3,452)
(3,452)
(30)
(30)
(14,677)
(19,199)
6.7 Income taxes
Income taxes can be broken down as follows:
in g(000)
2014
2013
2012
Germany
251
486
293
Italy
112
364
283
47
1
0
410
851
577
Germany
244
534
(438)
Italy
(10)
51
(18)
Other countries
(32)
(1)
0
Total deferred taxes
202
584
Total income tax expenses
612
1,435
Current tax income (-)/expense (+):
Other countries
Total current taxes
Deferred tax income (-)/expense (+):
(456)
121
Income from corporations in Germany is subject to a corporate income tax rate of 15.0% plus solidarity
surcharge of 5.5% and trade tax of 9.8% (combined tax rate of 25.6%) in accordance with the tax laws
applicable in financial years as per January 1, 2012 to December 17, 2014.
For purpose of the combined financial statements only income tax of the combined legal entities is
relevant. Therefore, income tax for which the partners qualify as tax payer but not the combined legal
entity is not reflected in the combined financial statements.
For business partnerships in Germany an average trade tax rate of 12.3% as of January 1, 2012; 12.5%
as per December 31, 2012, 11.4% as per December 31, 2013 and 11.6% as per December 17, 2014 was
applied.
The applied tax rate as per January 1, 2012 to December 17, 2014 for companies in Italy amounts to
30.4% for corporate entities and to 2.9% for business partnerships. The applied tax rate of companies in
Austria amounts to 25.0% from January 1, 2012 to December 17, 2014 and the applied tax rate of
companies in France amounts to 27.8% as per January 1, 2012 and December 31, 2012, 28.2% as per
December 31, 2013 and 28.4% as per December 17, 2014. Deferred tax liabilities and deferred tax assets
are calculated using the weighted tax rate for each country.
No deferred taxes were directly set off against net assets.
F-56
As there is a mix of different legal forms of entities—corporations and business partnerships—in each
country the combined tax rate of German corporations of 25.63% applicable in the financial years 2012 to
2014 is used as the expected tax rate for the tax reconciliation statement. The reconciliation of the
expected income tax expense with respect to earnings before tax to the actual income tax expense can
be broken down as follows:
in g(000)
2014
2013
2012
4,342
2,342
785
25.6%
25.6%
25.6%
1,113
600
201
(843)
(277)
(137)
409
526
514
Additional tax effects resulting from the partnership
structure including supplementary tax balance sheet
63
(129)
(576)
Income Taxes from prior periods
(6)
197
38
(193)
269
-
Non recognition of deferred tax assets on tax loss
carryforwards and use of non recognized tax loss
carryforwards
112
204
-
Permanent differences related to dividend income and
participations
(50)
11
14
7
34
67
612
1,435
121
14.1%
61.3%
15.4%
Earnings before tax
Expected tax rate
Expected income tax expense (+)
Differences in tax rates
Non-deductible expenses
Changes of valuation allowances on deferred tax assets
Other
Actual income tax expense
Effective tax rate
7
Notes to the combined statement of financial position
7.1 Intangible assets
The development of intangible assets can be broken down as follows for financial years 2012 to 2014:
Historical cost
in g(000)
Computer software
January 1,
2014
Additions
Disposals
Reclassification
December 17,
2014
252
114
-
-
366
Amortization and impairment losses
in g(000)
Computer software
Net book values
January 1,
2014
Additions
Disposals
Reclassification
December 17,
2014
79
57
-
-
136
173
57
-
-
230
Historical cost
in g(000)
Computer software
January 1,
2013
Additions
Disposals
Reclassification
December 31,
2013
61
191
-
-
252
Amortization and impairment losses
January 1,
2013
Additions
Disposals
Reclassification
December 31,
2013
Computer software
46
33
-
-
79
Net book values
15
158
-
-
173
in g(000)
F-57
Historical cost
January 1,
2012
Additions
Disposals
Reclassification
December 31,
2012
Computer software
43
18
-
-
61
Prepayments
25
-
25
-
-
in g(000)
Amortization and impairment losses
in g(000)
January 1,
2012
Additions
Disposals
Reclassification
December 31,
2012
40
6
-
-
46
-
-
-
-
-
28
12
25
-
15
Computer software
Prepayments
Net book values
Intangible assets represent computer software in the amount of EUR 230 thousand (2013:
EUR 173 thousand / 2012: EUR 15 thousand). Amortization charges for computer software are
recognized over five years.
7.2 Property, plant and equipment
The development of property, plant and equipment can be broken down as follows for financial years
2012 to 2014:
Historical cost
in g(000)
Land and buildings
Wind and solar parks
Other operating and office
equipment
Payments on account and
assets under construction
in g(000)
Land and buildings
Wind and solar parks
Other operating and office
equipment
Payments on account and
assets under construction
Net book values
Changes to
the combined December 17,
Reclassification
group
2014
January 1,
2014
Additions
1,508
-
-
-
1,508
438,909
4,113
2,292
4,831
450,145
196
17
-
-
213
2,292
-
-2,292
-
-
January 1,
2014
Amortization and impairment losses
Changes to
the combined December 17,
Additions Reclassification
group
2014
76
54
-
-
130
46,782
17,623
-
-
64,406
169
17
-
-
186
-
-
-
-
-
47,027
17,694
-
-
64,722
395,877
-13,564
-
-
387,144
F-58
Historical cost
in g(000)
Additions
408
58
-
1,042
1,508
378,784
89
64
60,099
438,909
190
5
-
1
196
-
-
-
2,292
2,292
Land and buildings
Wind and solar parks
Changes to
the combined December 31,
Disposals
group
2013
January 1,
2013
Other operating and office
equipment
Payments on account and
assets under construction
Amortization and impairment losses
in g(000)
January 1,
2013
Additions
Disposals
Impairment
December 31,
2013
26
50
-
-
76
25,770
16,337
-
4,675
46,782
154
15
-
-
169
-
-
-
-
-
25,950
16,402
-
353,432
-16,251
64
Land and buildings
Wind and solar parks
Other operating and office
equipment
Payments on account and
assets under construction
Net book values
42,352
4,675
395,877
Historical cost
in g(000)
Land and buildings
Wind and solar parks
Other operating and office
equipment
Payments on account and
assets under construction
in g(000)
Land and buildings
Wind and solar parks
Other operating and office
equipment
Payments on account and
assets under construction
Net book values
Changes
to the
combined December 31,
group
2012
January 1,
2012
Additions
Disposals
Reclassification
134
274
-
-
-
408
270,150
8,388
240
2,795
97,675
378,768
142
48
-
-
190
2,795
-
-
-
-
January 1,
2012
-2,795
Amortization and impairment losses
Changes
to the
combined December 31,
Additions Disposals Reclassification
group
2012
0
26
-
-
-
26
12,136
13,618
-
-
-
25,754
130
24
-
-
-
154
-
-
-
-
-
-
12,266
13,668
-
-
-
25,933
260,956
-4,958
240
-
97,675
353,432
As at December 31, 2013, the CHORUS Group reviewed the recoverability of the book values of its
property, plant and equipment at Italian solar parks (impairment test). The trigger for this review was that
in December 2013 the Italian authorities set forth a new law to reduce feed-in tariffs for solar plants. As a
result of this valuation review, an impairment expense for 21 solar parks of EUR 4,675 thousand was
recorded against property, plant and equipment as at December 31, 2013. The discount rate used
F-59
amounts to 5.93%. The aggregated recoverable amount (representing the value in use) amounts to
EUR 97,677 thousand.
The carrying amount of the leased assets (solar plants Italy) shown under ‘‘Wind and solar parks’’
amounts to EUR 34,529 thousand (December 31, 2013: EUR 36,220 thousand/ December 31, 2012:
EUR 39,948 thousand/ January 1, 2012: 31,374). The collateral provided is described in Section 4.9.4.
7.3 Financial investments at equity
Non-current financial assets include the investment of 20% of the voting equity instruments in the
Gnannenweiler Windnetz GmbH & Co. KG of EUR 200 thousand as of December 17, 2014 (2013:
EUR 200 thousand /2012: EUR 230 thousand) and the investment of 3.6% of the voting equity
instruments of CHORUS Infrastructure Fund S.A. SICAV-SIF of EUR 280 thousand as of December 17,
2014 (2013: EUR 0 thousand /2012: EUR 0 thousand), both accounted for at equity:
in g(000)
January 1,
2014
Additions
-
280
-
280
200
-
-
200
200
280
-
480
January 1,
2013
Additions
230
-
(30)
200
230
-
(30)
200
January 1,
2012
Additions
260
-
(30)
230
260
-
(30)
230
Chorus Infrastructure Fund S.A. SICAV-SIF
Gnannenweiler Windnetz GmbH & Co. KG
in g(000)
Gnannenweiler Windnetz GmbH & Co. KG
in g(000)
Gnannenweiler Windnetz GmbH & Co. KG
At equity December 17,
result
2014
At equity December 31,
result
2013
At equity December 31,
result
2012
7.4 Non-current financial assets
Available for sale investments
Non-current financial assets also comprise available-for-sale investments in four investment funds for the
renewable energy sector, in the form of limited partnerships registered in the United Kingdom and in
Cayman Islands: CleanTech Europe I L.P. (‘‘Zouk I’’), London/U.K.; CleanTech Europe II L.P., London/
U.K. (‘‘Zouk II’’); Hudson Clean Energy Partners (Cayman) L.P., Teaneck (‘‘Hudson’’); and European
Renewable Energy Fund I L.P. (‘‘Platina’’) totaling EUR 4,299 thousand as of December 17, 2014 (2013:
EUR 3,508 thousand/ 2012: EUR 3,764 thousand/ January 1, 2012: EUR 4,312 thousand); and sundry
other available-for-sale non-controlling equity investments totaling EUR 75 thousand as of December 17,
2014 (2013: EUR 58 thousand/ 2012: EUR 590 thousand/ January 1, 2012: EUR 622 thousand).
The investments in the four investment funds were impaired and were written down to their respective
recoverable values through the profit and loss account, based on an impairment test at each of the
reporting dates December 17, 2014, December 31, 2013 and December 31, 2012 and January 1, 2012.
Sundry other available-for-sale equity investments totaling EUR 75 thousand as of December 17, 2014
(2013: EUR 58 thousand / 2012: EUR 590 thousand / January 1, 2012: EUR 622 thousand) are measured
at cost because a fair value could not be determined reliably. Sundry other available-for-sale equity
investments comprise investments in unlisted shares that are not traded in an active market. The Group
has no intention to sell these investments as of the respective balance sheet date.
F-60
7.5 Non-current non-financial assets
These receivables amount to EUR 6,614 thousand (2013: EUR 7,002 thousand/ 2012:
EUR 6,937 thousand/ January 1, 2012: EUR 5,408 thousand), and mainly represent long-term
prepayments on leases. They have a remaining maturity of up to 20 years.
7.6 Deferred taxes
Deferred tax assets and liabilities can be attributed to the following items in the statement of financial
position:
in g(000)
December 17, 2014
Deferred Deferred
tax
tax
assets liabilities
December 31, 2013
Deferred Deferred
tax
tax
assets liabilities
December 31, 2012
Deferred Deferred
tax
tax
assets liabilities
January 1, 2012
Deferred Deferred
tax
tax
assets liabilities
Intangible assets
467
0
511
0
524
0
426
0
Property, plant & equipment
762
-3,987
973
-4,030
791
-3,826
275
-2,360
Financial assets
9,087
-8,445
408
-23
648
-29
386
-32
Other assets
1,035
0
1,350
0
1,255
0
1,177
0
32
-1,034
0
-693
0
-679
0
-605
182
-67
13
-64
5
-77
5
-259
Other receivables
Provisions
Other liabilities
Other financial liabilities
Tax loss carryforwards
Deferred taxes before offset
Offset of deferred taxes
Net tax assets and liabilities
29
0
27
0
78
0
198
0
1,744
-242
1,275
-230
1,593
-374
1,074
-397
1,746
0
1,979
0
2,207
0
1,753
0
15,084
-13,775
6,536
-5,040
7,101
-4,985
5,295
-3,653
-12,455
12,455
-4,337
4,337
-4,482
4,482
-3,480
3,480
2,629
-1,320
2,199
-703
2,619
-503
1,815
-173
Deferred tax assets and deferred tax liabilities were offset in accordance with IAS 12 in the combined
statements of financial position.
With the conceptional framework of the combined financial statements the contribution of the holding and
operating companies into CHORUS AG qualifies as subsequent event happening after balance sheet
date December 17, 2014. Therefore, tax loss carryforwards are shown as if they still exist at the historical
dates.
Potential deferred tax assets which were not recorded at December 17, 2014 because they were
considered not to be realizable amounted to EUR 363 thousand in relation to tax loss carryforwards
(December 31, 2013: EUR 204 thousand in relation to tax loss carry forwards and EUR 269 thousand in
relation to temporary differences / December 31, 2012: EUR 0 thousand / January 1, 2012:
EUR 0 thousand).
Besides that, management considers deferred tax assets to be recoverable based on the positive taxable
results expected for the foreseeable future due to sustainable and constant feed-in remuneration of solar
and wind electricity.
No deferred tax liabilities on temporary differences in relation to investments in subsidiaries were
recognized as there are no retained profits from subsidiaries intended for distribution.
7.7 Trade and other receivables
Trade receivables amount to EUR 6,420 thousand (2013: EUR 6,626 thousand/ 2012:
EUR 7,152 thousand/ January 1, 2012: EUR 12,366 thousand). The receivables are unimpaired and due
in the short term. Valuation allowances were not necessary as of the reporting dates. There were no
overdue receivables as of the reporting date.
F-61
7.8 Receivables against shareholders
Receivables against shareholders amount to EUR 0 thousand (2013: EUR 1,518 thousand/ 2012:
EUR 319 thousand/ January 1, 2012: EUR 22 thousand).
7.9 Current financial assets
Current financial assets comprise other current receivables amounting to EUR 1,327 thousand as at
December 17, 2014 (2013: EUR 7,472 thousand/ 2012: EUR 1,726 thousand/ January 1, 2012:
EUR 3,486 thousand) mainly represent deposits and for the year end 2013 loans to third parties.
7.10 Current non-financial assets
Current non-financial assets mainly comprise other tax receivables in the amount of EUR 4,790 thousand
(2013: EUR 2,794 thousand/ 2012: EUR 4,811 thousand/ January 1, 2012: EUR 3,850 thousand).
7.11 Liquid funds
Cash and cash equivalents only comprises available cash and deposits at banks. This includes
EUR 16,091 thousand (2013: EUR 13,431 thousand/ 2012: EUR 9,025 thousand/ January 1, 2012:
EUR 5,470) in debt service and project reserves serving as the lending banks’ collateral for the solar and
wind parks and which can only be used in coordination with the lending banks for the respective company.
The development of cash and cash equivalents, representing cash funds in accordance with IAS 7, is
presented in the statement of cash flows.
For further information on collateral, refer to Section 4.9.4.
7.12 Total net assets
Corresponding to the presentation in the CHORUS Group’s combined financial statements, equity is
presented based on the Group’s structure and represents the ‘‘CHORUS Group’s net assets’’.
The net assets consist of two components:
Net assets attributable to CHORUS GmbH Group and net assets attributable to shareholders of the 74
holding- and operating companies, and at December 17, 2014 to CHORUS AG. CHORUS GmbH Group
reported net assets of EUR 3,151 thousand (2013: EUR 4,191 thousand/ 2012: EUR 3,594 thousand/
January 1, 2012 EUR 4,260 thousand).
Net assets of EUR 58,652 thousand (2013: EUR 57,409 thousand/ 2012: EUR 57,452 thousand/
January 1, 2012: EUR 36,488 thousand) were attributable to the 74 holding- and operating companies.
Capital management
The Group manages its capital with the goal of minimizing the Group’s capital costs while maintaining a
balance between cash flow volatility and financial flexibility. In order to achieve this goal, the ratio of equity
to debt capital, among other things, is monitored. Decisions regarding the financing structure are made by
the Executive Board and are subject to the approval of the Supervisory Board. The equity ratio is defined
as the percentage of equity to total capital. Net debt results from the Group’s external financing liabilities
less cash and any short-term cash investments.
As of December 17, 2014 the equity ratio is 13.8% (2013: 13.3%/ 2012: 14.5% and January 1, 2012:
12.8%).
The Company is not subject to any external minimum capital requirements.
F-62
7.13 Provisions
The development of non-current and current provisions and accruals can be broken down as follows:
Development for the period ended December 17, 2014
Interest effect
in g(000)
January 1,
2014 Compounding
Unwinding
Utilisation
Release
Additions
to the
Group
Additions
December 17,
2014
Asset
retirement
obligations
for solar- and
windparks
2,222
58
882
0
0
64
85
3,311
Total
non-current
2,222
58
882
0
0
64
85
3,311
Other
374
0
0
-348
-26
0
1,328
1,328
Current
374
0
0
-348
-26
0
1,328
1,328
2,596
58
882
-348
-26
64
1,413
4,639
Additions
December 31,
2013
32
2,222
Total
provisions
Development for the period ended December 31, 2013
Interest effect
in g(000)
January 1,
2013 Compounding
Unwinding
Utilisation
Release
Additions
to the
Group
0
0
195
Asset
retirement
obligations
for solar- and
windparks
2,255
46
-306
Total
non-current
2,255
46
-306
0
0
195
32
2,222
Other
316
0
0
-291
-25
0
374
374
Current
316
0
0
-291
-25
0
374
374
2,571
46
-306
-291
-25
195
406
2,596
Additions
December 31,
2012
Total
provisions
Development for the period ended December 31, 2012
Interest effect
in g(000)
January 1,
2012 Compounding
Unwinding
Utilisation
Release
Additions
to the
Group
Asset
retirement
obligations
for solar- and
windparks
1,489
36
154
0
0
573
3
2,255
Total
non-current
1,489
36
154
0
0
573
3
2,255
Other
153
0
0
-146
-7
0
316
316
Current
153
0
0
-146
-7
0
316
316
1,642
36
154
-146
-7
573
319
2,571
Total
provisions
There are uncertainties with respect to the measurement of the amount of dismantling obligations for
solar- and wind parks and relating to the ultimate timing of the dismantling of generation plant upon the
F-63
end of the term of the leasehold. The interest on provisions recorded at present values is compounded
annually. No provisions for dismantling obligations were reversed or utilized in financial year 2014.
7.14 Liabilities to limited partners
The majority of holding and operating companies included in the Group are organized as a limited
partnership (Personenhandelsgesellschaft) under German or Italian law. Its limited partners have a
statutory right of cancellation that cannot be precluded by the partnership agreement and may therefore
require the Company to repay capital contributions, and a related share of profits.
Profits allocated to limited partners (puttable non-controlling interests) in accordance with the provisions
of the bylaws of the limited partnerships are reclassified to liabilities since the limited partners are able to
withdraw the amounts once they have been allocated.
Liabilities to limited partners are recorded at fair values at the balance sheet date. Changes in these fair
values during a reporting period are recorded as finance income or finance expenses.
7.15 Financial liabilities
Non-current financial liabilities:
in g(000)
Bank loans
December 17, December 31, December 31,
2014
2013
2012
January 1,
2012
270,941
284,415
253,478
193,189
27,334
28,574
29,741
23,575
Interest rate swaps with neg. FV
9,608
3,947
6,391
2,938
Non-current financial liabilities
307,883
316,936
289,609
219,702
December 17, December 31, December 31,
2014
2013
2012
January 1,
2012
Leasing liabilities
Current financial liabilities:
in g(000)
Bank loans
Leasing liabilities
Interest rate swaps with neg. FV
Current financial liabilities
20,327
20,324
22,602
14,910
1,240
1,167
1,098
630
-
-
-
-
21,567
21,491
23,700
15,540
All of the Group´s bank loans were secured at December 31, 2014 and previous years. The loans contain
covenants requiring that the respective borrowers (CHORUS operating companies) pay interest and
repayment installments on a timely basis, and that they maintain minimum debt service coverage ratios
(DSCR) ranging from at least 1.05 to 1.55. As of the respective balance sheet dates all covenants are
met.
A future breach of covenant may require the Group to repay the loans earlier than indicated under 9.3.
Under the agreements, the covenants are monitored on a regular basis by the asset management
department and regularly reported to the management to ensure compliance with the agreement.
F-64
Leasing liabilities, which represent finance lease contracts with a duration of 18 years in respect of Italian
solar power generation plant can be broken down as follows:
Lease payments
in g(000)
12/17/2014 12/31/2013 12/31/2012
Present value of payments
1/1/2012 12/17/2014 12/31/2013 12/31/2012
1/1/2012
With a remaining term of
up to one year
3,056
3,056
3,056
1,894
1,240
1,167
1,098
630
With a remaining term of
between one and five
years
12,225
12,225
12,225
9,206
5,797
5,452
5,128
3,842
With a remaining term of
more than five years
29,795
32,851
35,908
28,872
21,537
23,122
24,613
19,732
28,574
29,741
30,838
24,205
28,574
29,741
30,838
24,205
Less financing costs
Present value of
minimum lease
payments
Of which current liabilities
Of which non-current
liabilities
45,077
48,133
51,189
39,972
(16,502)
(18,392)
(20,351)
(15,768)
28,574
29,741
30,838
24,205
1,240
1,167
1,098
630
27,334
28,574
29,741
23,575
The lease contracts contain options, exercisable by the CHORUS Group, to purchase the related
electricity generation plant upon the expiry of the leases, at a price representing one percent of the initial
fair values.
In 2011, the Group sold and leased back 8 solar parks in Italy. In 2012 the Group sold and leased back 3
solar parks in Italy. The lease has been recorded as a finance lease. The remaining lease term beginning
from the respective transaction amounts to 18 years. The Group received proceeds of
EUR 9,579 thousand in connection with the sale in 2012 and EUR 30,774 thousand in connection with the
sale in 2011. The Group accounted for the transaction as a sale and leaseback resulting in the deferral of
EUR 232 thousand in 2012 and of EUR 50 thousand in 2011, which will be amortized to lease expense of
the non-cancellable lease term. The deferred gain is presented in deferred income. Deferred income
related to the sale and leaseback transaction in 2014 amounts to EUR 229 thousand (2013:
EUR 245 thousand / 2012: EUR 269 thousand / 2011: EUR 49 thousand).
Please refer to note 8 for further information regarding interest rate swaps with negative fair value.
7.16 Trade payables
Trade payables results from the ordinary business activities.
7.17 Other current liabilities
Other current liabilities consist mainly of other tax liabilities.
7.18 Deferred income
Deferred income comprises mainly collected payments for which services have not yet been rendered.
F-65
8
Additional disclosures regarding financial instruments
The table below shows the carrying amounts, stated values, and fair values based on the measurement categories of financial instruments as of December 17,
2014, December 31, 2013, and as of December 31, 2012. The carrying amounts of the main financial instruments approximate their fair value.
December 17, 2014
Statement of financial position value in accordance with IAS 39
(All amounts stated in g(000))
note
Measurement
category in
accordance
with IAS 39
Carrying
amount
Amortized
cost
At cost
Fair value
recognized
directly in
equity
Fair Value
Fair value Measurement
recognized
in
through
accordance
profit or loss
with IAS 17
Level 1
Level 2
Level 3
Total
Assets
Non-current financial assets
7.4
AfS
4,374
-
76
4,298
-
-
-
-
4,298
4,298
Trade and other receivables
7.7
LaR
6,420
6,420
-
-
-
-
-
-
-
-
LaR
-
-
-
-
-
-
-
-
-
-
LaR
1,327
1,327
-
-
-
-
-
-
-
-
Cash and cash equivalents
LaR
15,465
15,465
-
-
-
-
-
-
-
-
Restricted cash and cash equivalents
LaR
16,091
16,091
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
Receivables against shareholders
Current financial assets
7.8
F-66
Interest rate swaps with pos. FV
Hft
Liabilities
Liabilities to limited partners
7.13
FLAC
Financial liabilities
4,034
4,034
-
-
-
-
-
-
-
-
329,450
291,268
-
-
9,608
28,574
-
9,608
352,895
362,503
of which Bank loans
FLAC
291,268
291,268
-
-
-
-
-
-
321,109
321,109
of which leasing liabilities
n/a
28,574
-
-
-
-
28,574
-
-
31,786
31,786
of which interest rate swaps with neg.FV
HfT
9,608
-
-
-
9,608
-
-
9,608
-
9,608
FLAC
38,659
38,659
-
-
-
-
-
-
-
-
FLAC
4,771
4,771
-
-
-
-
-
-
-
-
Fair value
recognized
through
profit or loss
Fair Value
-
Liabilities to shareholders
Trade payables
7.15
December 17, 2014
Statement of financial position value in accordance with IAS 39
(All amounts stated in g(000))
note
Measurement
category in
accordance
with IAS 39
Loans and receivables (LAR)
LaR
Financial Assets at Fair Value through P&L
FAVP&L
Available-for-sale financial assets
AfS
Financial liabilities at amortised cost
FLAC
Financial Liability at Fair Value through P&L
FLVP&L
Carrying
amount
Amortized
cost
At cost
Fair value
recognized
directly in
equity
39,303
39,303
-
-
-
-
-
-
-
-
-
4,374
-
76
4,298
-
4,298
338,732
338,732
-
-
-
321,109
9,608
-
-
-
9,608
9,608
December 31, 2013
Statement of financial position value in accordance with IAS 39
(All amounts stated in g(000))
note
Measurement
category in
accordance
with IAS 39
Carrying
amount
Amortized
cost
At cost
Fair value
recognized
directly in
equity
Fair Value
Fair value Measurement
recognized
in
through
accordance
profit or loss
with IAS 17
Level 1
Level 2
Level 3
Total
Assets
Non-current financial assets
7.4
AfS
3,583
-
75
3,508
-
-
-
-
3,508
3,508
Trade and other receivables
7.7
LaR
6,626
6,626
-
-
-
-
-
-
-
-
LaR
1,518
1,518
-
-
-
-
-
-
-
-
LaR
7,472
7,472
-
-
-
-
-
-
-
-
Cash and cash equivalents
LaR
19,455
19,455
-
-
-
-
-
-
-
-
Restricted cash and cash equivalents
LaR
13,431
13,431
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
Receivables against shareholders
Current financial assets
7.8
Interest rate swaps with pos. FV
Hft
Liabilities
F-67
Liabilities to limited partners
7.13
FLAC
Financial liabilities
3,724
3,724
-
-
-
-
-
-
-
-
338,427
304,739
-
-
3,947
29,741
-
3,947
360,137
364,084
of which Bank loans
FLAC
304,739
304,739
-
-
-
-
-
-
324,150
324,150
of which leasing liabilities
n/a
29,741
-
-
-
-
29,741
-
-
35,987
35,987
of which interest rate swaps with neg.FV
HfT
3,947
-
-
-
3,947
-
-
3,947
-
3,947
FLAC
47,272
47,272
-
-
-
-
-
-
-
-
FLAC
6,720
6,720
-
-
-
-
-
-
-
-
Fair value
recognized
through
profit or loss
Fair Value
-
Liabilities to shareholders
Trade payables
7.15
December 31, 2013
Statement of financial position value in accordance with IAS 39
(All amounts stated in g(000))
note
Measurement
category in
accordance
with IAS 39
Loans and receivables (LAR)
LaR
Financial Assets at Fair Value through P&L
FAVP&L
Available-for-sale financial assets
AfS
Financial liabilities at amortised cost
FLAC
Financial Liability at Fair Value through P&L
FLVP&L
Carrying
amount
Amortized
cost
At cost
Fair value
recognized
directly in
equity
48,502
48,502
-
-
-
-
-
-
-
-
-
3,583
0
75
3,508
-
3,508
362,455
362,455
-
-
324,150
3,947
-
-
3,947
3,947
-
December 31, 2012
Statement of financial position value in accordance with IAS 39
(All amounts stated in g(000))
note
Measurement
category in
accordance
with IAS 39
Carrying
amount
Amortized
cost
At cost
Fair value
recognized
directly in
equity
Fair Value
Fair value Measurement
recognized
in
through
accordance
profit or loss
with IAS 17
Level 1
Level 2
Level 3
Total
3,789
Assets
Non-current financial assets
7.4
AfS
3,839
-
50
3,789
-
-
-
-
3,789
Trade and other receivables
7.7
LaR
7,152
7,152
-
-
-
-
-
-
-
-
LaR
319
319
-
-
-
-
-
-
-
Receivables against shareholders
Current financial assets
LaR
1,726
1,726
-
-
-
-
-
-
-
-
Cash and cash equivalents
7.8
LaR
30,204
30,204
-
-
-
-
-
-
-
-
Restricted cash and cash equivalents
LaR
9,025
9,025
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
Interest rate swaps with pos. FV
Hft
Liabilities
F-68
Liabilities to limited partners
7.13
FLAC
Financial liabilities
3,552
3,552
-
-
-
-
-
-
-
-
313,309
276,080
-
-
6,391
30,838
-
6,391
348,070
354,460
of which Bank loans
FLAC
276,080
276,080
-
-
-
-
-
-
308,116
308,116
of which leasing liabilities
n/a
30,838
-
-
-
-
30,838
-
-
39,954
39,954
of which interest rate swaps with neg.FV
HfT
6,391
-
-
-
6,391
-
-
6,391
-
6,391
FLAC
29,698
29,698
-
-
-
-
-
-
-
-
FLAC
7,198
7,198
-
-
-
-
-
-
-
-
Fair value
recognized
through
profit or loss
Fair Value
-
Liabilities to shareholders
Trade payables
7.15
December 31, 2012
Statement of financial position value in accordance with IAS 39
(All amounts stated in g(000))
note
Measurement
category in
accordance
with IAS 39
Loans and receivables (LAR)
LaR
Financial Assets at Fair Value through P&L
FAVP&L
Available-for-sale financial assets
AfS
Financial liabilities at amortised cost
FLAC
Financial Liability at Fair Value through P&L
FLVP&L
Carrying
amount
Amortized
cost
At cost
Fair value
recognized
directly in
equity
48,426
48,426
-
-
-
-
-
-
-
-
-
3,839
-
50
3,789
-
3,789
316,528
316,528
-
-
-
308,116
6,391
-
-
-
6,391
6,391
January 1, 2012
Statement of financial position value in accordance with IAS 39
(All amounts stated in g(000))
note
Measurement
category in
accordance
with IAS 39
Carrying
amount
Amortized
cost
At cost
Fair value
recognized
directly in
equity
Fair Value
Fair value Measurement
recognized
in
through
accordance
profit or loss
with IAS 17
Level 1
Level 2
Level 3
Total
4,310
Assets
Non-current financial assets
7.4
AfS
4,360
-
50
4,310
-
-
-
-
4,310
Trade and other receivables
7.7
LaR
12,366
12,366
-
-
-
-
-
-
-
-
LaR
22
22
-
-
-
-
-
-
-
Receivables against shareholders
Current financial assets
LaR
3,486
3,486
-
-
-
-
-
-
-
-
Cash and cash equivalents
7.8
LaR
18,010
18,010
-
-
-
-
-
-
-
-
Restricted cash and cash equivalents
LaR
5,470
5,470
-
-
-
-
-
-
-
Interest rate swaps with pos. FV
Hft
-
-
Liabilities
F-69
Liabilities to limited partners
7.13
FLAC
Financial liabilities
1,580
1,580
-
-
-
-
-
-
-
-
235,242
208,099
-
-
2,938
24,205
-
2,938
218,162
221,100
of which Bank loans
FLAC
208,099
208,099
-
-
-
-
-
-
191,597
191,597
of which leasing liabilities
n/a
24,205
-
-
-
-
24,205
-
-
26,565
26,565
of which interest rate swaps with neg.FV
HfT
2,938
-
-
-
2,938
-
-
2,938
-
2,938
FLAC
21,286
21,286
-
-
-
-
-
-
-
-
FLAC
13,162
13,162
-
-
-
-
-
-
-
-
Fair value
recognized
through
profit or loss
Fair Value
-
Liabilities to shareholders
Trade payables
7.15
January 1, 2012
Statement of financial position value in accordance with IAS 39
(All amounts stated in g(000))
note
Measurement
category in
accordance
with IAS 39
Loans and receivables (LAR)
LaR
Financial Assets at Fair Value through P&L
FAVP&L
Available-for-sale financial assets
AfS
Financial liabilities at amortised cost
FLAC
Financial Liability at Fair Value through P&L
FLVP&L
Carrying
amount
Amortized
cost
At cost
Fair value
recognized
directly in
equity
39,354
39,354
-
-
-
-
-
-
-
-
-
4,360
-
50
4,310
-
4,3

Download Report