Category: Austria

White & Case and Wolf Theiss have advised joint lead managers Barclays, MUFG, UniCredit Bank Austria, BNP Paribas, Credit Agricole CIB, J.P. Morgan, Societe Generale Corporate & Investment Banking, Bayern LB, DZ Bank AG, Helaba and SMBC Nikko on OMV Aktiengesellschaft’s EUR 1.25 billion hybrid bonds issue. Weber & Co advised the issuer on the deal.

OMV is an Austrian multinational integrated oil and gas company that is headquartered in Vienna, Austria.

According to White & Case, “the bonds are issued in two tranches, in each case with an initial fixed interest rate and subsequent adjustment of the interest rate. With a principal amount of EUR 750 million, the first tranche has an initial fixed coupon of 2.5%. With a principal amount of EUR 500 million, the second tranche has an initial fixed coupon of 2.875%. The bonds will be admitted to trading in the Luxembourg Stock Exchange and the Vienna Stock Exchange.”

White & Case’s Frankfurt-based team consisted of Partners Karsten Wockener and Rebecca Emory, Local Partner Cristina Freudenberger, Counsel Alexander Born, and Associates Peter Becker, Florian Fraunhofer, Daniel Gillenkirch, and Daniel Sander.

Wolf Theiss’s team was led by Partner Claus Schneider.

Weber & Co’s team was led by Partner Christoph Moser, and included Associates Angelika Fischer, Yvonne Gutsohn, and Sebastian Cibulka.

The issuance marks OMV’s third this year that White & Case and Weber & Co. have assisted with, following a two-tranch EUR 1.5 billion issuance on June 16 (as reported by CEE Legal Matters on June 24, 2020) and a three-tranch EUR 1.75 billion issuance in April (as reported on April 9, 2020).

PHH has advised Bondi Consult on the sale of the “service hub” part of the TwentyOne commercial project in Vienna’s Floridsdorf district to InterXion, a provider of cloud and carrier-neutral data center services. Gassauer-Fleissner Rechtsanwalte advised InterXion on the deal.

According to TwentyOne’s website, the commercial project “is situated in Vienna’s 21st district at Siemensstrasse 87-89 and 88 and has a total area of approximately 50,000 square meters. It is divided into six ‘hubs’ — including Innovation, Service, Central, Student, Office, and Hotel.”

Bondi Consult provides real estate consulting, development, investment, and work-outs. The “service hub” will serve as the base of InterXion’s new data center.

PHH’s team included Partners Rainer Kaspar and Julia Fritz and Senior Associates Philip Rosenauer and Michael Kutis.

Gassauer-Fleissner’s team included Partner Klaus Fischer and Associate Leopold Gnesda.

Herbst Kinsky has advised Presono GmbH on a media-for-equity deal with Seven Ventures Austria.

Presono is a Linz-based startup which offers presentation software solutions. In return for an undisclosed stake in the startup, Seven Ventures shall provide media presence with a value of up to EUR 2 million.

Herbst Kinsky’s team consisted of Partner Florian Steinhart and Attorney Felix Kernbichler.

Herbst Kinsky did not reply to our inquiries. 

Former Dentons Partner Marcell Clark has joined CMS in Vienna.

According to CMS, Clark “has over 25 years of experience in cross-border financing and real estate transactions. He has worked for Jones Day Reavis & Pogue and at TIAA – one of the largest American pension funds – in New York and he is not new to the CEE/SEE region as he has worked for Dentons in both Budapest and Bratislava. In the course of his career, he advised numerous renowned monetary institutions and banks on corporate loans, energy sector loans, property acquisitions, joint ventures, real estate loan restructurings as well as mezzanine financing. Furthermore, he is a member of the New York bar and qualified as a solicitor (Senior Courts of England and Wales).”

“I am delighted to join the Vienna office of CMS,” commented Clark. “For me, the firm’s office in Vienna is a perfect platform: it brings together an excellent reputation, an international network, and a highly qualified team of legal professionals. By physically being here in Vienna, I will be able to provide legal services and help our clients in person whenever the need arises.”

“Marcell represents the ideal addition to our team – his experience and qualifications in English law will benefit our clients greatly,” said CMS Partner Guenther Hanslik. “We are very proud to have won such a distinguished expert for Austria and CEE.”

Former Weber & Co Partner Christoph Moser will re-join Schoenherr at the beginning of 2021.

Moser, who will return as an equity partner, worked at Schoenherr from 2010 to 2012, before moving to Baker & McKenzie. In 2014 he moved to Weber & Co. He obtained his Master’s degree at the Johannes Kepler University in Linz in 2004.

“Schoenherr is well known for, among others, its key capital markets team in Austria,” declared Schoenherr Partner Ursula Rath. “With Christoph Moser and his expertise, we can expand our competence in this segment of the market. I am very much looking forward to working with him.”

“With Christoph Moser, we add an experienced capital markets law expert with a strong market presence to our firm,” added Schoenherr Managing Partner Michael Lagler. “A good part of his initial legal career began at Schoenherr, and I am particularly pleased that he is returning. With this new addition to our practice, we are also initiating a generation shift in Austrian capital markets law. Despite their comparatively young age, both Ursula Rath and Christoph Moser are renowned experts in their fields. Combining their expertise at Schoenherr will strengthen our market position tremendously.”

“Working at Schoenherr was an important starting point in my legal career,” said Moser. “Since then I have been able to successfully position myself as a specialist in equity capital markets and debt capital markets. I look forward to being part of this outstanding law firm again and further expanding the capital markets practice together with Ursula Rath and the team.”

News of Moser’s move follows shortly after the news that former Haslinger/Nagele Partner Michael Magerl will be joining Schoenherr in Linz as office Managing Partner on September 1, 2020 (as reported by CEE Legal Matters on August 17, 2020).

Editorial Note: This article has been updated to correct details related to Moser’s move to Schoenherr.

Rautner Rechtsanwalte has advised Windkraft Simonsfeld on a EUR 63 million financing deal with the European Investment Bank and Erste Bank.

According to Rautner Rechtsanwalte, “14 new wind turbines at Poysdorf-Wilfersdorf and Prinzendorf in Lower Austria will be financed by the loan. The majority of the financing, worth EUR 40.9 million, will be provided to Windkraft Simonsfeld directly by the European Investment Bank. The remaining loan amount of EUR 22.1 million will be provided by Erste Bank and refinanced by the EIB. Windkraft Simonsfeld will invest EUR 21 million of its own resources in the wind farms. The 14 new systems are expected to generate more than 158 million kilowatt hours of electricity per year, enough electricity to power 39,500 households in Austria.”

Rautner Rechtsanwalte’s team consisted of Partner Uwe Rautner and Associate Rene Semmelweis.

Rautner Rechtsanwalte did not reply to further inquiries.

The COVID-19 pandemic has revealed the vulnerability of supply chains worldwide, creating an increased awareness of the need to protect critical domestic infrastructure. On April 3, 2020, the Austrian Parliament adopted a motion encouraging the Minister for Digital and Economic Affairs to put forward (“as soon as possible”) a government bill designed to protect companies in key industries from takeovers by third country entities. Eight weeks later the resulting bill was presented to the public.

Background

In Austria, control of foreign direct investments is regulated by Section 25a of the Foreign Trade Act – FTA (“Aussenwirtschaftsgesetz”). The low numbers of applications under Section 25a FTA show that under the current regime only a few foreign investments satisfied the criteria necessitating formal approval: As of June 17, 2019, only eight applications under Section 25a FTA had been submitted. Significant transactions, such as the purchase of more than 25% of Telekom Austria Group by a Mexican ultimate beneficial owner, which acted through an SPV, were structured to avoid triggering the obligation to apply for approval under Section 25a FTA.

The former OVP-FPO government intended to introduce significant changes to the FTA in 2019 to reflect EU Regulation 2019/452, which established a framework for screening foreign direct investments. The “Ibiza-Scandal” and the subsequent early election of a new government, however, delayed these plans. The COVID 19 pandemic has caused the pressure for a swift revision of the foreign investment regime to rise again.

The Current Foreign Investment Regime in Austria

Official approval is generally required under the FTA for investments with the following features: (i) The target company has its corporate seat in Austria; (ii) The target company is (simply put) a limited liability company, a stock corporation, a Societas Europaea (SE), or a partnership (note: asset deals also require official approval under the FTA); (iii) The investor is incorporated in or is a citizen of a non-EEA country (and Switzerland); (iv) The target company is active in a sector which concerns security and public order, including (but not limited to) defense goods, security services, energy supply, water supply, telecommunications, education, and healthcare; and (v) The acquisition involves more than 25% of shares/voting rights or a controlling influence of the target company.

The approval by the Minister for Digital and Economic Affairs is required for such investments before the transactions can be executed. If such approval is not obtained, the purchase agreement is deemed void and the transaction will be reversed.

What Will the Future Hold?

The Austrian government has recently published a draft of a new Investment Control Act (ICA), to replace Section 25a of the FTA. The new draft, which is currently in the review phase, provides for (among other things) the following relevant changes: (i) Thresholds: The 25% threshold remains at this level for most sectors, but was lowered to 10% where critical energy infrastructure, water, critical information technology (5G), R&D in the pharmaceutical/medical devices sector, or certain defense-related sectors are involved. (ii) Application obligation: Although at the moment only the purchaser is required to file an application under 25a FTA, in the ICA draft the obligation to file an application applies to the purchasing entity as well as the target company; (iii) Expansion of scope: Although Section 25a FTA currently applies to entities operating within sectors relevant for security and public order, the draft stipulates that investments will be subject to the FTA if they are likely to affect security or public order, thus extending the scope of application significantly (in addition, the assessment of whether security or public order are affected requires the consideration of an extensive and non-exclusive list of relevant sectors); and (iv) Committee: Although the current approval process lies within the Federal Ministry for Digital and Economic Affairs, the ICA widens the decision-making process by involving a committee of representatives of several ministries, including Digital and Economic Affairs; Finance; Climate Protection, Environment, Energy, Mobility, Innovation and Technology; European and International Affairs and Social Affairs, Health, Care, and Consumer Protection. The committee can prescribe requirements that need to be fulfilled to receive approval.

Even though the details of the new ICA are not yet certain the following can be said: The formerly rarely applicable obligation to file for approval under Section 25a FTA will become a standard check box that needs to be ticked off in many transactions where non-EU/EEA purchasers are involved.

By Johannes Trenkwalder, Partner, and David Kohl and Marco Selenic, Associates, CMS Vienna

This Article was originally published in Issue 7.6 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

DLA Piper has advised FFF Real Estate S a.r.l., a subsidiary of Luxembourg’s FFF Fund I SCSp SICAV-RAIF fund, on financing for the acquisition and further development of a residential project in Hesperange in Luxembourg.

According to DLA Piper, ”the transaction also involved the refinancing of the existing debt and envisaged complex structuring.”

DLA Piper’s team included Vienna-based Partner Christoph Mager and Senior Associate Ekaterina Larens while the firm’s team in Luxembourg included Partners Xavier Guzman and Olivier Reisch and Associates Joris Reinert, Mateusz Glowacki, Natalie Goormans, and Michele Buechler.

The FFF Fund I transaction team was led by General Counsel Stanislav Panchenko.

DLA Piper was unable to provide further details about the deal.

Baker McKenzie has advised Amplifier Game Invest on the acquisition of games developer Rare Earth Games and its team. The Freimueller, Obereder, Pilz firm advised Rare Earth Games founders Michael Borras, Peter Ehardt, and Helmut Hutterer.

According to Baker McKenzie, “the purchase price amounts to EUR 300,000, which will, however, rise to up to two million euros, depending on whether agreed sales targets will be reached, which will be paid out in the form of shares.”

Amplifier Game Invest is a member company of the Swedish Embracer group. According to Baker McKenzie, Vienna-based development studio Rare Earth Games will “develop multi-player adventure games for PCs, consoles, and cloud services.”

Baker McKenzie’s team was led by Partner Eva-Maria Segur-Cabanac and included Partner Lukas Feiler, Counsel Robert Wippel, Associates Armin Assadi and Andrea Polzer, and Junior Associates Teresa Stuettler and Silvia Grohmann.

The team from Freimueller, Obereder, Pilz included Senior Partner Michael Pilz and Associate Hannah Kercz.

Former Haslinger/Nagele Partner Michael Magerl and Associate Bettina Kranawetter have joined Schoenherr, and on September 1, 2020 Magerl will become Managing Partner of the firm’s office in Linz.

Michael Magerl studied law at the University of Vienna completed his legal clerkship in the judicial district of the Higher Regional Court Vienna. He began his career in private practice in 2004, and in 2006 he obtained a Master’s degree in Commercial Law and International Trade at the Durham University. He joined Haslinger/Nagele in 2007.

Schoenherr’s Managing Partner Michael Lagler commented that, “with Michael Magerl we welcome an experienced partner and excellent manager for our recently opened office in Linz. Michael is known for his professional expertise and many years of experience, including in the areas of transaction, banking and restructuring law, far beyond the borders of Upper Austria. He is a significant asset to Schoenherr and especially the Linz office.”

“It is a unique opportunity to be able to drive forward the expansion of the relatively new Linz office of such a renowned, international law firm,” said Magerl. “Our strengthened team in Linz will further expand its position in the Upper Austrian market.”

Editor’s note: Image credit: Haslinger / Nagele