AEG 21604 G Bedienungsanleitung PDF herunterladen (Seite 79)

The Issuer may be required to pay a share and cash earn-out of up to 1,600,000 shares and EUR 16

million.

Under the terms of the share purchase agreement with Ripplewood by which the Issuer acquired the AEG

PS Group, a share and cash earn-out was agreed under which Ripplewood and other selling parties were

entitled to aggregate cash payments of up to EUR 25 million and a share award of up to 2,500,000 shares.

For this purpose 2,500,000 shares were transferred to JP Morgan Bank as escrow agent. The earn-out

provisions provide for payment to be made on a sliding scale based on the meeting of certain adjusted

EBITDA targets for the AEG PS Group with respect to fiscal years 2009, 2010 and 2011, known as the

earn-out period. In 2009, the EBITDA target was missed and no earn out was paid. However, if the ad-

justed EBITDA (as defined in the share purchase agreement) in respect of fiscal year 2010 is equal to or

greater than 90 % of EUR 124.8 million, the Issuer will pay Ripplewood and the other selling parties up

to EUR 8.5 million and 850,000 shares. For 2011, 750,000 shares and up to EUR 7.5 million in cash

could be payable if the adjusted EBITDA (as defined in the share purchase agreement) in respect of fiscal

year 2011 is equal to or greater than 90 % of EUR 139.0 million. AEG PS Group has not made a provi-

sion in its financial statements for potential future share-based or cash earn-out obligations. In addition, in

the event that the Issuer undergoes a change of control during the earn-out period, it will be required to

pay to Ripplewood and the other selling parties all of the outstanding earn-out payments that could be-

come due and payable as of the date of such change of control, unless Ripplewood's representative con-

sents to such change of control. A change of control is generally defined to occur in the event of a merger,

consolidation, sale, disposition or other transfer of all or substantially all of the outstanding equity inter-

ests in the Issuer or the entities in the AEG PS Group. This could prevent AEG PS Group from effecting a

transaction that would qualify as a change of control and that it would otherwise deem desirable in order

to avoid the earn-out obligations arising from such transaction. As a result of the aforementioned, the Is-

suer could either become obliged to make earn-out payments in cash and shares of up to 1,600,000 shares

and EUR 16 million or be prevented from entering into certain transactions. Should any of the above risks

materialise, this could have a material adverse effect on AEG PS Group's business, results of operations

and financial condition.

The Issuer is a holding company and dependent on its operating subsidiaries.

The Issuer is a holding company and has no relevant business or operational activities other than the ad-

ministration and financing of its direct and indirect subsidiaries. It is therefore dependent on proceeds

from its operating entities and thus exposed to risks and uncertainties similar to those faced by AEG PS

Group.

Risks Related to the Guarantor

The Guarantor is an indirect subsidiary of the Issuer and thus dependent on the Issuer. In addition,

the Guarantor has itself no significant operational activities and is itself a holding company and, there-

fore, dependent on its operating subsidiaries.

The Guarantor is an indirect subsidiary of the Issuer, which is holding all shares in the Guarantor through

3W Power Holdings B.V., The Netherlands, and not an independent third party. The Guarantors is thus

dependent on the Issuer, which can influence it, including its financial position. In addition, the Guarantor

is itself a holding company and has no significant own business or operational activities other than the

administration and financing of its direct and indirect subsidiaries and AEG PS Group’s Dutch operating

activities. It is therefore dependent on proceeds from its operating entities and thus exposed to risks and

uncertainties similar to those faced by AEG PS Group. In cases where a holder of a proportionate co-

ownership or other beneficial interest or right in the Notes (“Noteholder”) faces the situation that it can-

not successfully enforce its claims under the Notes against the Issuer it may face the same situation with

regard to the enforcement of claims under the Guarantee against the Guarantor.

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