pdf (2.5 MB) - METRO Group

METRO GROUP : ANNUAL REPORT 2010 : BUSINESS
→ GROUP MANAGEMENT REPORT : 9. NOTES PURSUANT TO § 315 SECTION 4 OF ThE GERMAN COMMERCIAL COdE
ANd EXPL ANATORy REPORT OF ThE MANAGEMENT BOARd
allow the Company to sell its own ordinary shares by exclusion
of subscription rights other than via the exchange or an
offer to shareholders against cash payment. This is supposed
to enable the Company, in particular, to issue ordinary
shares at short notice. The Annual General Meeting of 5 May
2010 authorised the Management Board, with the consent of
the Supervisory Board, to issue warrant or convertible
bonds made out to the bearer. Rather than implementing a
capital increase, it may prove sensible to fully or partly serve
the resulting subscription rights with treasury ordinary
shares. Company shares acquired based on the authorisation
granted in letter a) as collateral for liabilities under the
performance share plan 2009 may be sold exclusively via the
stock exchange.
Authorisation to issue warrant and/or convertible bonds
The Annual General Meeting on 13 May 2009 resolved to annul
→ the contingent increase in share capital by up to
€127,825,000, divided into up to 50,000,000 ordinary
bearer shares based on the authorisation of the Management
Board, with the consent of the Supervisory Board,
to issue warrant or convertible bonds made out to the
bearerwithanaggregateparvalueofupto€1,500,000,000
prior to 12 May 2014, in one or several tranches (authorisation
I), as well as
→ the second contingent increase in share capital by up to
€127,825,000, divided into up to 50,000,000 ordinary
bearer shares based on a second authorisation of the
Management Board, with the consent of the Supervisory
Board, to issue warrant or convertible bonds made out
to the bearer with an aggregate par value of up to
€1,500,000,000 prior to 12 May 2014 (authorisation II),
resolved by the Annual General Meeting on 5 May 2010.
Pursuant to the stipulations of the Act Implementing the
Shareholder Rights directive and the jurisdiction of the Federal
Court of Justice of 18 May 2009, the detailed stipulations
for the determination of the warrant or conversion price in
the previous authorisations I and II had become redundant.
Furthermore, the Annual General Meeting of 5 May 2010
authorised the Management Board, with the consent of the
Supervisory Board, to issue warrant or convertible bonds
made out to the bearer (in aggregate, “bonds”) with an
aggregate par value of up to €1,500,000,000 prior to 4 May
2015, at once or in several stages, and to grant the holders
of warrant or convertible bonds warrant or conversion rights
→ p. 123
or impose warrant or conversion obligations upon them for
ordinary bearer shares in the Company representing up to
€127,825,000 of the share capital in accordance with the
terms of the warrant or convertible bonds.
The bonds may also be issued by an affiliate of METRO AG in
terms of § 18 of the German Stock Corporation Act in which
METRO AG holds at least 90 percent of shares, directly or
indirectly. In that case, the Management Board is authorised,
with the consent of the Supervisory Board, to assume
a guarantee for those bonds on behalf of the Company and
grant their holders warrant or conversion rights to ordinary
bearer shares in METRO AG or impose warrant or conversion
obligations upon them.
Shareholders will be granted statutory subscription rights
in that the bonds will be acquired by a bank or syndicate of
banks contingent upon agreement to offer the bonds to the
shareholders. If bonds are issued by an affiliate of METRO AG
in terms of § 18 of the German Stock Corporation Act in
which METRO AG holds at least 90 percent of shares, directly
or indirectly, the Company must ensure that statutory subscription
rights are granted to the shareholders of METRO AG
in accordance with the above sentence.
however, the Management Board is authorised, with the
consent of the Supervisory Board, to exclude shareholder
subscription rights for residual amounts arising from proportional
subscriptions to the extent necessary to grant or
impose warrant or conversion rights or obligations with
respect to the holders of existing warrant or conversion
rights or obligations in the amount to which they would be
entitled after exercise of the warrant or conversion right or
fulfilment of the warrant or conversion obligation.
The Management Board is also authorised, with the consent
of the Supervisory Board, to entirely exclude shareholder
subscription rights to bonds issued in exchange for cash
payment carrying warrant or conversion rights or obligations
insofar as the Management Board concludes, after
careful review, that the issue price of the bonds is not substantially
lower than the hypothetical market value ascertained
using recognised mathematical methods. This
authorisation to exclude subscription rights applies for
bonds which are issued with warrant or conversion rights or
obligations to ordinary shares comprising no more than
10 percent of the share capital both at the time the authorisa-