ONE ROOF

78 Annual Report 2009
Shareholders’ statutory subscription rights to such
shares are barred pursuant to Sections 71 (1) 8 and 186
(3) and (4) of the German Stock Corporations Act
(AktG) to the extent that the shares are used in exercise
of the authorizations set out above.
The Executive Board is also authorized, subject to Supe r-
visory Board approval, to retire repurchased shares
without a further resolution of the General Shareholders’
Meeting being required for the share retirement itself or
its execution.
The conditions governing awards of subscription rights
and the sale, transfer and retirement of treasury stock
are set forth in detail in the General Shareholders’
Meeting resolution.
The long-term global revolving guarantee facility signed
with a syndicate of international banks on October 24,
2007 was modified by HOCHTIEF Aktiengesellschaft in
2009 so that it now has at its disposal a EUR 1.5 billion
revolving guarantee facility and a EUR 400 million cash
facility. An earlier revolving credit facility for a total of
EUR 600 million and an earlier revolving guarantee facility
for a total of EUR 291.5 million remain in place. These
facilities have substantively identical change-of-control
provisions. Lenders may each withdraw from their credit
exposure subject to satisfaction of an agreed condition
precedent if negotiations with the borrower to continue
the facility have failed, such negotiations having given
consideration to the credit standing of the company
taking control, the risk of any change in corporate strategy
and the risk of the lenders being restricted in any
way in provision of the facilities. The condition precedent
is satisfied if a party, or group of parties acting in
concert, secures control of the borrower within the
meaning of Section 29 (2) of the German Securities
Acquisition and Takeover Act (WpÜG). Lenders may
give notice of termination of their credit exposure within
70 days of it becoming known to HOCHTIEF Aktiengesellschaft
that the condition precedent has been satisfied,
subject to a minimum of ten days to consider the
options available.
HOCHTIEF Aktiengesellschaft signed a EUR 65 million
global credit facility with a German bank on October
29, 2009, and in December 2009 extended the term of
a further, EUR 130 million facility dating from August
2/9, 2005. These two facilities have substantively identical
change-of-control provisions, under which in the
event of a change of control the bank can terminate the
credit facility for cause if it deems this appropriate in
consideration of the acquirer’s creditworthiness, the risk
of changes in corporate strategy and possible maximum
credit limits. A change of control is defined in this
context as a party, or group of parties acting in concert,
either acquiring a majority of shares or voting
rights in the borrower or otherwise securing control of
the borrower, for example by way of a control agreement;
voting rights are attributed for this purpose in accordance
with Section 30 of the German Securities Acquisition
and Takeover Act (WpÜG).
HOCHTIEF Aktiengesellschaft signed two promissory
note loan agreements (Schuldscheindarlehen) for EUR
50 million and EUR 200 million with a German bank on
July 4, 2008. It also signed four promissory note loan
agreements for a total of EUR 300 million with differing
durations and interest rates on May 25, 2009. All of
these agreements contain a substantively identical provision
under which in the event of a change in control,
HOCHTIEF Aktiengesellschaft must repay the loan
early unless it and the lender reach agreement on the
loan’s continuation within 60 days of announcement of
the change of control and the lender does not demand
early repayment within ten days of the 60-day period
expiring. A change of control is defined in this context
as a party, or group of parties acting in concert within
the meaning of Section 30 (2) of the German Securities
Acquisition and Takeover Act (WpÜG), securing control
of HOCHTIEF Aktiengesellschaft within the meaning of
Section 29 (2), WpÜG.
On October 23, 2007, HOCHTIEF Aktiengesellschaft
signed a general counter indemnity with four US surety
companies to secure a USD 5 billion bonding line provided
by the surety companies. The general counter indemnity
contains a change-of-control provision giving
them the right, if an agreed condition precedent is satisfied,
to require HOCHTIEF Aktiengesellschaft to submit
up to USD 500 million in cash by way of security.
The condition precedent is satisfied if a party, or group