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METRO GROUP : ANNUAL REPORT 2011 : BUSINESS
→ GROUP MANAGEMENT REPORT : 9. NOTEs PURsUANT TO § 315 sEcTiON 4 Of ThE GERMAN cOMMERciAl cOdE
ANd ExPlANATORy REPORT Of ThE MANAGEMENT BOARd
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 to as shareholders
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 authorisation takes effect or – if this value is
lower – at the time the authorisation is exercised. The following
count towards the aforementioned 10 percent limit:
→ p. 151
→ new ordinary shares issued from authorised capital
excluding subscription rights according to § 186 section 3
sentence 4 of the German stock Corporation act during
the term of the authorisation prior to the issuance of
bonds with warrant or conversion rights or obligations
without subscription rights according to § 186 section 3
sentence 4 of the German stock Corporation act,
→ and ordinary shares acquired based on the authorisation of
the annual General Meeting according to § 71 section 1
no. 8 of the German stock Corporation act and sold
according to §§ 71 section 1 no. 8 sentence 5, 186 section
3 sentence 4 of the German stock Corporation act
during the term of such authorisation, prior to the issuance
of bonds with warrant or conversion rights or obligations
excluding subscription rights according to § 186 section 3
sentence 4 of the German stock Corporation act.
If bonds carrying warrant or conversion rights or obligations
are issued, the warrant or conversion price is determined
based on the rules in § 4 section 8 of MeTRo aG’s articles of
association.
In the case of bonds carrying warrant or conversion rights or
obligations, the warrant or conversion price may be adjusted
after closer determination in order to preserve the value of
such rights or obligations in the event their economic value is
diluted, unless such an adjustment is also provided for by
law. The terms of the bonds may also provide for an adjustment
of warrant or conversion rights or obligations in case of
a capital reduction or other extraordinary measures or
events (e.g., unusually high dividends, acquisition of control
by third parties). In case of the acquisition of control by third
parties, the terms of the bonds may provide for adjustment of
the warrant or conversion price in accordance with typical
market terms. Furthermore, the terms of the bonds may provide
for a variable conversion ratio and/or variable warrant
and conversion price whereby the warrant or conversion
price is determined within a range to be set based on the
development of the share price during the term. The minimum
issue price based on the stipulations of § 4 section 8 of
MeTRo aG’s articles of association may not be undercut.
The terms of the bonds may grant MeTRo aG the right, in lieu
of providing ordinary shares upon the exercise of warrant or
conversion rights, to make a cash payment corresponding to
the volume-weighted average price of MeTRo aG ordinary
shares on the XeTRa trading system (or a functionally comparable
successor system replacing the XeTRa system) of