Convenience Translation

Transcription

1 freenet AG Büdelsdorf ISIN: DE000A0EAMM0 WKN: A0EAMM Invitation to the Shareholders Meeting The shareholders of our Company are hereby invited to attend the shareholders' meeting to be held on Tuesday, July 7, 2009, at 10:00 hours (doors open 09:00 hours) in the Congress Center Hamburg, Saal 2, Am Dammtor/Marseiller Straße, Hamburg. Agenda 1. Presentation of the adopted annual financial statements, the approved consolidated financial statements as well as the management reports of freenet AG and the Group, the report of the supervisory board and the explanatory report of the executive board regarding the disclosures in accordance with sections 289 (4) and 315 (4) HGB (Handelsgesetzbuch; German Commercial Code) for the financial year Resolution regarding the appropriation of cumulative profit The executive board and supervisory board propose that the cumulative profit of 386,799, be carried forward in full to new account. 3. Resolution regarding approval of the actions of the members of the executive board of the Company for the financial year 2008 The executive board and supervisory board propose that the actions of the members of the executive board of the Company who were in office in the financial year 2008 should be approved for this period

2 4. Resolution regarding approval of the actions of the members of the supervisory board of the Company for the financial year 2008 The executive board and supervisory board propose that the actions of the members of the supervisory board of the Company who were in office in the financial year 2008 should be approved for this period. 5. Resolution regarding the appointment of the auditor of the annual financial statements and the auditor of the consolidated financial statements for the financial year 2009 The supervisory board proposes that PricewaterhouseCoopers Aktiengesellschaft Wirtschaftsprüfungsgesellschaft, Frankfurt am Main, be appointed as the auditor of the financial statements and the consolidated financial statements for the financial year Subsequent elections to the supervisory board The shareholders representatives on the supervisory board, Dr. Dieter Leuering, Prof. Dr. Hans- Joachim Priester, Lars P. Reichelt and Richard Roy, will step down from their offices at the end of the shareholders' meeting for Pursuant to section 7 (1) of the articles of incorporation, sections 95, 96 (1), 101 (1) AktG (Aktiengesetz; Stock Corporation Act), and sections 1 (1), 5 (1) sent. 1, 7 (1) sent. 1 no. 1 of the Codetermination Act 1976 (Mitbestimmungsgesetz), the supervisory board of the Company consists of six members to be elected by the shareholders' meeting and six members to be elected by the Company s employees. The shareholders representatives in the supervisory board are appointed until the end of the shareholders' meeting which is responsible for adopting the resolution regarding approval of the actions of the members of the supervisory board for financial year For the period starting with the end of the shareholders' meeting for 2009 until the end of the shareholders' meeting which is responsible for adopting the resolution regarding approval of the actions of the supervisory board for the financial year 2011, the supervisory board proposes that the following persons should be elected as members of the supervisory board instead of the shareholders representatives who will step down at the end of the shareholders' meeting 2009: a) Dr. Christof Aha, Bad Vilbel Lawyer and partner, BEITEN BURKHARDT Rechtsanwaltsgesellschaft mbh, Frankfurt am Main b) Dr. Arnold Bahlmann, Munich Self-employed management consultant, Munich c) Maarten Henderson, Hamburg Self-employed management consultant, Hamburg d) Achim Weiss, Karlsruhe Self-employed management consultant, Karlsruhe - 2 -

3 With regard to the election of the shareholders' representatives, the shareholders' meeting is not tied to any election proposals. The elections should be held in the form of individual elections. The other current mandates of the proposed shareholders' representatives of the supervisory board are set out in the following in the information regarding the agenda. 7. Resolution regarding the authorization for acquisition and use of treasury shares in accordance with section 71 (1) no. 8 AktG, including the authorization for retiring such shares and the authorization for excluding delivery and subscription rights The executive board and supervisory board propose that the following resolution be adopted: 1) The executive board is hereby authorized to acquire treasury shares, subject to the approval of the supervisory board, amounting to, but not exceeding, 10 percent of the share capital existing at the time of the resolution concerning the present authorization, or - if this value is smaller 10 percent of the share capital existing at the time of the particular exercise of the authorization for any permissible purpose, within the framework of the legal restrictions as provided in the following provisions. The authorization takes effect upon conclusion of the resolution and is valid until January 6, Not only the Company but also its subsidiaries or third parties engaged either by the Company or by a subsidiary can make use of this authority. The acquisition is effected (i) through the stock exchange, (ii) by means of a public purchase offer addressed to all shareholders, (iii) by means of a public invitation to submit tenders or, (iv) by issuing delivery rights to the shareholders. In the case of the acquisition via the stock exchange, the equivalent value paid per share (excluding ancillary costs associated with the acquisition) must not differ by more than ten percent from the average of the stock market share prices of the Company in the closing auction in the XETRA trading system (or a comparable successor system) on the Frankfurt Stock Exchange on the respective three preceding stock exchange trading days prior to the day of validity of the obligation to purchase. In the case of a public purchase offer the nominal value paid by the Company per share (excluding ancillary costs associated with the acquisition) must not differ by more than 15 percent from the average of the stock market share prices of the Company in the closing auction in the XETRA trading system (or a comparable successor system) on the Frankfurt Stock Exchange on the 9 th, 8 th, 7 th, 6 th and 5 th stock exchange trading days prior to the publication of the purchase offer. In the case of an invitation addressed to all shareholders for the submission of tenders, the nominal value paid by the Company per share (excluding ancillary costs associated with the acquisition) must not differ by more than 15 percent from the average of the stock market share - 3 -

4 prices of the Company in the closing auction in the XETRA trading system (or a comparable successor system) on the Frankfurt Stock Exchange on the last three respective stock exchange trading days prior to the acceptance of the sales offers. Significant divergence from the offered purchase and/or selling price or from possible threshold values of any purchase or sales price ranges after publication of a purchase offer, or a public invitation to tender, may lead to the adjustment of the aforementioned offers or invitations to submit offers. In this case, the relevant amount is determined in accordance with the corresponding price on the last trading day of the stock exchange before the publication of the adjustment; the 15 percent limit relating to differences from the shares price has to be applied to this amount. The volume of a public purchase offer or a public invitation for the submission of sales offers can be restricted. If a public purchase offer or a public invitation for the submission of sales offers is oversubscribed, the acquisition and/or the acceptance according to quotas must be carried out in proportion to the shares offered in each individual case, with in this respect partial exclusion of any right of the shareholders to the tender of delivery of their shares and also with the possibility of excluding fractions. A preferential acquisition or a preferred acceptance of tendered shares involving small quantities of up to 50 shares per shareholder as well as a rounding according to business principles can be provided, with in this respect partial exclusion of any right of the shareholders to the tender of delivery of their shares. If tender of delivery rights is provided to the shareholders for the purpose of acquisition, then these can be assigned to the shareholders in proportion to their equity holding according to the proportion of the volume of the shares to be bought back by the Company that are to be allotted to the share capital. Fractions of tender of delivery rights are not allocated; in this case any partial tender of delivery rights are excluded. The price or the threshold value of the offered purchase price range (excluding ancillary costs associated with the acquisition in each case) at which the shares can be sold by exercising tender of delivery rights is determined and adapted if necessary according to the regulations concerning the request for the submission of tenders. The executive board determines the detailed structuring of the tender of delivery rights, in particular its contents, the maturity period and, if necessary, its transferability. 2) The executive board is authorized to use the treasury shares acquired on the basis of this authorization as follows: a) Subject to the approval of the supervisory board, the shares can be sold via the stock exchange or by way of a public offer to all shareholders on the basis of their percentage holding; in the case of an offer for all shareholders, the subscription right is excluded for fractions. The shares can also be otherwise sold against cash payment, subject to the approval of the supervisory board, at a price which is not substantially lower than the price of Company shares on the stock exchange at the time of sale. The proportionate amount of the share capital being allotted to the number of shares sold under this authorization may not exceed 10 percent of the share capital existing either at the time of the resolution of the shareholders' meeting concerning this authorization or, if this value is smaller, at the time of the respective exercising of the - 4 -

5 authorization. The 10 percent threshold is to be set off against the proportionate amount of share capital of new shares that have been issued by virtue of any authorizations for the issue of shares from authorized capital with the exclusion of shareholder's subscription rights pursuant to section 186 (3) sent. 4 AktG since resolution of the shareholders' meeting concerning the authorization. Similarly, this limit is to be set off against the proportionate amount of share capital which is allotted to options and/or convertible bonds with an option or conversion right for shares that have been issued/sold by virtue of any authorizations in accordance with sections 221 (4), 186 (3) sent. 4 AktG since resolution of the shareholders' meeting concerning the authorization. c) Shares can be offered and transferred, subject to the approval of the supervisory board, to third parties in return for the direct or indirect acquisition of businesses, parts of businesses, as well as acquisition of holdings in other businesses or within the context of mergers. d) Shares can be offered for purchase to persons with an employment relationship with either the Company or an affiliated enterprise or can be transferred to such persons with the approval of the supervisory board. e) The shares can be used for fulfilling option or conversion rights or conversion obligations arising from option and/or convertible bonds which the Company or a direct or indirect subsidiary of the Company has issued on the basis of an authorization of the shareholders' meeting. f) The shares can also be retired without such retirement or the performance of such action requiring a further resolution of the shareholders' meeting. The shares can also be retired in such a way that the share capital is not changed; instead, the proportion of shares in relation to the share capital is increased by the retirement in accordance with section 8 (3) AktG (section 237 (3) no. 3 AktG). In this case the executive board is authorized to adjust the number of shares in the articles of incorporation accordingly. 3) The subscription right of shareholders in relation to the shares used in accordance with point 2 is excluded as specified in point 2a) and is also excluded if these shares are used in accordance with the above-mentioned authorizations set out under points 2b), c), d) and e). 4) The authorizations for the purchase of treasury shares, for their disposal or other use and/or for their retirement, can be exercised independently of each other, either once or repeatedly, in whole or in part. Insofar as shares are used as a consideration, this can also occur in combination with other forms of the consideration. 5) Insofar as approval of the supervisory board to the measures is required due to this authorization, the supervisory board can transfer the responsibility to a committee. 8. Resolution regarding the authorization for use of equity capital derivatives within the framework of the acquisition of treasury shares in accordance with section 71 (1) no. 8 AktG as well as for the exclusion of the tender of delivery and subscription right In addition to the recommended authorization under agenda item 7 for the purchase of treasury shares and in accordance with section 71 (1) no. 8 AktG, the Company shall also be authorized - 5 -

6 to purchase treasury shares through the use of equity capital derivatives. This does not increase the maximum volume of shares which is permitted to be acquired; it only provides a further alternative for acquiring treasury shares. The executive board and supervisory board thus propose that the following resolution be adopted: 1) In addition to the recommended authorization under agenda item 7 for the purchase of treasury shares and in accordance with section 71 (1) no. 8 AktG, the acquisition of company shares may also be carried out in ways other than those described therein, for example through the use of equity capital derivatives. Furthermore, the executive board is authorized, subject to the approval of the supervisory board, to acquire options that convey the right to the Company to purchase freenet shares ( call options ) by exercising the options. The executive board is also authorized, subject to the approval of the supervisory board, to sell or take out options obliging the Company to acquire freenet shares ( put options ) upon exercising of the options by the owners. Furthermore, the acquisition can be effected by the use of a combination of put and call options as well as by the use of other equity capital derivatives as determined hereinafter. All share acquisitions as a result of put options, call options, a combination of put and call options or of other equity capital derivatives are limited to shares within the scope of not more than 5 percent of either the share capital existing at the time of the resolution of the shareholders' meeting or, if this value is smaller, the share capital existing at the time of the respective exercise of the authorization on hand. 2) The options must be transacted with a financial institution at conditions close to those of the market. The options are to be so arranged that they are only supplied with shares acquired whilst safeguarding the equal treatment principle of shareholders - satisfied by the purchase of shares on the stock exchange. The term of the options must be selected in such a way that any exercising of the options does not result in the shares being acquired after January 6, ) The consideration payable for a freenet share upon the exercising of a call option must not be more than 10 percent higher or more than 20 percent lower than the average market prices of the Company s shares in the closing auction in the XETRA trading system (or a comparable successor system) on the Frankfurt Stock Exchange on the three market trading days preceding the day on which the call option is exercised (excluding ancillary purchase costs in each case); any residual value of the call option is disregarded. The consideration payable for a freenet share upon the exercising of a put option must not be more than 10 percent higher or more than 30 percent lower than the average market prices of the Company s shares in the closing auction in the XETRA trading system (or a comparable successor system) on the Frankfurt Stock Exchange on the three trading days preceding the day on which the put option is exercised (excluding ancillary purchase costs in each case). 4) Furthermore, agreement can be reached with a financial institution for the financial institution to supply to the Company a share quantity or Euro equivalent of shares fixed beforehand within a defined time period determined in advance. The price at which the Company purchases treasury shares thereby shows a discount to the arithmetical average of the volume weighted market - 6 -

7 averages of the freenet share in the XETRA trading system, calculated over a fixed, predetermined number of stock exchange days. Furthermore, the financial institution must undertake to buy shares on the stock exchange at prices lying within the range that would apply should the shares be purchased on the stock exchange directly by the Company. 5) Should treasury shares be purchased using the equity capital derivatives under consideration of the preceding provisions, any right of the shareholders to conclude such option deals or other equity derivatives with the Company, as well as any tender of delivery right of the shareholders, is excluded. 6) For the use of treasury shares acquired by way of equity capital derivatives, points 2) and 4) of the resolution proposal under the stipulated regulations in agenda item 7 apply accordingly. The shareholders subscription rights for treasury shares is excluded in accordance with point 2a) and also if these shares are used in accordance with the resolutions set out in point 2b), c), d) and e) of the proposed resolution with regard to agenda item 7. 7) The authorizations for acquiring treasury shares, for taking out or entering into call options, put options or other equity capital derivatives, for disposing the shares or any other use or with regard to their retirement can be exercised independently of each other, on one or more occasions, in part or also in whole. Insofar as shares are used as a consideration, this can also occur in combination with other forms of the consideration. 8) Insofar as approval of the supervisory board to the measures is required due to this authorization, the supervisory board can transfer the responsibility to a committee. 9. Resolution regarding the creation of further authorized capital by way of an amendment to the articles of incorporation with authorization to exclude subscription rights In accordance with section 4 (6) of the articles of incorporation, the executive board is authorized, subject to the approval of the supervisory board, to increase the share capital of the Company in return for cash and/or non-cash contributions by a total of up to 16,030,508 by August 18, The executive board is also authorized, subject to the approval of the supervisory board, to exclude the subscription right of the shareholders in various cases as defined in the articles of incorporation. The executive board and supervisory board consider that the authorized capital in accordance with section 4 (6) of the articles of incorporation of approx. 12.5% of the share capital is not adequate. The executive board and supervisory board thus propose that the following resolution be adopted: Section 4 (7) of the articles of incorporation will now become section 4 (8) of the articles of incorporation. A new paragraph 7 with the following wording will be inserted in section 4 of the articles of incorporation

8 Until July 6, 2014, the executive board is authorized, subject to the approval of the supervisory board, to increase the share capital by a total of up to 20,000,000 (twenty million euros) in a single or in several amounts by way of issuing new bearer shares in return for cash and/or non-cash contributions (authorized capital 2009). The executive board is also authorized, subject to the approval of the supervisory board, to decide as to whether the subscription rights are to be excluded. Shareholders can also be provided with statutory subscription rights in such a way that the new shares are offered to be taken up by one or more credit institutions or equivalent enterprises pursuant to section 186 (4) AktG on condition that they are offered to the shareholders (indirect subscription right). 10. Resolution regarding an authorization for the issue of convertible and/or option bonds and for the exclusion of the subscription right as well as a resolution regarding the creation of contingent capital 2009 and the corresponding amendment to the articles of incorporation The executive board and supervisory board consider that it is meaningful for the Company to have the possibility of using appropriate financial instruments, and in particular convertible and option bonds. In the past, it was consistent with widespread corporate practise, within the framework of the authorization for issuing convertible and/or option bonds with subscription rights being excluded, for only minimum issue amounts to be defined in the authorization for the shares for the conversion or option price which still had to be defined, without the minimum issue amounts being specified precisely. Recently, several courts at various levels of jurisdiction have expressed doubt with respect to the admissibility of this widespread form of authorization under company law. These doubts have been settled by the BGH (Bundesgerichtshof; Federal Law of Justice) with the resolution of May 18, 2009 (II ZR 124/08), confirming that the former corporate practise specified above is indeed permissible under stock corporation law. In the draft of a law governing the implementation of the Aktionärsrechterichtlinie (ARUG; Shareholders Rights Guideline) of the Federal Government of January 21, 2009 (Bundestag printed matter no. 16/11642), there are plans for the fundamental basis under stock corporation law for the above-mentioned practise to be also explicitly stated in the law by way of an amendment to section 193 (2) no. 3 AktG. It is expected that the legislation procedure will be completed and that the ARUG will come into force in the late summer or autumn of Within this context, the executive board and supervisory board propose that the following resolutions be adopted: A) Authorization for the issue of convertible and/or option bonds and for the exclusion of the subscription right The executive board is authorized, subject to the approval of the supervisory board, to issue, either once or repeatedly until July 6, 2014, registered or bearer convertible and/or option bonds (together "bonds") with or without a maturity time limit with a total nominal value of up to 450,000,000. The executive board is also authorized to grant to the holders of bonds conversion rights or option rights and/or conversion obligations relating to the bearer shares of - 8 -

9 the Company with a proportionate amount of the share capital of up to a total of 15,000,000 subject to the terms of the bond. The bonds can also be issued by a directly or indirectly wholly-owned group company of the Company. In this case, the executive board is authorized, subject to the approval of the supervisory board, to issue the guarantee for the bonds and to grant the holders conversion or option rights relating to new bearer shares of the Company. The individual issues can be divided into partial bonds carrying equal rights. If option bonds are issued, each bond is provided with one or more warrants which entitle the holder to purchase no-par-value bearer shares of the Company subject to the terms and conditions of the options to be determined by the executive board. The option terms also provide for the fulfilment of the option price either in whole or in part through the assignment of partial bonds. The stock split ratio results from the division of the nominal value of a partial bond by the fixed option price for a no-par-value bearer share of the Company. Arithmetical fractions of shares resulting herefrom are compensated for in cash. The pro-rata interest in the share capital of the bearer shares of the Company to be purchased for each bond must not exceed the nominal amount of the bond. The terms of section 9 (1) in conjunction with section 199 (2) AktG must be complied with. If convertible bonds are issued, the holders of the partial bonds receive the right to convert them into no-par-value bearer shares of the Company subject to the terms of the bond to be determined by the executive board. The conversion ratio results from the division of the nominal value of a partial bond by the stipulated conversion price for a no-par-value bearer share of the Company. The conversion ratio can also be calculated by dividing the issue amount of a partial bond which is lower than the nominal amount by the conversion price defined for a new no-parvalue bearer share of the Company. A cash payment is made to compensate for any resulting arithmetical fractions of shares. The proportionate amount of the share capital of the no-par-value bearer shares to be issued upon conversion must not exceed the nominal amount of the partial bond. The bond terms can also specify a conversion obligation at the end of the life of the bond or at an earlier date ("final maturity"; this is also applicable for a bond falling due as a result of termination), or they may provide the Company with the right, upon final maturity, to grant shares of the Company to the holders of the convertible bonds in part or in whole instead of paying the cash amount which becomes due. In this case, too, the pro-rata interest in the share capital of the bearer shares to be issued upon conversion must not exceed the nominal amount of the bonds. The terms of section 9 (1) in conjunction with section 199 (2) AktG must be complied with. The terms of the bond can specify that treasury shares of the Company can also be granted in the case of conversion or exercising of an option. It is also possible to specify that the Company does not grant bearer shares of the Company to the conversion or option beneficiary, and instead is able to pay the consideration in cash. The conversion and option price are calculated according to the rules of the contingent capital 2009 adopted pursuant to agenda 10, letter B)a) of the shareholders' meeting of July 7,

10 When the terms of the option and/or convertible bonds provide the right for the Company to issue company shares to the holders of the option and/or convertible bonds at final maturity, either in part or in full, instead of payment of the due amount in cash, the option or conversion price corresponds to the applicable option or conversion price on the third day of trade before final maturity ( valuation date ). The Company will subsequently pay the holders of the option and/or convertible bonds, where applicable, an additional sum of money, corresponding to the difference between the nominal amount of the convertible and /or option bond and the market value of the granted shares (arithmetic mean of the Company share price in the closing auction in XETRA trading or a corresponding successor system on the stock market in Frankfurt am Main on the valuation day falling in the 20 stock exchange trading days immediately preceding the valuation date). The terms of the bond can specify that the conversion or option price, irrespective of the minimum issue price, can be adjusted during the conversion or option period in accordance with section 9 (1) in conjunction with section 199 (2) AktG in the following cases, whereby existing value relations have to be maintained: - Increase in capital by conversion of capital reserves or of retained profit by way of using new shares - Consolidation of shares - Increases of capital involving the granting of subscription rights, without subscription rights being provided to the holders of existing convertible or option bonds with conversion or option rights or conversion obligations to the extent to which they would be entitled after exercising the conversion or option right or after fulfilling the conversion obligation - Issuing further convertible or option bonds or granting or guaranteeing other conversion or options rights or obligations without a subscription right being granted to the holders of existing conversion or option rights or obligations to the extent to which they would be entitled after exercising the conversion or option right or after fulfilling the obligation - Capital reductions (if not only in the form of a reduction of the pro rata interest in the share capital attributable to an individual share) - In the event of other unusual measures or events which may have an impact on the Company s capital structure. In these cases, the adjustment is made in line with section 216 (3) AktG and also in line with normal market practise in such a way that the financial value of the conversion and/or option rights or conversion obligations which existed immediately before the measure which triggered off the adjustment is not affected. The actual calculation and determination of the respective adjustment is carried out subject to the terms of the options or convertible bonds by an expert credit institution under the consideration of criteria and is binding as far as no obvious error is evident. Instead of an adjustment of the option or conversion price, the payment of a corresponding amount can, in all cases, be provided by the Company in cash on exercising the conversion or option right or on the fulfilment of the conversion or option obligation subject to the terms of the option or convertible bonds

11 The shareholders are normally entitled to a subscription right for the bonds. The bonds can also be taken up by one or several credit institutions with the obligation to offer them to the shareholders for acquisition (indirect subscription right). If bonds of a corporate affiliate of the Company are issued then the Company has to guarantee the provision of the legal subscription right for the shareholders of freenet AG in accordance with the preceding provisions, provided that the subscription right as provided in the following regulations is not excluded. However, if bonds with conversion and/or option rights or conversion obligations are to be issued in return for cash, the executive board is authorized, subject to the approval of the supervisory board, to issue bonds with conversion and/or option rights or conversion obligations in accordance with the terms of section 186 (3) sent. 4 AktG with shareholders subscription rights excluded if the issue price is not significantly lower than the theoretical market value of the bonds with conversion and/or option rights or conversion obligations calculated in accordance with recognized, and in particular actuarial, methods. This authorization for excluding shareholders subscription rights is only applicable if the shares which have been issued, or which will be issued, for servicing the conversion and/or option rights or for fulfilling the conversion obligation in total account for a pro-rata amount of the share capital which does not exceed 10 percent of the corresponding share capital at the time at which this authorization is exercised. The pro-rata interest in the share capital of shares which will be issued after July 7, 2009 out of authorized capital or which can be acquired as a result of conversion or option rights issued after July 7, 2009 or as a result of conversion obligations established since July 7, 2009 is offset against this maximum amount for excluding shareholders subscription rights if, when the authorized capital is utilized or when the convertible and/or option bonds are issued, the shareholders subscription right are excluded in accordance with section 186 (3) sent. 4 AktG. In addition, it is also necessary to offset the pro-rata amount of the share capital of treasury shares which the Company has acquired on the basis of an authorization in accordance with section 71 (1) no. 8 AktG and which it has sold to third parties after July 7, 2009 and up to the point at which this authorization is exercised in return for a cash payment with shareholders subscription rights being excluded in accordance with section 186 (3) sent. 4 AktG. The executive board is also authorized, subject to the approval of the supervisory board, to exclude shareholders' subscription rights for bonds in relation to fractions, and also to exclude the shareholders' subscription rights, subject to the approval of the supervisory board, to the extent necessary to grant the holders of conversion or option rights relating to no-par-value bearer shares of the Company or the holders of convertible bonds to which conversion obligations are attached a subscription right to the extent to which they would be entitled after exercising the conversion right or option right or after the conversion obligation is fulfilled. The executive board is authorized, subject to the approval of the supervisory board, to fix the further details of the issue and terms of the bonds and their conditions in accordance with the principles defined in this authorization, or to determine them with the approval of the executive bodies of the issuing companies in which the Company owns a direct or indirect stake. This is applicable particularly with regard to the interest rate, the type of coupon, the term and the units, the conversion or option period, the definition of a cash additional payment, compensation for or merging of fractions, dilution protection regulations, cash payment instead of delivery of no-par

12 value bearer shares and the delivery of existing instead of the issue of new no-par-value bearer shares. B) Contingent capital and changes to the articles of incorporation a) Contingent capital 2009 A contingent capital increase of up to 15,000,000 is carried out for the share capital by way of issuing up to 15,000,000 new no-par-value bearer shares, with each individual no-par-value share accounting for 1.00 of the share capital ("contingent capital 2009"). The purpose of the contingent capital increase is to enable no-par-value bearer shares to be granted to the holders of convertible and/or option bonds which are issued on the basis of the authorization of the Company or one of its directly or indirectly owned group companies adopted by the shareholders' meeting of July 7, 2009 under agenda item 10 letter A) and which provides a conversion or option right in relation to the no-par-value bearer shares of the Company or which establishes a conversion obligation in relation to these shares. The issue amount for the new no-par-value bearer shares from contingent capital 2009 must be equivalent to at least 80 percent of the volume-weighted average price of the Company s shares in XETRA trading (or an equivalent successor system) on the stock exchange in Frankfurt am Main on the last ten market trading days before the day on which the resolution regarding the issue of bonds is adopted by the executive board or for subscription right trading at least 80 percent of the volume-weighted average price of the Company s shares in the XETRA trading system (or a comparable successor system) on the stock in exchange in Frankfurt am Main during the days on which the subscription rights relating to the bonds are traded on the Frankfurt Stock Exchange, with the exception of the last two market days of subscription right trading; however, the issue amount must under no circumstances be less than per share. Usual dilution protection terms can be provided for the holders of the convertible and/or option bonds. The contingent capital increase is only to be carried out to the extent to which conversion or option rights are utilized or to which holders with a conversion obligation meet their conversion obligation and if treasury shares are not used for settlement or if the Company does not provide a cash settlement. The new no-par-value bearer shares participate in the profits from the beginning of the financial year in which they are created as a result of the exercising of conversion rights, option rights or the fulfilment of conversion obligations. The executive board is authorized to stipulate all further details pertaining to implementation of the contingent capital increase. b) Changes to the articles of incorporation Section 4 of the articles of incorporation is extended to include the following new paragraph 9: A contingent capital increase of up to 15,000,000 is carried out for the share capital by way of issuing up to 15,000,000 new no-par-value bearer shares, with each individual nopar-value share accounting for 1.00 of the share capital ("contingent capital 2009"). The purpose of the contingent capital increase is to enable no-par-value bearer shares to be granted to the holders of convertible and/or option bonds which are issued on the basis of

13 the authorization of the Company or one of its directly or indirectly owned group companies adopted by the shareholders' meeting of July 7, 2009 under agenda item 10 letter A) and which provides a conversion or option right in relation to the no-par-value bearer shares of the Company or which establishes a conversion obligation in relation to these shares. The issue amount for the new no-par-value bearer shares from contingent capital 2009 must be equivalent to at least 80 percent of the volume-weighted average price of the Company s shares in XETRA trading (or an equivalent successor system) on the stock exchange in Frankfurt am Main on the last ten market trading days before the day on which the resolution regarding the issue of bonds is adopted by the executive board or for subscription right trading at least 80 percent of the volume-weighted average price of the Company s shares in the XETRA trading system (or a comparable successor system) on the stock in exchange in Frankfurt am Main during the days on which the subscription rights relating to the bonds are traded on the Frankfurt Stock Exchange, with the exception of the last two market days of subscription right trading; however, the issue amount must under no circumstances be less than per share. Usual dilution protection terms can be provided for the holders of the convertible and/or option bonds. The contingent capital increase is only to be carried out to the extent to which conversion or option rights are utilized or to which holders with a conversion obligation meet their conversion obligation and if treasury shares are not used for settlement or if the Company does not provide a cash settlement. The new no-par-value bearer shares participate in the profits from the beginning of the financial year in which they are created as a result of the exercising of conversion rights, option rights or the fulfilment of conversion obligations. The executive board is authorized to determine the further details for carrying out the contingent capital increase. 11. Approval of the profit and loss transfer agreement between freenet AG and freenet.de GmbH freenet AG and freenet.de GmbH, a direct wholly owned subsidiary of the Company, intend, following approval of the shareholders' meeting of the Company, to conclude a profit and loss transfer agreement in accordance with the following draft: Profit and loss transfer agreement 1 Profit transfer (1) freenet.de GmbH commits itself, subject to the creation and reversal of reserves according to (2), to pay to freenet AG the company s entire annual surplus that would have arisen without the profit transfer, less any losses carried forward from the previous year. This transfer is to take place for the first time for the financial year in which this contract takes effect. The profit transfer must not exceed the amount specified in section 301 AktG

14 (2) freenet.de GmbH can, with the approval of freenet AG, assign amounts from the annual surplus into the other revenue reserves (section 272 (3) HGB) as far as this is lawfully permissible and economically well-founded. Other revenue reserves formed during the duration of the contract according to section 272 (3) HGB, are to be reversed if freenet AG so requests and used in order to settle annual deficit or accumulated losses brought forward or transferred as profit. (3) The transfer of income from the reversal of capital reserves or revenue reserves created before this agreement came into force is excluded from the profit transfer arrangement. (4) The claim to profit transfer arises on the appointed date of the freenet.de GmbH annual financial statements, upon which it becomes due. Interest is charged at a rate of 5 percent per annum from this time onwards. 2 Loss absorption (1) freenet AG is obliged to absorb losses from freenet.de GmbH according to the profit transfer regulations set out in section 302 AktG, in their respectively valid versions. (2) The claim for adjustment of losses arises on the appointed date of the freenet.de GmbH annual financial statements, upon which it becomes due. Interest is charged at a rate of 5 percent per annum from this time onwards. 3 Effective date and duration of contract (1) The contract is concluded subject to the approval of the shareholders' meeting of freenet AG as well as the partners meeting of freenet.de GmbH. It comes into effect following registration in the trade registry of freenet.de GmbH and applies retroactively to the beginning of the financial year when the registration in the trade registry was made. (2) The contract is concluded for an indefinite period of time. It can be terminated for the first time on the expiry of a period of five calendar years after the start of the financial year of freenet.de GmbH in which it first becomes valid; subject to a notice period of three months and provided that at the time of expiry of the five calendar years the financial year of freenet.de GmbH has ended; otherwise termination in compliance with the same notice period may only be given on the last day of the current financial year of freenet.de GmbH. Should the contract not be terminated, it will be extended with the same notice period until the end of freenet.de GmbH s next financial year. Any notice of termination must be provided in writing. Observance of the notice period depends on the time of arrival of the notice at the other party s premises. (3) The right to serve immediate notice to terminate the contract for a compelling reason remains unaffected. freenet AG is able to terminate this contract with immediate effect at any time for a compelling reason if it no longer owns a direct majority of the voting rights for the

15 shares in freenet.de GmbH, if it has concluded a contract which results in it no longer owning a direct majority of the voting rights for the shares in freenet.de GmbH when it is concluded, or if there is a compelling reason in accordance with the prevailing corporation tax guidelines or a corresponding regulation which is applicable at the point at which this contract is terminated. 4 Concluding remarks (1) The costs of certifying the approval resolution of the partners meeting of freenet.de GmbH with regard to this contract and the costs of entry in the commercial register are borne by freenet.de GmbH. (2) If one stipulation of this contract is or becomes ineffective, the remaining stipulations of the contract shall continue to remain in force. The parties agree to replace the ineffective stipulation by a stipulation which most closely approximates the economic intent of the ineffective stipulation. This is also applicable if the contract contains an omission. The executive board and supervisory board propose that the following resolution be adopted: The conclusion of a profit and loss transfer agreement between freenet AG and freenet.de GmbH in accordance with the draft which has been presented is approved. 12. Resolutions regarding adjustments to the articles of incorporation in relation to section 118 AktG in the version of the planned Law for Implementing the Shareholders Rights Guideline (ARUG) The draft of the Law for Implementing the Shareholders Rights Guideline (ARUG) of the Federal Government dated January 21, 2009 (Bundestag printed matter no. 16/11642) contains various provisions, including amendments to section 118 AktG for the exercising of shareholders rights in the shareholders' meeting. The legislation procedure has so far not been completed; however, the law is expected to come into force probably in the late summer or autumn of It is intended that corresponding authorizations regarding the articles of incorporation will be adopted this year in order to be in a position to take advantage of the enhanced possibilities of participating in the shareholders' meeting and for casting votes where possible in the first shareholders' meeting after the ARUG comes into force. In addition, the rule of the articles of incorporation regarding the webcast of the shareholders' meeting is to be amended and brought into line with the planned ruling of the ARUG; this means that this possibility can continue to be used after the ARUG comes into force. However, the modifications to the articles of incorporation are only to be registered in the commercial register after the ARUG has come into force. The current wording of section 14 (3) of the articles of incorporation is as follows: The shareholders' meeting can be transmitted in part or in whole by audio-visual means. It can also be transmitted in a form which provides unrestricted public access. Moreover, to the extent that this is admissible, it is also possible to provide a facility for taking part in the shareholders'

16 meeting and participating in the votes in the shareholders' meeting by means of electronic media. The details, and in particular the transmission and form, will be announced together with the invitation to attend the shareholders' meeting. The executive board and supervisory board propose that the following resolution be adopted: (1) Section 14 (3) of the articles of incorporation is to be replaced by the following ruling: The executive board is authorized to permit the shareholders' meeting to be broadcast by audio-visual means. The executive board is also authorized to enable the shareholders to participate in the shareholders' meeting, without having to be present at the location of the shareholders' meeting and without having to nominate a proxy, and also to ensure that the shareholders are able to exercise all or some of their rights in part or in whole by way of electronic means of communication. (2) Section 15 of the articles of incorporation is extended to include the following new paragraph 5: The executive board is authorized to enable shareholders to cast their votes in writing or by way of electronic means of communication, even without attending the shareholders' meeting. (3) The executive board is instructed, to register the amendment to the articles of incorporation under the previous point (1) with the commercial register only if the ruling of section 118 (4) and the ruling of 118 (1) AktG and to register the addition to the articles of incorporation of the above point (2) to the commercial register only if the ruling of section 118 (2) AktG in the version of the draft of a Law for Implementing the Shareholders Rights Guideline (ARUG) of the Federal Government of January 21, 2009, Bundestag printed matter no. 16/11642, is or are still in force in unchanged form. 13. Resolution regarding the deletion of section 13 (3) of the articles of incorporation As a result of the Law for Implementing the Shareholders Rights Guideline (ARUG) which is currently going through the legislation procedure, new regulations concerning the method of determining periods and deadlines which are calculated back from the shareholders' meeting are also to be included in section 121 AktG. In this way, the currently valid legal regulations in section 123 (4) AktG, which are included in section 13 (3) of the articles of incorporation with identical wording, are to be replaced. This would mean that section 13 (3) of the articles of incorporation would thus be unlawful and outdated from the point at which the ARUG comes into force. The executive board and supervisory board thus propose that the following resolution be adopted:

17 Section 13 (3) of the articles of incorporation is deleted. 14. Resolution regarding the amendment to section 15 (3) of the articles of incorporation The regulations for voting right proxies in the shareholders' meeting are also to be amended by the Law for Implementing the Shareholders Rights Guideline (ARUG) which is currently going through the legislation procedure. This aspect is to be recognized in advance. Section 15 (3) of the articles of incorporation currently states the following with regard to voting right proxies: Voting rights can be exercised by proxies. The written form is necessary and sufficient for the proxy. If proxies nominated by the Company are authorized to exercise the voting rights, the proxy can be awarded in writing, by telefax or by electronic means to be determined in greater detail by the Company. In order to ensure that the regulation in the articles of incorporation regarding the granting of voting right proxies is also consistent with the legal situation after the ARUG has come into force, section 15 (3) of the articles of incorporation is to be amended. The executive board and supervisory board thus propose that the following resolution be adopted: Section 15 (3) of the articles of incorporation is revised as follows: Voting rights can be exercised by proxies. The statutory regulations are applicable for granting and revoking the proxy and for providing evidence of the proxy to the Company. The text form is sufficient unless a more stringent form is required by law; section 135 AktG is not affected. 15. Resolution regarding the amendment to section 16 of the articles of incorporation With regard to resolutions of the shareholders' meeting regarding elections, section 16 (2) of the articles of incorporation states that it is sufficient for a submission to be adopted on the basis of a relative majority of votes. The executive board and supervisory board consider that it is not appropriate for it to be possible, under certain circumstances, for shareholders representatives who are rejected by the majority of shareholders to be elected on to the supervisory board only because they were able to attract more votes relative to other candidates. The executive board and supervisory board thus propose that the following resolution be adopted: Section 16 (2) of the articles of incorporation is deleted