Information on shareholders' rights pursuant to sections 122 (2), 126 (1), 127, and 131 (1) AktG for the Extraordinary General Meeting 2011

Transcription

1 Information on shareholders' rights pursuant to sections 122 (2), 126 (1), 127, and 131 (1) AktG for the Extraordinary General Meeting 2011 Supplementary requests (section 122 (2) AktG) Shareholders whose shares together make up a twentieth of the share capital (this equates to 2,420,920 no-par-value shares) or a pro-rata amount of EUR 500, can specify that items be added to the agenda and published. A justification or a draft resolution must be provided for each new item. The Company must receive supplementary requests in writing at least 30 days prior to the General Meeting; this period does not include the day of receipt of the request or the day of the General meeting. The Company must therefore receive any supplementary requests by midnight CET on Sunday, November 13, Supplementary requests received after this time will not be taken into consideration. Supplementary requests are taken into consideration only if the applicants prove that they have been the holders of the shares making up the required minimum shareholding in the three months before the day of the General Meeting. Any supplementary requests must be sent to the following address: MEDION AG Investor Relations Am Zehnthof Essen Germany Any supplements to the Agenda that must be published provided they were not already made public at the time the General Meeting was convened will be published in the electronic Federal Gazette immediately after the request has been received and will also be furnished to such suitable media as may be expected to disseminate the information throughout the European Union. They will also be published on the internet at Motions from shareholders (section 126 (1) AktG) Under section 126 (1) AktG, any shareholder is entitled to file a counter-motion to the proposals of the Management Board and/or Supervisory Board for a particular agenda item. Countermotions including a justification, received by the Company at the postal address, address, or on the fax number below at least 14 days before the General meeting (this period does not include the day of receipt of the counter-motion or the day of the General meeting), i.e. by midnight CET on Tuesday, November 29, 2011 at the latest, will be made available without delay, along with the name of the shareholder, the justification for the counter-motion, and any responses from the Management, on the internet at (see section 126 (1) sentence 3 AktG). The following postal address, fax number, or address must be used for the submission of counter-motions (including the justification for the counter-motion): MEDION AG Investor Relations Am Zehnthof Essen Germany Fax: AOHV2011@medion.com.

2 Counter-motions sent to a different address will not be taken into consideration. According to 126 (2) AktG a duty to make a counter-motion and its justification available on the internet does not exist, if 1. the managing board would by reason by such accessibility become criminally liable; 2. the counterproposal would result in a resolution of the general meeting that would be illegal or would violate the articles; 3. the reasons contain statements which are manifestly false or misleading in material respects or which are libelous; 4. a counterproposal of such shareholder based on the same facts has already been made available with respect to a general meeting of the company pursuant to 125; 5. the same counterproposal of such shareholder based on essentially identical supporting information has already been made available pursuant to 125 to at least two general meetings less than one-twentieth of the capital stock represented has voted in favor of such counterproposal; 6. the shareholder indicates that he/she will neither attend nor be represented at the general meeting; or 7. within the past two years at two general meetings the shareholder has failed to make or cause to be made on his/her behalf a counterproposal communicated by him/her. The justification does not need to be made accessible if it exceeds a total of 5,000 characters. If a number of shareholders file counter-motions for the same agenda item, the Management Board may amalgamate the counter-motions and the associated justifications. This is without prejudice to the right of all shareholders to file counter-motions to the various agenda items during the General Meeting without submitting them to the Company by the deadline before the meeting. Nominations from shareholders (section 127 AktG) Under section 127 AktG, any shareholder has the right to submit to the Company nominations for the election of members of the Supervisory Board (agenda item 2) or for the election of the auditors (agenda item 5). Nominations from shareholders received by the Company at the postal address, address, or on the fax number below at least 14 days before the meeting (this period does not include the day of receipt of the nomination or the day of the General Meeting), i.e. by midnight CET on Tuesday, November 29, 2011 at the latest, will be made available without delay, along with the name of the shareholder and any responses from the Management, on the internet at The Management Board does not have to publish the nominations from shareholders if the nominations do not include the name, profession, and place of residence of the nominee or, in the case of nominations for the election of members of the Supervisory Board, details of the nominee's membership in other statutory supervisory boards (see section 127 sentence 3 in conjunction with section 124 (3) sentence 3 and section 125 (1) sentence 5 AktG). According to s. 127 sentence 1 in conjunction with s. 126 (2) AktG a duty to make a available a nomination on the internet does not exist, if

3 1. the managing board would by reason by such accessibility become criminally liable; 2. the nomination would result in a resolution of the general meeting that would be illegal or would violate the articles; 3. the reasons contain statements which are manifestly false or misleading in material respects or which are libellous; 4. a nomination of such shareholder based on the same facts has already been made available with respect to a general meeting of the company pursuant to 125; 5. the same nomination of such shareholder based on essentially identical supporting information has already been made available pursuant to 125 to at least two general meetings less than one-twentieth of the capital stock represented has voted in favour of such counterproposal; 6. the shareholder indicates that he/she will neither attend nor be represented at the general meeting; or 7. within the past two years at two general meetings the shareholder has failed to make or cause to be made on his/her behalf a nomination communicated by him/her. In contrast to counter-motions pursuant to s. 126 (1) AktG, nominations do not need to be justified. The justification does not need to be made accessible if it exceeds a total of 5,000 characters. The following postal address, fax number, or address must be used for the submission of nominations: MEDION AG Investor Relations Am Zehnthof Essen Germany Fax: +49 (0) AOHV2011@medion.com. Nominations sent to a different address will not be taken into consideration. This is without prejudice to the right of all shareholders to make nominations for the election of members of the Supervisory Board (agenda item 2) or for the election of the auditors (agenda item 5) during the General Meeting without submitting them to the Company by the deadline before the meeting. Shareholders' right to receive information (sections 131 (1) and 293g (3) AktG) In accordance with section 131 (1) AktG, at the General Meeting, any shareholder may request from the Management Board information about matters concerning the Company, to the extent that this information is necessary to make an informed judgement about the relevant agenda item. The Management Board's duty to provide information also extends to legal and business relationships between the Company and an affiliated company plus the situation of the Group and of the companies covered by the consolidated financial statements (see section 131 (1) sentence 2 and sentence 4 AktG).

4 According to section 131 (3) sentence 1 AktG, the managing board may refuse to provide information: 1. to the extent that providing such information is, according to the sound business judgment, likely to cause material damage to the company or an affiliated enterprise; 2. to the extent that such information relates to tax valuations or the amount of certain taxes; 3. with regard to the difference between the value at which items are shown in the annual balance sheet and the higher market value of such items, unless the general meeting is to approve the annual financial statements; 4. with regard to the methods of classification and valuation, if disclosure of such methods in the notes suffices to provide a clear view of the actual condition of the company's assets, financial position and profitability within the meaning of 264 (2) of the German Commercial Code; the foregoing 4 of 4 shall not apply if the general meeting is to approve the annual financial statements; 5. if provision thereof would render the managing board criminally liable; 6. insofar as, in the case of credit institutions or financial services institutions, information need not be given on methods of classification and valuation applied and setoffs made in the annual financial statements and management's discussion and analysis thereof; 7. if the information is continuously available on the Internet website of the company for at least seven days prior to the beginning and during the general meeting. The provision of information may not be refused for other reasons. According to section 131 (3) sentence 2 AktG, the provision of information may not be denied for other reasons. In addition, the chairman of the meeting is authorized to adopt various measures of order and control at the General Meeting. This also includes the limitation of the right to speak and ask questions. Pursuant to section 293g (3) AktG, any shareholder present at the General Meeting must, on request, also be given information on all the other party's affairs material to the proposed agreement in agenda item 1 (Resolution to consent to a Domination and Profit and Loss Transfer Agreement between the Company and Lenovo Germany Holding GmbH). The provisions of the German Stock Corporation Act (AktG) underlying these shareholder rights are as follows: 122 AktG Convening a meeting at the request of a minority (1) A general meeting shall be called if shareholders jointly representing at least one-twentieth of the capital stock request such meeting in writing, stating the purpose and the reasons of such meeting; such request shall be addressed to the managing board. The articles may provide that the right to request a general meeting shall require another form and the holding of a lower portion of the capital stock. 142 (2), sentence 2, shall apply mutatis mutandis.

5 (2) In the same manner shareholders jointly representing at least one-twentieth of the capital stock or a proportionate ownership of at least EUR 500,000 may request that items be placed on the agenda and be disclosed. Each request must be accompanied by supporting information or a formal resolution proposal. The request within the meaning of sentence 1 must be received by the company no later than 24 days, in the case of stock exchange listed companies no later than 30 days, prior to the meeting, excluding the day of receipt. (3) If any such demand is not complied with, the court may authorise the shareholders, who have made the demand, to call a shareholders meeting or publish such items. At the same time, the court may appoint the chairman of the meeting. The notice of the meeting or the publication shall refer to such authorisation. An appeal may be made against such decision. (4) he company shall bear the costs of the shareholders meeting and, in the case of (3), also the court costs if the court has granted such motion. 142 (2) sentence 2 AktG (excerpt) (2) ( ) The petitioners must furnish evidence that they have been the holders of the shares for at least three months prior to the date of the shareholders meeting and will continue to hold the shares until a decision on the petition is rendered. ( ) 124 (1) AktG (excerpt) (1) If the minority has requested pursuant to 122 (2) that items be added to the agenda, these items shall be published either upon calling the meeting or immediately following receipt of the request. 121 (4) shall apply analogously; moreover, 121 (4a) shall apply analogously to listed companies. Publication and submission shall be made in the same way as applicable for calling the meeting. 70 AktG Computation of the Period of Shareholding If the exercise of rights arising from a share requires that the shareholder has been the holder of such share for a certain period of time, the right to demand transfer of title from a credit institution, a financial services institute, or an enterprise operating under 53 (1) sentence 1 or 53b (1) sentence 1 or (7) of the Banking Act shall be deemed equivalent to ownership. The period during which the share was owned by a predecessor shall be attributed to the shareholder, provided that he has acquired the share without consideration from his fiduciary, as a successor in legal interest by operation of law, in connection with the liquidation of a community of interest, or as a result of a transfer of assets pursuant to 14 of the Insurance Supervision Act or 14 of the Building Loan Associations Act. 126 AktG Motions by shareholders (1) Motions by shareholders, including shareholders' names, supporting information and, if any, management's discussion shall be made available to the eligible persons referred to in 125 (1) through (3) under the conditions specified therein, provided that the shareholder submitted at least 14 days prior to the meeting a counterproposal to a proposal of the managing board and the supervisory board regarding a specific item on the agenda, together with supporting information, to the address designated for this purpose in the general meeting notice. The day of receipt shall not be counted. In the case of stock exchange listed companies, the required

6 availability shall be shall be provided over the Internet website of the company. 125 (3) shall apply mutatis mutandis. (2) A counterproposal and supporting information need not be made accessible if: 1. the managing board would by reason by such accessibility become criminally liable; 2. the counterproposal would result in a resolution of the general meeting that would be illegal or would violate the articles; 3. the reasons contain statements which are manifestly false or misleading in material respects or which are libelous; 4. a counterproposal of such shareholder based on the same facts has already been made available with respect to a general meeting of the company pursuant to 125; 5. the same counterproposal of such shareholder based on essentially identical supporting information has already been made available pursuant to 125 to at least two general meetings less than one-twentieth of the capital stock represented has voted in favor of such counterproposal; 6. the shareholder indicates that he/she will neither attend nor be represented at the general meeting; or 7. within the past two years at two general meetings the shareholder has failed to make or cause to be made on his/her behalf a counterproposal communicated by him/her. The supporting information need not be made accessible if it exceeds a total of 5,000 characters. (3) If several shareholders make counterproposals for resolution in respect of the same subject matter, the managing board may combine such counterproposals and the respective supporting information. 127 AktG Election nominations by shareholders 126 shall apply mutatis mutandis to a nomination by a shareholder for the election of a member of the supervisory board or external auditors. Such nomination need not be supported by a statement of the reasons therefore. The managing board need not make such nomination available even if it fails to contain information pursuant to 124 (3), sentence 3 1, and 125 (1), sentence (3) sentence 4 AktG (excerpt) 2 (3) ( ) The proposal for the election of members of the supervisory board or auditors shall state their name, profession and place of residence. ( ) 125 (1) through (3) AktG (excerpt) (1) The management board shall, at least 21 days before the meeting, communicate to those credit institutions and shareholders associations which have exercised voting rights on behalf of shareholders in the preceding shareholders meeting or which have requested such communication and the notice of the meeting. The date of notice shall not be taken into account. If the agenda is to be amended pursuant to 122 (2), such amended agenda shall be communicated in the case of listed companies. Such communication shall point out that voting right may be exercised by a proxy holder or a shareholders association. In case of listed 1 This is he actual wording of 127 AktG although a referral to 124 (3) sentence 4 AktG would be correct. 2 The excerpt reproduced here is 124 (3) sentence 4 AktG, to which the text in 127 sentence 3 AktG should in fact refer.

7 companies details on the membership in other supervisory boards to be established pursuant to statutory provisions must be added to any nomination for the election of supervisory board members; details on their membership in comparable domestic and foreign controlling bodies of enterprises should be added. (2) The management board shall provide the same information to shareholders who make such request or are registered as shareholders in the company s share register at the beginning of the 14th day before the meeting. The articles may limit transmission to electronic communication. (3) Each member of the supervisory board may request that the management board send the same communication to him. 131 Right to obtain information (1) Each shareholder shall upon request be provided with information at the general meeting by the managing board regarding the company's affairs, to the extent that such information is necessary to permit a proper evaluation of the relevant item on the agenda. The duty to provide information shall also extend to the company's legal and business relations with any affiliated enterprise. If a company makes use of the simplified procedure pursuant to 266 (1), 3 rd sentence, 276 or 288 of the German Commercial Code, each shareholder may request that the annual financial statements be presented to him at the general meeting on such annual financial statements in the form that would have been used if such provisions on the simplified procedure were not applied. The duty of the managing board of a parent company to provide information ( 290 (1) and (2) of the German Commercial Code) at the general meeting at which the consolidated financial statements and management's discussion and analysis of these statements are presented also extend to the consolidated group's position and the affiliated enterprises included in the consolidated financial statements. (2) The information provided shall comply with the principles of conscientious and accurate accounting. The articles or the bylaws pursuant to 129 may authorize the chairman of the meeting to reasonably limit a shareholder's time to speak and ask questions and may provide relevant details in this connection. (3) The managing board may refuse to provide information: 1. to the extent that providing such information is, according to the sound business judgment, likely to cause material damage to the company or an affiliated enterprise; 2. to the extent that such information relates to tax valuations or the amount of certain taxes; 3. with regard to the difference between the value at which items are shown in the annual balance sheet and the higher market value of such items, unless the general meeting is to approve the annual financial statements; 4. with regard to the methods of classification and valuation, if disclosure of such methods in the notes suffices to provide a clear view of the actual condition of the company's assets, financial position and profitability within the meaning of 264 (2) of the German Commercial Code; the foregoing 4 of 4 shall not apply if the general meeting is to approve the annual financial statements; 5. if provision thereof would render the managing board criminally liable; 6. insofar as, in the case of credit institutions or financial services institutions, information need not be given on methods of classification and valuation applied and setoffs made in the annual financial statements and management's discussion and analysis thereof; 7. if the information is continuously available on the Internet website of the company for at least seven days prior to the beginning and during the general meeting. The provision of information may not be refused for other reasons.

8 (4) If information has been provided to a shareholder by reason of his/her status as a shareholder outside a general meeting, such information shall upon request be provided to any other shareholder at the general meeting, even if such information is not necessary to permit a proper evaluation of an item on the agenda. The managing board may not refuse to provide such information on the grounds of subsection (3), 1st sentence, no. 1 through 4. Sentences 1 and 2 shall not apply if a subsidiary ( 290 (1) and (2) of the German Commercial Code), a joint venture ( 310 (1) of the German Commercial Code) or an associated company ( 311 (1) of the German Commercial Code) for purposes of the inclusion of the company into the consolidated financial statements of the parent company and such information is needed for such purposes. (5) A shareholder who has been denied information may request that his/her question and the reason for which the information was denied be recorded in the minutes of the meeting. 293g (3) AktG (excerpt) (3) Each shareholder shall also receive in the shareholders meeting, on request, information about all matters relating to the other contracting party that are relevant to the conclusion of the contract.