Disclosures required under Sections 289(4) and 315(4) of the Handelsgesetzbuch (HGB – German commercial code) and explanatory report
Share capital, voting rights and transfer of shares
As at 31 December 2007, the company’s share capital totalled €1,207,470,598 and is divided into the same number of no-par value registered shares. Each share carries the same statutory rights and obligations, and entitles the holder to one vote at the Annual General Meeting (AGM). No individual shareholder or group of shareholders is entitled to special rights, particularly rights granting control powers.
The exercise of voting rights and the transfer of shares is based on the general legal requirements and the company’s Articles of Association, which do not restrict either of these activities. Article 19 sets out the requirements that must be met in order to attend the AGM as a shareholder and exercise a voting right. Only persons entered in the share register shall be considered shareholders in the eyes of the company. The Board of Management is not aware of any agreements between shareholders which would limit voting rights or the transfer of shares.
Shareholdings exceeding 10% of voting rights
KfW Bankengruppe is our largest shareholder, holding around 30.5% of the share capital. The Federal Republic of Germany holds an indirect stake in Deutsche Post AG via KfW. According to the notifications we have received pursuant to Sections 21 ff. of the Wertpapierhandelsgesetz (WpHG – German securities trading act), KfW and the German government are the only shareholders who own more than 10% of the share capital, either directly or indirectly.
Appointment and replacement of members of the Board of Management
The members of the Board of Management are appointed and replaced in accordance with the relevant legal provisions (Sections 84, 85 of the Aktiengesetz (AktG – German stock corporation act), Section 31 of the Mitbestimmungsgesetz (MitbestG – German co-determination act)). The Articles of Association do not contain any special provisions in this respect. According to Section 84 of the AktG and Section 31 of the MitbestG, appointments by the Supervisory Board shall be for a maximum term of five years. Re-appointment or extension of the term of office, for a maximum of five years in each case, is admissible. Details of changes on the Board of Management during the year under review are reported in Organisation and management structure.
Amendments to the Articles of Association
In accordance with Section 119(1), No. 5 and Section 179(1), sentence 1 of the AktG, amendments to the Articles of Association are adopted by resolution of the AGM. In accordance with Article 21(2) of the Articles of Association in conjunction with Sections 179(2) and 133 of the AktG such amendments generally require a simple majority of the votes cast and a simple majority of the share capital represented. In such instances where a greater majority is required by law for amendments to the Articles of Association, that majority is decisive.
AGM resolutions were passed on 5 June 2003 (Contingent Capital II), 18 May 2005 (2005 authorised capital) and 8 May 2007 (Contingent Capital III) authorising the Supervisory Board to amend the wording of the Articles of Association in accordance with the respective share issue or utilisation of authorised capital, and following expiry of the respective authorisation period.
Authority of the Board of Management to issue and buy back shares
The Board of Management is authorised, subject to the approval of the Supervisory Board, to issue up to 174,796,228 new, no-par value registered shares by or before 17 May 2010 in exchange for non-cash contributions and thereby increase the company’s share capital by up to €174,796,228 (2005 authorised capital, Article 5(2) of the Articles of Association). The shareholders’ pre-emptive subscription rights have been disapplied. The use of authorised capital as acquisition currency is standard business practice in Germany. The 2005 authorised capital allows the company to acquire companies and shareholdings flexibly, without recourse to the capital market. The authorised capital is equivalent to less than 15% of the share capital.
New, no-par value registered shares may only be issued from Contingent Capital II (Article 5(3) of the Articles of Association) in order to service the subscription rights granted in accordance with the 2003 Stock Option Plan. To this end, the company’s share capital has been contingently increased by up to €13,184,482. Within the context of the 2003 Stock Option Plan, up to 13,184,482 million shares in Deutsche Post AG are still available for subscription. Under this plan, the issue of new stock options is no longer possible.
An AGM resolution was passed on 8 May 2007, authorising the Board of Management, subject to the consent of the Supervisory Board, to issue bonds with warrants, convertible bonds and/or income bonds (hereinafter referred to collectively as “bonds with warrants and/or convertible bonds”), or a combination thereof, with a total nominal value of up to €1 billion, either once or several times, by or before 7 May 2012, thereby granting option and/or conversion rights on new shares with up to €56 million of the share capital. To this end, the share capital is contingently increased by up to €56 million (Contingent Capital III, Article 5(4) of the Articles of Association). When issuing bonds with warrants and/or convertible bonds, shareholder subscription rights may only be disapplied subject to the terms of the aforementioned resolution and pending the consent of the Supervisory Board. Further details may be found in the motion adopted by the AGM under agenda item 7 of the AGM on 8 May 2007.
The authorisation to issue bonds with warrants and/or convertible bonds is standard business practice amongst publicly listed companies in Germany. It allows the company to finance its activities flexibly and promptly, and gives it the financial leeway to take advantage of favourable market situations at short notice, for example, by offering company shares or bonds with warrants/convertible bonds as a consideration within the context of company mergers, and when acquiring companies or shareholdings in companies. To date, the Board of Management has not made use of this authorisation.
In addition, the AGM of 8 May 2007 authorised the company to buy back shares up to a level of 10% of the share capital existing as of that date, by or before 31 October 2008. The general proviso is that at no time should the shares acquired in this way, together with the shares already held by the company, account for more than 10% of the share capital. Shares may be purchased on the stock exchange, in the form of a public purchase offer addressed to all shareholders, or by some other means in accordance with the provisions of Section 53a of the AktG. The authorisation permits the Board of Management to exercise it for every purpose authorised by law, particularly to redeem its own shares without a further AGM resolution, subject to the consent of the Supervisory Board. Details may be found in the motion adopted by the AGM under agenda item 6 of the AGM of 8 May 2007.
It is standard business practice amongst publicly listed companies in Germany for the AGM to authorise the company to buy back shares on an annually recurring basis. On 6 May 2008, the Board of Management and the Supervisory Board will propose to the AGM that this authority be granted for a further year.
Any public offer to acquire shares in the company is governed solely by the law and the Articles of Association, including the provisions of the Wertpapiererwerbs- und Übernahmegesetz (WpÜG – German securities acquisition and takeover act). The AGM has not authorised the Board of Management to undertake actions within its sphere of competence to block possible takeover bids.
