BMW 2011 Annual Report Download - page 47

47 COMBINED GROUP AND COMPANY MANAGEMENT REPORT
The voting power percentages disclosed above may have
changed subsequent to the stated date if these changes
were not required to be reported to the Company.
Due to the fact that the Company’s shares are issued to
bearer, the Company is generally only aware of changes
in shareholdings if such changes are subject to manda-
tory notification rules.
Shares with special rights which confer control rights
There are no shares with special rights which confer
control rights.
Nature of control over voting rights when employees
participate in capital and do not exercise their control
rights directly
The shares issued in conjunction with the employee share
programme are shares of non-voting preferred stock
which are transferred solely and directly to employees.
Like all other shareholders, employees exercise their
control rights over these shares on the basis of relevant
legal provisions and the Company’s Articles of Incor-
poration.
Statutory regulations and Articles of Incorporation
provisions with regard to the appointment and removal
of members of the Board of Management and changes
to the Articles of Incorporation
The appointment or removal of members of the Board
of Management is based on the rules contained in
§ 84 et seq. AktG in conjunction with § 31 of the German
Co-Determination Act (MitbestG).
Amendments to the Articles of Incorporation must
comply with § 179 et seq. AktG. All amendments must
be resolved by the shareholders at the Annual General
Meeting (§ 119 (1) no. 5, § 179 (1) AktG). The Super-
visory Board is authorised to approve amendments to
the Articles of Incorporation which only affect its
wording (Article 14 no. 3 of the Articles of Incorporation);
it is also authorised to change Article 4 of the Articles
of Incorporation in line with the relevant utilisation of
Authorised Capital 2009. Resolutions are passed at the
Annual General Meeting by simple majority of shares
unless otherwise explicitly required by binding provisions
of law or, when a majority of share capital is required,
by simple majority of shares represented in the votes cast
(Article 20 of the Articles of Incorporation).
Authorisations given to the Board of Management
in particular with respect to the issuing or buying back
of shares
The Board of Management is authorised to buy back
shares and sell repurchased shares in situations specified
in § 71 AktG, e. g. to avert serious and imminent damage
to the Company and /or to offer shares to persons em-
ployed or previously employed by BMW AG or one of
its affiliated companies. In accordance with Article 4 (5)
of the Articles of Incorporation, the Board of Manage-
ment is authorised – with the approval of the Super-
visory Board – to increase BMW AG’s share capital during
the period until 13 May 2014 by up to € 3,624,790 for the
purposes of an employee share programme by issuing
new non-voting shares of preferred stock, which carry
the same rights as existing non-voting preferred stock,
in return for cash contributions (Authorised Capital
2009). Existing shareholders may not subscribe to the
new shares. There is no conditional capital in place at the
reporting date.
Significant agreements entered into by the Company
subject to control change clauses in the event of a
takeover bid
BMW AG is party to the following major agreements
which contain provisions for the event of a change in
control or the acquisition of control as a result of a take-
over bid:
– An agreement concluded with an international con-
sortium of banks relating to a syndicated credit line
(which was not being utilised at the balance sheet
date) entitles the lending banks to give extraordinary
notice to terminate the credit line (such that all out-
standing amounts, including interest, would fall due
immediately) if one or more parties jointly acquire
direct or indirect control of BMW AG. The term “con-
trol” is defined as the acquisition of more than 50 %
of the share capital of BMW AG, the right to receive
more than 50 % of the dividend or the right to direct
the affairs of the Company or appoint the majority of
members of the Supervisory Board.
– A cooperation agreement concluded with Peugeot SA
relating to the joint development and production of
a new range of small (1 to 1.6 litre) petrol-driven en-
gines entitles each of the cooperation partners to give
extraordinary notification of termination in the event
of a competitor acquiring control over the other con-
tractual party and if any concerns of the other
con-
tractual party concerning the impact of the change
of control on the cooperation arrangements are not
allayed during the subsequent discussion process.
– BMW AG acts as the guarantor for all of the
obliga-
tions arising from the joint venture agreement relating
to BMW Brilliance Automotive Ltd. in China. This
agreement grants an extraordinary right of termina-
tion to either joint venture partner in the event that,
either directly or indirectly, more than 25 % of the
shares of the other party are acquired by a third party