BMW 2013 Annual Report Download - page 83

83 COMBINED 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.
System 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 Scheme 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 decided upon by the shareholders at the Annual
General Meeting (§ 119 (1) no. 5, § 179 (1) AktG). The
Supervisory Board is authorised to approve amend-
ments to the Articles of Incorporation which only affect
its wording (Article 14 no. 3 of the Articles of Incor-
poration); 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 vote (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 spe-
cified in § 71 AktG, e. g. to avert serious and imminent
damage to the Company and / or to offer shares to persons
employed or previously employed by BMW AG
or one
of its affiliated companies. In accordance with
Article 4
no. 5 of the Articles of Incorporation, the Board of
Management is authorised – with the approval of the
Supervisory Board – to increase BMW AG’s share capital
during the period until 13 May 2014 by up to €
2,936,375
for the purposes of an Employee Share Scheme 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. No conditional capital is in place at
the reporting date.
Significant agreements entered into by the Company
subject to control change clauses in the event of a take-
over bid
The 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 family of small (1 to 1.6 litre) petrol-driven engines
entitles each of the cooperation partners to give ex-
traordinary notification of termination in the event of
a competitor acquiring control over the other contrac-
tual
party and if any concerns of the other contractual
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 guarantor for all obligations arising
from the joint venture agreement relating to BMW
Brilliance Automotive Ltd. in China. This agreement
grants an extraordinary right of termination 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 or the other
party is merged with another legal entity. The termi-