Mercedes 2012 Annual Report Download - page 76

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3 | Management Report | Business and General Conditions
Authorization of the Board of Management to issue or
buy back shares. By resolution of the Annual Shareholders’
Meeting of April 14, 2010, the Board of Management was
authorized, with the consent of the Supervisory Board, during the
period until April 13, 2015 to acquire its own shares for all legal
purposes, in particular for certain defined purposes, up to
a maximum of 10% of the share capital at the time of the reso-
lution of the Annual Shareholders’ Meeting. The purchase of the
Company’s own shares is allowed, inter alia, for the following
purposes: for the purpose of canceling them, offering them to
third parties in connection with a corporate merger or acquisi-
tion, disposing of them in another way than through the stock
exchange, offering them to all shareholders, or serving the
stock option plan created in or before 2004. Own shares in
a volume of up to 5% of the share capital existing at the time of
the resolution of the Annual Shareholders’ Meeting can also be
acquired with the application of derivative financial instruments,
whereby the period of the individual option may not exceed
18 months. No use has yet been made of this authorization.
By resolution of the Annual Shareholders’ Meeting held on
April 8, 2009, the Board of Management was authorized with
the consent of the Supervisory Board to increase the share
capital of Daimler AG by up to €1 billion during the period until
April 7, 2014 by issuing new registered shares of no par value
in exchange for cash or non-cash contributions, wholly or in
partial amounts, on one or several occasions (Approved Capi-
tal 2009). Inter alia, the Board of Management was also autho-
rized, under certain circumstances, within certain limits and
with the consent of the Supervisory Board, to exclude share-
holders’ subscription rights. No use has yet been made of
Approved Capital 2009.
Furthermore, the Board of Management was authorized by
resolution of the Annual Shareholders’ Meeting of April 14, 2010,
– with the consent of the Supervisory Board during the period
until April 13, 2015 to issue convertible bonds and/or bonds
with warrants or a combination of those instruments, once or
several times, in a total nominal amount of up to €10 billion
with a maximum term of ten years, and
– to grant the owners/lenders of those bonds conversion or
option rights to new, registered shares of no par value in
Daimler AG with a corresponding amount of the share capital
of up to €500 million, in accordance with the terms and
conditions of those convertible bonds or bonds with warrants.
Inter alia, the Board of Management was also authorized, under
certain circumstances, within certain limits and with the consent
of the Supervisory Board, to exclude shareholders’ subscription
rights to the bonds with conversion or warrant rights to shares
in Daimler AG. The bonds can also be issued by direct or indirect
majority-owned subsidiaries of Daimler AG.
Accordingly, the share capital was conditionally increased
by up to €500 million (Conditional Capital 2010). No use has yet
been made of this authorization to issue convertible bonds
and/or bonds with warrants.
Material agreements taking effect in the event of a change
of control. Daimler AG has concluded various material agree-
ments, as listed below, that include clauses regulating the
possible event of a change of control, as can occur as a result
of a takeover bid:
– A non-utilized syndicated credit line in a total amount of €7
billion, which the lenders are entitled to terminate if Daimler AG
becomes a subsidiary of another company or comes under
the control of one person or several persons acting jointly.
– Credit agreements with lenders for a total amount of €1.5
billion, which the lenders are entitled to terminate if Daimler
AG becomes a subsidiary of another company or comes
under the control of one person or several persons acting
jointly.
– Guarantees and securities for credit agreements of consolidated
subsidiaries for a total amount of €610 million, which the
lenders are entitled to terminate if Daimler AG becomes
a subsidiary of another company or comes under the control
of one person or several persons acting jointly.
– An agreement concerning the acquisition of a majority (50.1%)
of AFCC Automotive Fuel Cell Cooperation Corp., which has the
purpose of further developing fuel cells for automotive appli-
cations and making them marketable. In the case of a change
of control of Daimler AG, the agreement provides for the
right of termination by the other main shareholder, Ford Motor
Company, as well as for a put option for the minority share-
holder, Ballard Power Systems. Control as defined by this
agreement is the beneficial ownership of the majority of the
voting rights and the resulting right to appoint the majority
of the members of the Board of Management.
– A master cooperation agreement on wide-ranging strategic
cooperation with Renault S.A., Renault-Nissan B.V. and Nissan
Motor Co. Ltd. in connection with cross-shareholdings. The
Renault-Nissan Alliance received an equity interest of 3.1%
in Daimler AG and Daimler AG received equity interests of
3.1% in each of Renault S.A. and Nissan Motor Co. Ltd. In the
case of a change of control of one of the parties to the agree-
ment, each of the other parties has the right to terminate the
agreement. A change of control as defined by the master
cooperation agreement occurs if a third party or several third
parties acting jointly acquires, legally or economically,
directly or indirectly, at least 50% of the voting rights in the
company in question or is authorized to appoint a majority
of the members of the managing board. Under the master coop-
eration agreement, several cooperation agreements were
concluded between Daimler AG on the one side and Renault
and/or Nissan on the other concerning a new architecture
for small cars and the shared use of fuel-efficient diesel and
gasoline engines and transmissions, as well as the develop-
ment and supply of a small van, which provide for the right of
termination for a party to the agreement in the case of
a change of control of another party. A change of control is
deemed to occur at a threshold of 50% of the voting rights
or upon authorization to appoint a majority of the members
of the managing board. In the case of termination of cooper-
ation in the area of the development of small cars due to
a change of control in the early phase of the cooperation,
the party affected by the change of control would be obliged
to bear its share of the costs of the development of shared
components even if the development were terminated for
that party.