Statutory takeover-related disclosures under the terms of Arts. 289(4) and 315(4) HGB
Capital stock breakdownVossloh AG’s capital stock of €37,825,168.86 is divided into 14,795,920 no-par bearer shares of common stock entitling to one vote each. In the course of 2010, options were exercised under the stock option programs, raising the capital stock by €127.82.
Restraints on voting rights or share transfer
One share entitles to one vote at the general meeting, the same rights attaching to all Vossloh AG shares. Share transfer or assignment is not subject to any restraint.
Voting right exercise and share transfer by members of the Vossloh Family Pool (“Familiengemeinschaft Vossloh GbR”) have been pooled by contractual agreement.
Direct or indirect shareholdings of 10+ percent
The Executive Board is aware that a direct voting interest above 10 percent in the Company’s capital stock exists: The Vossloh Family Pool has notified Vossloh AG that, as of February 2011, its members owned a stake of nigh 31 percent in the Company’s capital stock.
Shares with controlling rights, etc.
No such shares exist at Vossloh AG.
Voting control of employee shareholdings
Vossloh-shareholding employees exercise their control rights like any other stockholder, too, in accordance with the law and Vossloh’s bylaws.
Appointment/removal of Executive Board members; amendment of the bylaws
Vossloh AG’s Executive Board members are appointed or removed in accordance with the provisions of Arts. 84, 85 AktG in conjunction with Art. 7 of the bylaws. Pursuant to Art. 84(1) AktG, Executive Board members are appointed by the Supervisory Board for a maximum term of five years, their reappointment or the renewal of their term of office being permitted. The appointment of an Executive Board member may be revoked in the cases set out in Art. 84(3) AktG.
While, according to Art. 179(1) AktG, the bylaws may be amended by vote of the general meeting, any wording-only amendment may also be delegated to the Supervisory Board. In conformity with Art. 21(2) of the bylaws but subject to overriding statutory provisions to the contrary, the general meeting shall pass its resolutions with the simple majority of votes cast. Where the law prescribes a stock ownership majority in addition to a voting majority, the simple majority of the capital stock represented at the vote shall suffice unless the provisions of the law or Vossloh AG’s bylaws prescribe otherwise. Art. 27 of the bylaws authorizes the Supervisory Board to amend the bylaws where only their wording is involved.
Art. 4(8) of the bylaws further entitles the Supervisory Board to update the bylaws accordingly after the capital stock has been increased by utilizing authorized or contingent capital.
Stock issuance or repurchase authority of the Executive Board
Art. 4 of the bylaws specify the Executive Board’s powers to issue new stock while the authority to repurchase treasury stock is based on the AGM resolution of May 19, 2010.
(a) Authorized capital
The provisions of Art. 4(2) of the bylaws authorize the Executive Board, subject to the Supervisory Board’s approval, to increase the capital stock on or before May 19, 2014, by an aggregate maximum of €7,500,000 by issuing once or several times new no-par bearer shares of common stock against cash and/or noncash contributions (“Authorized Capital”) while duly granting stockholders their statutory subscription right. However, after first obtaining approval from the Supervisory Board, the Executive Board may exclude this subscription right:
(i) for fractions entailed by the subscription ratio;
(ii) in order to (a) grant to holders of conversion rights, options and/or warrants which are outstanding when the Authorized Capital is utilized or (b) satisfy conversion obligations ensuing from convertible and/or warrant bonds previously floated or issuable by the Company or any of its wholly-owned subsidiaries, the right to subscribe for new shares to the extent which they would be entitled to as stockholders upon exercise of their conversion rights and/or options or upon satisfaction of their conversion obligations;
(iii) if (a) the new stock is issued against cash contributions at a price that is not significantly below the stock market price current for same-class Vossloh stock at the time at which the final issuance price is fixed, and (b) the newly issued stock exceeds an aggregate ten percent of the capital stock neither at the effective date nor at the date of exercise of this authority. Any such shares are counted toward this capital ceiling as are disposed of ex rights (i.e., without granting a subscription right to stockholders) during the validity period of this authority by applying the provisions of Art. 186(3) clause 4 AktG. Shares issued or issuable to service convertible and/or warrant bonds or satisfy conversion obligations shall also be counted toward said 10-percent ceiling provided that the bonds are issued ex rights during the validity period of this authority in application of the provisions of Art. 186(3) clause 4 AktG;
(iv) for any capital increase against noncash contributions.
The Executive Board is authorized, subject to the Supervisory Board’s approval, to stipulate all further details of the capital increase, as well as all stock issuance terms and conditions.
(b) Contingent/conditional capital
(i) Pursuant to Art. 4(3) of the bylaws, the Company’s capital stock has been conditionally raised by €6,979,134.18 by issuing 2,730,000 bearer shares of common stock. This contingent capital increase will be implemented only to the extent that, under the warrant bond issues floated by Vossloh AG and/or its (directly or indirectly) wholly owned non-German subsidiaries on or before June 28, 1999, the warrant holders exercise their right to subscribe for common stock. The new common stock ranks for dividend as from the fiscal year in which it is created by option exercise.
(ii) Pursuant to Art. 4(4) of the bylaws, the Company’s capital stock has been conditionally increased by €356,986.54 by issuing 139,641 bearer shares of common stock. This contingent capital increase is implemented only to the extent that the holders of stock options, which are granted to employees under an SOP authorized by the annual stockholders’ meetings of June 25, 1998, and/or June 3, 2004, have exercised or will exercise their options. The new common stock ranks as from the fiscal year in which it is created by option exercise for the dividend of the fiscal year on whose profit appropriation the succeeding fiscal year’s AGM votes.
(iii) Pursuant to Art. 4(5) of the bylaws, the Company’s capital stock has been conditionally raised by €1,468,225.77 by issuing 574,320 bearer shares of common stock. This contingent capital increase is implemented only to the extent that the holders of stock options, which are granted to officers, executives and other management staff under a long-term incentive plan (LTIP) authorized by the annual stockholders’ meetings of June 25, 1998, and June 3, 2004, have exercised or will exercise their options. The new common stock ranks as from the fiscal year in which it is created by option exercise for the dividend of the fiscal year on whose profit appropriation the succeeding fiscal year’s AGM votes.
(iv) Pursuant to Art. 4(6) of the bylaws, the Company’s capital has been conditionally raised by an aggregate €3,782,500 by issuing up to 1,479,585 no-par bearer shares of stock in order to grant new no-par bearer shares to the holders or creditors of such convertible bonds, warrant bonds, participating rights and/or income bonds (or any combination of such instruments) as are issued or floated by Vossloh AG or any of its (directly or indirectly) wholly owned subsidiaries by dint of the authority conferred by the AGM of May 19, 2010, according to Agenda Item 8. The new no-par bearer shares will be issued at a conversion or option price to be determined in accordance with the aforesaid AGM resolution. The conditional capital increase shall be implemented only to the extent that (i) conversion rights or equity warrant options are exercised, (ii) the bondholders, warrant owners or creditors subject to a conversion obligation actually meet their conversion obligations, (iii) no cash compensation is paid in lieu, or (iv) treasury shares or new shares issued by utilizing authorized capital are used. The newly issued no-par bearer shares rank for dividend as from the beginning of the fiscal year in which they are created by conversion or option exercise or by fulfillment of conversion obligations. The Executive Board is authorized to specify all further details of the conditional capital increase and its implementation.
(c) Repurchase of treasury stock
According to the AGM resolution of May 19, 2010, and pursuant to Art. 71(1) No. 8 AktG, the Company is authorized on or before May 18, 2015, to acquire treasury stock equivalent to an aggregate maximum of ten percent of Vossloh AG's then capital stock. At the Executive Board’s discretion, treasury stock may be acquired either through a stock market or by public repurchase offer or public invitation to bid.
If shares are acquired through a stock market, the amount paid by the Company for each Vossloh share may neither be more than ten percent above or below the Vossloh stock price as quoted at the trading day’s opening auction of the Xetra trade at the Frankfurt Stock Exchange. In the event that the stock is acquired by public repurchase offer or public invitation to bid, the purchase price offered or the limits of the purchase price spread per share shall not be more than ten percent above or below the average closing prices as quoted by the Xetra system on the three trading days preceding publication of either the repurchase offer or the public invitation to bid. In the event that, subsequent to the publication of either the repurchase offer or the public invitation to bid, the governing share price differs considerably, the repurchase offer or invitation to bid may be adjusted accordingly on the basis of the average closing prices as quoted by the Xetra system (or any successor system in lieu of and replacing the Xetra system) on the three trading days prior to publication of any such stock price adjustment. The repurchase offer or invitation to bid may include further stipulations. If the shares offered exceed the number required (in the case of a repurchase offer), or if not all bids out of several equivalent ones are accepted (in the case of an invitation to bid), offer or bid acceptance shall be prorated (i.e., based on proportionate allocation). The purchase terms may provide for the preferential acceptance of small lots of 100 shares or less per stockholder.
The Executive Board is authorized, after first obtaining Supervisory Board approval, to use treasury shares for any lawful purposes, including (without being limited to) to dispose of the treasury stock in a form other than through a stock market or by offering them to all Vossloh stockholders, however, provided that the previously acquired shares of treasury stock are sold at a price that is not significantly below the stock market price then current for same-class Vossloh stock.
The Executive Board is further authorized, after first obtaining Supervisory Board approval, to sell treasury stock ex rights to third parties in return for noncash contributions, including (without limitation) in connection with business combinations or when acquiring other enterprises or equity interests therein. The treasury stock may be used to settle obligations under convertible and/or warrant bonds issued by the Company and/or any of its wholly-owned subsidiaries.
Moreover, the Executive Board is authorized to redeem and effectively withdraw treasury stock with the Supervisory Board's approval, however, without requiring another vote by the general meeting.
At December 31, 2010, the Company held 1,470,630 shares of treasury stock.
Agreements upon any change of control, etc.:
No agreements have been made with third parties that are contingent on a change of control in the wake of a takeover bid.
Compensation agreements upon change of control:
No arrangements for post-takeover indemnification or other compensation of Executive Board members or Vossloh employees upon a change of control have been made either.