Disclosure of shareholders' rights pursuant to section 122 (2), section 126 (1), section 127, and section 131 (1) AktG at the Annual Shareholders’ Meeting on August 31, 2012
Supplementary requests (section 122 (2) AktG)
Shareholders whose shares together make up a twentieth of the share capital or a pro-rata amount of €500,000.00 can specify that items are added to the agenda and published. Justification or a draft resolution must be provided for each new item.
The Company must receive supplementary requests in writing at least 30 days before the Annual Shareholders' Meeting; this period does not include the day of receipt of the request and the day of the meeting. The Company must therefore receive any supplementary requests by midnight CEST on Tuesday, July 31, 2012. Supplementary requests received after this time will not be taken into consideration. Supplementary requests are taken into consideration only if the applicants prove that they have been the holders of the shares making up the required minimum shareholding in the three months before the day of the Annual Shareholders' Meeting.
Any supplementary requests should be submitted to the following address: MEDION AG, Investor Relations, Am Zehnthof 77, 45307 Essen, Germany.
Motions by shareholders (section 126 (1) AktG)
At the Annual Shareholders' Meeting, every shareholder is entitled to file a counter-motion, along with justification for it, to the proposals of the Management Board and/or Supervisory Board for a particular agenda item. Counter-motions received by the Company at the address below at least 14 days before the meeting (this period does not include the day of receipt of the counter-motion and the day of the meeting), i.e. by midnight CEST on Thursday, August 16, 2012 at the latest, will be made available without delay, along with the name of the shareholder, justification for the counter-motion, and any responses from the Management, on the internet at www.medion.com/agm (see section 126 (1) sentence 3 AktG).
Any counter-motions (including the justification) must be submitted to the following address: MEDION AG, Investor Relations, Am Zehnthof 77, 45307 Essen, Germany, fax: +49 (0)201 8383 6510, email: HV2012@medion.com. Counter-motions sent to a different address will not be taken into consideration.
Section 126 (2) AktG specifies the cases in which a counter-motion and its justification do not have to be made available on the internet. These are published on the Company's website at www.medion.com/agm.
This is without prejudice to the right of all shareholders to file counter-motions to the various agenda items during the Annual Shareholders' Meeting without submitting them to the Company by the deadline before the meeting.
Nominations by shareholders (section 127 AktG)
Any shareholder has the right to submit nominations for the election of the auditors (agenda item 10) during the Annual Shareholders' Meeting.
Nominations from shareholders received by the Company at the address below at least 14 days before the meeting (this period does not include the day of receipt of the nomination and the day of the meeting), i.e. by midnight CEST on Thursday, August 16, 2012 at the latest, will be made available without delay on the internet at www.medion.com/agm. Nominations from shareholders will be published only if they include the name, profession, and place of residence of the nominee or, in the case of nominations for the election of members of the Supervisory Board, details of the nominee's membership of other statutory supervisory boards (see section 127 sentence 3 in conjunction with section 124 (3) sentence 3 and section 125 (1) sentence 5 AktG). In contrast to counter-motions pursuant to section 126 (1) AktG, justification does not need to be provided for nominations. According to section 127 sentence 1 in conjunction with section 126 (2) AktG, there are other cases in which nominations do not have to be made available on the internet. These are published on the Company's website at www.medion.com/agm.
Any nominations must be submitted to the following address: MEDION AG, Investor Relations, Am Zehnthof 77, 45307 Essen, Germany, fax: +49 (0)201 8383 6510, email: HV2012@medion.com. Nominations sent to a different address will not be taken into consideration.
This is without prejudice to the right of all shareholders to make nominations for the election of the auditors (agenda item 10) during the Annual Shareholders' Meeting without submitting them to the Company by the deadline before the meeting.
Shareholders' right of information (section 131 (1) AktG)
In accordance with section 131 (1) AktG, the Management Board is, on request, required at the Annual Shareholders' Meeting to give all shareholders information about Company matters, provided that this information is necessary to be able to assess the agenda item properly. The Management Board's duty to give information also extends to legal and business relationships between the Company and an affiliated company plus the situation of the Group and of the companies covered by the consolidated financial statements (see section 131 (1) sentence 2 and sentence 4 AktG).
In certain circumstances, as specified in more detail in section 131 (3) AktG, the Management Board is permitted to refuse to give information. A detailed description of the circumstances in which the Management Board is permitted to refuse to give information is published on the Company's website at www.medion.com/agm.
The provisions of the German Stock Corporation Act (AktG) underlying these shareholder rights are as follows:
§ 122 AktG Convening a meeting at the request of a minority
(1) A general meeting shall be called if shareholders jointly representing at least one-twentieth of the capital stock request such meeting in writing, stating the purpose and the reasons of such meeting; such request shall be addressed to the managing board. The articles may provide that the right to request a general meeting shall require another form and the holding of a lower portion of the capital stock. § 142 (2), sentence 2, shall apply mutatis mutandis.
(2) In the same manner shareholders jointly representing at least one-twentieth of the capital stock or a proportionate ownership of at least EUR 500,000 may request that items be placed on the agenda and be disclosed. Each request must be accompanied by supporting information or a formal resolution proposal. The request within the meaning of sentence 1 must be received by the company no later than 24 days, in the case of stock exchange listed companies no later than 30 days, prior to the meeting, excluding the day of receipt.
(3) If any such demand is not complied with, the court may authorise the shareholders, who have made the demand, to call a shareholders’ meeting or publish such items. At the same time, the court may appoint the chairman of the meeting. The notice of the meeting or the publication shall refer to such authorisation. An appeal may be made against such decision.
(4) he company shall bear the costs of the shareholders’ meeting and, in the case of (3), also the court costs if the court has granted such motion.
§ 142 (2) sentence 2 AktG
(2) (…) The petitioners must furnish evidence that they have been the holders of the shares for at least three months prior to the date of the shareholders’ meeting and will continue to hold the shares until a decision on the petition is rendered. (…)
§ 124 (1) AktG
(1) If the minority has requested pursuant to § 122 (2) that items be added to the agenda, these items shall be published either upon calling the meeting or immediately following receipt of the request. § 121 (4) shall apply analogously; moreover, § 121 (4a) shall apply analogously to listed companies. Publication and submission shall be made in the same way as applicable for calling the meeting.
§ 70 AktG Computation of the Period of Shareholding
If the exercise of rights arising from a share requires that the shareholder has been the holder of such share for a certain period of time, the right to demand transfer of title from a credit institution, a financial services institute, or an enterprise operating under § 53 (1) sentence 1 or § 53b (1) sentence 1 or (7) of the Banking Act shall be deemed equivalent to ownership. The period during which the share was owned by a predecessor shall be attributed to the shareholder, provided that he has acquired the share without consideration from his fiduciary, as a successor in legal interest by operation of law, in connection with the liquidation of a community of interest, or as a result of a transfer of assets pursuant to § 14 of the Insurance Supervision Act or § 14 of the Building Loan Associations Act.
§ 126 AktG Motions by shareholders
(1) Motions by shareholders, including shareholders' names, supporting information and, if any, management's discussion shall be made available to the eligible persons referred to in § 125 (1) through (3) under the conditions specified therein, provided that the shareholder submitted at least 14 days prior to the meeting a counterproposal to a proposal of the managing board and the supervisory board regarding a specific item on the agenda, together with supporting information, to the address designated for this purpose in the general meeting notice. The day of receipt shall not be counted. In the case of stock exchange listed companies, the required availability shall be shall be provided over the Internet website of the company. § 125 (3) shall apply mutatis mutandis.
(2) A counterproposal and supporting information need not be made accessible if:
1. the managing board would by reason by such accessibility become criminally liable;
2. the counterproposal would result in a resolution of the general meeting that would be illegal or would violate the articles;
3. the reasons contain statements which are manifestly false or misleading in material respects or which are libelous;
4. a counterproposal of such shareholder based on the same facts has already been made available with respect to a general meeting of the company pursuant to § 125;
5. the same counterproposal of such shareholder based on essentially identical supporting information has already been made available pursuant to § 125 to at least two general meetings less than one-twentieth of the capital stock represented has voted in favor of such counterproposal;
6. the shareholder indicates that he/she will neither attend nor be represented at the general meeting; or
7. within the past two years at two general meetings the shareholder has failed to make or cause to be made on his/her behalf a counterproposal communicated by him/her. The supporting information need not be made accessible if it exceeds a total of 5,000 characters.
(3) If several shareholders make counterproposals for resolution in respect of the same subject matter, the managing board may combine such counterproposals and the respective supporting information.
§ 127 AktG Election nominations by shareholders
§ 126 shall apply mutatis mutandis to a nomination by a shareholder for the election of a member of the supervisory board or external auditors. Such nomination need not be supported by a statement of the reasons therefore. The managing board need not make such nomination available even if it fails to contain information pursuant to § 124 (3), sentence 31, and § 125 (1), sentence 5.
§ 124 (3) sentence 4 AktG
(3) (…) The proposal for the election of members of the supervisory board or auditors shall state their name, profession and place of residence. (…)
§ 125 (1) through (3) AktG
(1) The management board shall, at least 21 days before the meeting, communicate to those credit institutions and shareholders’ associations which have exercised voting rights on behalf of shareholders in the preceding shareholders’ meeting or which have requested such communication and the notice of the meeting. The date of notice shall not be taken into account. If the agenda is to be amended pursuant to § 122 (2), such amended agenda shall be communicated in the case of listed companies. Such communication shall point out that voting right may be exercised by a proxy holder or a shareholders’ association. In case of listed companies details on the membership in other supervisory boards to be established pursuant to statutory provisions must be added to any nomination for the election of supervisory board members; details on their membership in comparable domestic and foreign controlling bodies of enterprises should be added.
(2) The management board shall provide the same information to shareholders who make such request or are registered as shareholders in the company’s share register at the beginning of the 14th day before the meeting. The articles may limit transmission to electronic communication.
(3) Each member of the supervisory board may request that the management board send the same communication to him.
§ 131 Right to obtain information
(1) Each shareholder shall upon request be provided with information at the general meeting by the managing board regarding the company's affairs, to the extent that such information is necessary to permit a proper evaluation of the relevant item on the agenda. The duty to provide information shall also extend to the company's legal and business relations with any affiliated enterprise. If a company makes use of the simplified procedure pursuant to § 266 (1), 3rd sentence, § 276 or § 288 of the German Commercial Code, each shareholder may request that the annual financial statements be presented to him at the general meeting on such annual financial statements in the form that would have been used if such provisions on the simplified procedure were not applied. The duty of the managing board of a parent company to provide information (§ 290 (1) and (2) of the German Commercial Code) at the general meeting at which the consolidated financial statements and management's discussion and analysis of these statements are presented also extend to the consolidated group's position and the affiliated enterprises included in the consolidated financial statements.
(2) The information provided shall comply with the principles of conscientious and accurate accounting. The articles or the bylaws pursuant to § 129 may authorize the chairman of the meeting to reasonably limit a shareholder's time to speak and ask questions and may provide relevant details in this connection.
(3) The managing board may refuse to provide information:
1. to the extent that providing such information is, according to the sound business judgment, likely to cause material damage to the company or an affiliated enterprise;
2. to the extent that such information relates to tax valuations or the amount of certain taxes;
3. with regard to the difference between the value at which items are shown in the annual balance sheet and the higher market value of such items, unless the general meeting is to approve the annual financial statements;
4. with regard to the methods of classification and valuation, if disclosure of such methods in the notes suffices to provide a clear view of the actual condition of the company's assets, financial position and profitability within the meaning of § 264 (2) of the German Commercial Code; the foregoing 4 of 4 shall not apply if the general meeting is to approve the annual financial statements;
5. if provision thereof would render the managing board criminally liable;
6. insofar as, in the case of credit institutions or financial services institutions, information need not be given on methods of classification and valuation applied and setoffs made in the annual financial statements and management's discussion and analysis thereof;
7. if the information is continuously available on the Internet website of the company for at least seven days prior to the beginning and during the general meeting. The provision of information may not be refused for other reasons.
(4) If information has been provided to a shareholder by reason of his/her status as a shareholder outside a general meeting, such information shall upon request be provided to any other shareholder at the general meeting, even if such information is not necessary to permit a proper evaluation of an item on the agenda. The managing board may not refuse to provide such information on the grounds of subsection (3), 1st sentence, no. 1 through 4. Sentences 1 and 2 shall not apply if a subsidiary (§ 290 (1) and (2) of the German Commercial Code), a joint venture (§ 310 (1) of the German Commercial Code) or an associated company (§ 311 (1) of the German Commercial Code) for purposes of the inclusion of the company into the consolidated financial statements of the parent company and such information is needed for such purposes.
(5) A shareholder who has been denied information may request that his/her question and the reason for which the information was denied be recorded in the minutes of the meeting.
In addition, the chairman of the meeting is authorized to adopt various measures of order and control at the Shareholders' Meeting. This also includes the limitation of the right to speak and ask questions.