The disclosures required under takeover law as specified by sections 289(4) and
On December 31, 2010, the share capital of Volkswagen AG amounted to €1,190,882,163.20 (previous year: €1,024,623,813.12); it was composed of 295,045,567 ordinary shares and 170,142,778 preferred shares. Each share conveys a notional interest of €2.56 in the share capital.
Shareholder rights and obligations
The shares convey pecuniary and administrative rights. The pecuniary rights include in particular shareholders’ right to participate in profits (section 58(4) of the Aktiengesetz (AktG – German Stock Corporation Act)), to participate in liquidation proceeds (section 271 of the AktG) and preemptive rights to shares in the event of capital increases (section 186 of the AktG). Administrative rights include the right to attend the Annual General Meeting and the right to speak there, to ask questions, to propose motions and to exercise voting rights. Shareholders can enforce these rights in particular through actions seeking disclosure and actions for avoidance.
Each ordinary share grants the holder one vote at the Annual General Meeting. The Annual General Meeting elects shareholder representatives to the Supervisory Board and elects the auditors; in particular, it resolves the appropriation of net profit, formally approves the actions of the Board of Management and the Supervisory Board, resolves amendments to the Articles of Association, capitalization measures, authorizations to purchase treasury shares and, if required, the conduct of a special audit; it also resolves premature removal of Supervisory Board members and the winding-up of the Company.
Preferred shareholders generally have no voting rights. However, in the exceptional case that preferred shareholders are granted voting rights by law (for example, when preferred share dividends were not paid in one year and not compensated for in full in the following year), each preferred share also grants the holder one vote at the Annual General Meeting. Furthermore, preferred shares entitle the holder to a €0.06 higher dividend than ordinary shares (further details on this right to preferred and additional dividends are specified in Article 27(2) of the Articles of Association).
The Gesetz über die Überführung der Anteilsrechte an der Volkswagenwerk Gesellschaft mit beschränkter Haftung in private Hand (VW-Gesetz – Act on the Privatization of Shares of Volkswagenwerk Gesellschaft mit beschränkter Haftung) of July 21, 1960, as amended on July 30, 2009, includes various provisions in derogation of the German Stock Corporation Act, for example on exercising voting rights by proxy (section 3 of the VW-Gesetz) and on majority requirements (section 4(3) of the VW-Gesetz).
In accordance with the Volkswagen AG Articles of Association (Article 11(1) of the Articles of Association), the State of Lower Saxony is entitled to appoint two members of the Supervisory Board of Volkswagen AG for as long as it directly or indirectly holds at least 15 percent of Volkswagen AG’s ordinary shares. In addition, resolutions by the General Meeting that are required by law to be adopted by a qualified majority, again notwithstanding the provisions of the VW-Gesetz, require a majority of more than 80 percent of the share capital of the Company represented when the resolution is adopted (Article 25(2) of the Articles of Association).
Shareholdings exceeding 10% of voting rights
By reference to its voting rights notification in accordance with section 21(1) of the Wertpapierhandelsgesetz (WpHG – German Securities Trading Act) dated December 18, 2009, Qatar sent Volkswagen AG a notification in January 2010 in accordance with section 27a(1) sentence 1 of the WpHG in relation to the aims underlying the purchase of the voting rights and the source of the funds used. This notification was published on January 25, 2010 and can be accessed at .
Porsche Wolfgang 1. Beteiligungs GmbH & Co. KG, Stuttgart, notified us on October 5, 2010 of its voting rights in accordance with section 21(1) of the WpHG and on October 27, 2010 of its aims underlying the purchase of the voting rights in accordance with section 27a(1) sentence 1 of the WpHG. We published these notifications on October 8 and 29, 2010 respectively. They can both be accessed at .
Composition of the Supervisory Board
The Supervisory Board consists of 20 members, half of whom are shareholder representatives. The State of Lower Saxony is entitled to appoint two shareholder representatives for as long as it directly or indirectly holds at least 15 percent of the Company’s ordinary shares. The remaining shareholder representatives on the Supervisory Board are elected by the Annual General Meeting.
The other half of the Supervisory Board consists of employee representatives elected by the employees in accordance with the Mitbestimmungsgesetz (German Codetermination Act). A total of seven of these employee representatives are Company employees elected by the workforce; the other three employee representatives are representatives of the trade unions elected by the workforce.
The Chairman of the Supervisory Board is generally a shareholder representative on the Supervisory Board. In the event of an equality of votes in the Supervisory Board, he has a casting vote in accordance with the Mitbestimmungsgesetz.
Statutory requirements and requirements of the Articles of Association with regard to the appointment and removal of Board of Management members and to amendments to the Articles of Association
The appointment and removal of members of the Board of Management are governed by sections 84 and 85 of the AktG, whereby members of the Board of Management are appointed by the Supervisory Board for a maximum of five years. Board of Management members may be reappointed or have their term of office extended for a maximum of five years in each case. In addition, Article 6 of the Articles of Association states that the number of Board of Management members is stipulated by the Supervisory Board and that the Board of Management must consist of at least three persons.
The Annual General Meeting resolves amendments to the Articles of Association (section 119(1) of the AktG). In accordance with section 4(3) of the Gesetz über die Überführung der Anteilsrechte an der Volkswagenwerk Gesellschaft mit beschränkter Haftung in private Hand (VW-Gesetz – Act on the Privatization of Shares of Volkswagenwerk Gesellschaft mit beschränkter Haftung) of July 21, 1960, as amended on July 30, 2009, and Article 25(2) of the Articles of Association, Annual General Meeting resolutions to amend the Articles of Association require a majority of more than four-fifths of the share capital represented.
Powers of the Board of Management, in particular concerning the issue of new shares and the repurchase of treasury shares
According to German stock corporation law, the Annual General Meeting can, for a maximum of five years, authorize the Board of Management to issue new shares. It can also authorize the Board of Management, for a maximum of five years, to issue bonds on the basis of which new shares are to be issued. The Annual General Meeting also decides the extent to which shareholders have preemptive rights to the new shares or bonds. The highest amount of authorized share capital or contingent capital available for these purposes is determined by Article 4 of the Articles of Association of Volkswagen AG, as amended.
The Extraordinary General Meeting on December 3, 2009, resolved to authorize the Board of Management, with the consent of the Supervisory Board, to increase the share capital by a total of up to €345.6 million (135 million new non-voting preferred bearer shares) on one or more occasions up to December 2, 2014. Two actions for avoidance and annulment were filed against this resolution. On the basis of the corresponding clearance ruling by the Braunschweig Higher Regional Court dated March 12, 2010, approximately 65 million new preferred shares were issued in March/April 2010, reducing the above-mentioned authorized capital to approximately €179.4 million. Both actions were withdrawn on November 30, 2010. Further details on the authorization to issue new shares and their permitted uses may be found in the .
Opportunities to acquire treasury shares are governed by section 71 of the AktG. At the Annual General Meeting on April 23, 2009, the Board of Management was most recently authorized to acquire treasury shares. This authorization applied until October 23, 2010 but was not exercised.
Material agreements of the parent company in the event of a change of control following a takeover bid
A banking syndicate has granted Volkswagen AG a syndicated credit line amounting to €7.8 billion until June 2012. The syndicate members have the right to require the return of their portion of the credit line in the event that Porsche Automobil Holding SE enters into a control and profit transfer agreement with Volkswagen AG.
Restrictions on the transfer of shares
To the Board of Management’s knowledge, there was a restriction on the transfer of Volkswagen AG shares in the amount of 17.0% of Volkswagen AG’s voting share capital for approximately the first eight months of 2010 by virtue of an agreement between shareholders of Volkswagen AG.