Deutsche
Telekom AG
Bonn
- ISIN
no. DE0005557508 -
-
Securities identification code 555 750 -
Invitation
to
the shareholders’
meeting
We hereby
invite our shareholders to attend the
shareholders’
meeting
on
Monday, May 3, 2010
at
10:00 a.m. (Central European Summer Time – CEST),
to be
held at the
LANXESS
arena, Willy-Brandt-Platz 1, 50679 Cologne (Germany).
This
translation is for courtesy purposes only. The German original
prevails.
Agenda
|
1.
|
Submissions
to the shareholders' meeting pursuant to § 176 (1) sentence 1 of the
AktG (Aktiengesetz - German Stock Corporation
Act).
|
The Board
of Management shall make available to the shareholders' meeting, pursuant to
§ 176 (1) sentence 1 AktG, the following submissions and the Board of
Management explanatory report on the details pursuant to §§ 289 (4) and
(5), 315 (4) of the HGB (Handelsgesetzbuch - German Commercial
Code):
|
§
|
The
approved annual financial statements of Deutsche Telekom AG as of December
31, 2009,
|
|
§
|
The
approved consolidated financial statements as of December 31,
2009,
|
|
§
|
The
Group management report,
|
|
§
|
The
Supervisory Board’s report and
|
|
§
|
The
proposal by the Board of Management on the appropriation of net
income.
|
These
documents are available on the Internet at
http://www.telekom.com/hauptversammlung
and will
also be available for inspection during the shareholders’ meeting.
The
Supervisory Board has approved the annual financial statements and the
consolidated financial statements compiled by the Board of Management pursuant
to § 172 AktG on February 24, 2010 and thus approved the annual financial
statements. Therefore, the shareholders' meeting does not need to approve the
annual financial statements or the consolidated financial statements within the
meaning of § 173 AktG. Annual financial statements, management report,
consolidated financial statements, Group management report and Supervisory Board
report shall be made available to the shareholders' meeting, along with the
Board of Management explanatory report on the details pursuant to § 289 (4)
and (5), § 315 (4) of the HGB, without the need for a resolution within the
meaning of the AktG.
|
2.
|
Resolution
on the appropriation of net income.
|
The Board
of Management and the Supervisory Board propose the adoption of the following
resolution:
The net
income of EUR 6,421,196,639.17 posted in the 2009 financial year shall be
used as follows:
Payment
of a dividend of EUR 0.78
per no
par value share carrying dividend rights = EUR
3,385,915,005.72
and carry
forward the remaining balance to unappropriated net income =
EUR 3,035,281,633.45.
This
translation is for courtesy purposes only. The German original
prevails.
The above
total dividend and the above remaining balance to be carried forward to
unappropriated net income are based on the dividend-bearing capital stock of
EUR 11,112,746,685.44 on February 8, 2010, on the day of the annual
financial statements, divided up into 4,340,916,674 no par value
shares.
The
number of shares carrying dividend rights may change up to the date on which the
vote on the resolution regarding the appropriation of net income is taken. In
this case, the Board of Management and Supervisory Board shall submit to the
shareholders' meeting a suitably amended resolution proposal regarding the
appropriation of net income, which envisages the unchanged payment of
EUR 0.78 per no par value share carrying dividend rights. The adjustment
shall be made as follows: If the number of shares carrying dividend rights and
thus the total dividend decreases, the amount to be carried forward to
unappropriated net income increases accordingly. If the number of shares
carrying dividend rights and thus the total dividend increases, the amount to be
carried forward to unappropriated net income decreases accordingly.
The
dividend shall be paid out promptly following the shareholders' meeting and, in
all likelihood, as of May 4, 2010.
|
3.
|
Resolution
on the approval of the actions of the members of the Board of Management
for the 2009 financial year.
|
The Board
of Management and the Supervisory Board propose the adoption of the following
resolution:
The
actions of the Board of Management members holding office in the 2009
financial year shall be approved for this period.
|
4.
|
Resolution
on the approval of the actions of Dr. Klaus Zumwinkel, who resigned from
the Supervisory Board, for the 2008 financial
year.
|
The Board
of Management and the Supervisory Board propose the adoption of the following
resolution:
The
resolution on the approval of the actions of Dr. Klaus Zumwinkel, who resigned
from the Supervisory Board as of midnight on February 27, 2008, for the
2008 financial year shall be postponed again until the 2011 shareholders'
meeting.
|
5.
|
Resolution
on the approval of the actions of the members of the Supervisory Board for
the 2009 financial year.
|
The Board
of Management and the Supervisory Board propose the adoption of the following
resolution:
The
actions of the Supervisory Board members holding office in the 2009 financial
year are approved for this period.
This
translation is for courtesy purposes only. The German original
prevails.
|
6.
|
Resolution
on the approval of the new remuneration system for Board of Management
members.
|
The
VorstAG (Gesetz zur Angemessenheit der Vorstandsvergütung - German Act on the
Appropriateness of Management Board Remuneration) dated July 31, 2009
enabled the shareholders' meeting to adopt a resolution approving the
remuneration system for Board of Management members. This new option shall be
used. The subject of the approval shall be the new system adopted by the
Supervisory Board on
February
24, 2010 governing the remuneration of Board of Management members. It is
envisaged that the new remuneration system will be introduced in the current
financial year.
The Board
of Management and the Supervisory Board propose the adoption of the following
resolution:
The
shareholders' meeting approves the new system adopted by the Supervisory Board
on February 24, 2010 governing the remuneration of Board of Management
members.
Details
of the new system adopted by the Supervisory Board on February 24, 2010
governing the remuneration of Board of Management members are available on the
Internet at
http://www.telekom.com/hauptversammlung
and will
also be available for inspection during the shareholders’ meeting.
|
7.
|
Resolution
on the appointment of the independent auditor and the Group auditor for
the 2010 financial year as well as the independent auditor to review the
condensed financial statements and the interim management report pursuant
to § 37w (5), § 37y no. 2 of the WpHG
(Wertpapierhandelsgesetz - German Securities Trading Act) in the 2010
financial year.
|
The
Supervisory Board proposes, based on a corresponding recommendation from the
Audit Committee, the adoption of the following resolution:
|
|
a)
|
PricewaterhouseCoopers
Aktiengesellschaft Wirtschaftsprüfungsgesellschaft, Frankfurt am Main, and
Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, Stuttgart, shall
be jointly appointed as independent auditor and Group auditor for the 2010
financial year, subject to the proviso that each auditor is solely
responsible for the tasks of the independent auditor and Group auditor if
the other auditor should drop out for a reason for which the Company is
not responsible.
|
|
|
b)
|
PricewaterhouseCoopers
Aktiengesellschaft Wirtschaftsprüfungsgesellschaft, Frankfurt am Main, and
Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, Stuttgart, shall
also be jointly appointed as independent auditor to review the condensed
financial statements and the interim management report pursuant to
§ 37w (5) and § 37y no. 2 of the WpHG in the 2010 financial
year, subject to the proviso that each auditor is solely responsible for
the tasks of the auditor associated with the review if the other auditor
should drop out for a reason for which the Company is not
responsible.
|
This
translation is for courtesy purposes only. The German original
prevails.
PricewaterhouseCoopers
Aktiengesellschaft Wirtschaftsprüfungsgesellschaft, Frankfurt am Main, and Ernst
& Young GmbH Wirtschaftsprüfungsgesellschaft, Stuttgart have declared to the
Supervisory Board that there are no business, financial, personal or other
relationships between them, their executive bodies and audit managers on the one
hand, and the company and its executive body members on the other which may cast
doubt on their independence. The Supervisory Board intends, as the basis for its
election proposal to the 2011 shareholders' meeting, to conduct, already in the
current financial year, a new invitation to tender for the position of
independent auditor and Group auditor as well as for the position of independent
auditor to review the condensed financial statements and the interim management
report pursuant to § 37w (5), § 37y no. 2 of the
WpHG.
|
8.
|
Resolution
on the authorization to acquire treasury shares and use them with possible
exclusion of subscription rights and any right to offer shares as well as
of the option to redeem treasury shares, reducing the capital
stock.
|
The Board
of Management and the Supervisory Board propose the adoption of the following
resolution:
|
|
a)
|
The
Board of Management shall be authorized to purchase shares of the Company
by November 2, 2011, with the amount of capital stock accounted for by
these shares totaling up to EUR 1,116,497,918.20, which is 10% of the
capital stock, subject to the proviso that the shares to be purchased on
the basis of this authorization in conjunction with the other shares of
the Company which the Company has already purchased and still possesses or
are to be assigned to it under § 71d and § 71e AktG do not at
any time account for more than 10% of the Company's capital stock.
Moreover, the requirements under § 71 (2) sentences 2 and 3 AktG must
be complied with. Shares shall not be purchased for the purpose of trading
in treasury shares.
|
This
authorization may be exercised in full or in part. The purchase can be carried
out in partial tranches spread over various purchase dates within the
authorization period until the maximum purchase volume is reached.
The
shares may also be purchased by dependent Group companies of Deutsche Telekom AG
within the meaning of § 17 AktG or by third parties for the account of Deutsche
Telekom AG or for the account of the dependent Group companies of Deutsche
Telekom AG pursuant to § 17 AktG.
|
|
b)
|
The
shares are purchased in compliance with the principle of equal
treatment
|
|
|
(§ 53a
AktG) through the stock exchange. Shares can instead also be purchased by
means of a public purchase or share exchange offer sent to all
shareholders, which, subject to a subsequently approved exclusion of the
right to offer shares, must also comply with the principle of equal
treatment (§ 53a AktG).
|
|
|
(1)
|
If
the shares are purchased through the stock exchange, the equivalent value
per share paid by the Company (excluding transaction costs) may not be
more than 5% above or below the market price of the shares determined by
the opening auction on the trading day in the Xetra trading system (or a
subsequent system) of Deutsche Börse
AG.
|
This
translation is for courtesy purposes only. The German original
prevails.
|
|
(2)
|
If
the shares are purchased through a public purchase offer presented to all
shareholders, the purchase price offered or the limits of the purchase
price range offered per share (excluding transaction costs) may not be
more than 10% above or below the average market price of the share between
the 9th
and 5th
trading day, established on the basis of the arithmetical average of the
closing auction prices of the shares in the Xetra trading system (or a
subsequent system) of Deutsche Börse AG, on the 9th,
8th,
7th,
6th
and 5th
trading day before the date of the publication of the offer. The volume of
the offer may be limited. If the total number of offered shares exceeds
this volume, the shares can be purchased in accordance with the ratio of
offered shares; furthermore, provision can be made for the preferential
acceptance of small quantities of up to 100 shares offered per shareholder
as well as for rounding off in accordance with prudent commercial practice
in order to avoid arithmetic fractional shares. Any further right of
shareholders to offer their shares is excluded to this
extent.
|
|
|
(3)
|
If
the shares are purchased through a public share exchange offer presented
to all shareholders, the offered equivalent value, i.e. the value of the
offered consideration, per share (excluding transaction costs) may not be
more than 10% above or below the average market price of the share between
the 9th
and 5th
trading day before the date of the publication of the offer, established
on the basis of the arithmetical average of the closing auction prices of
the shares in the Xetra trading system (or a subsequent system) of
Deutsche Börse AG, on the 9th,
8th,
7th,
6th
and 5th
trading day before the date of the publication of the offer. If shares are
offered as consideration which are listed on stock exchanges in Germany or
abroad within the meaning of § 3 (2) AktG; the average market price
between the 9th
and 5th
trading day before the date of publication of the offer shall be used to
determine the equivalent value, established on the basis of the
arithmetical average of the closing prices in the German or international
market, which complies with the requirements of § 3 (2) AktG, on the
9th,
8th,
7th,
6th
and 5th
trading day before the date of publication of the offer. If the share is
traded on multiple stock exchanges, solely the market with the highest
revenue shall be used. The volume of the offer may be limited. If the
total number of offered shares exceeds this volume, the shares can be
purchased in accordance with the ratio of offered shares; furthermore,
provision can be made for the preferential acceptance of small quantities
of up to 100 shares offered per shareholder as well as for rounding off in
accordance with prudent commercial practice in order to avoid arithmetic
fractional shares. Any further right of shareholders to offer their shares
is excluded to this extent.
|
|
|
c)
|
The
Board of Management shall be authorized to sell shares of Deutsche Telekom
AG that are purchased based on the above purchase authorization without
prejudice to the principle of equal treatment (§ 53a AktG) again
through the stock exchange.
|
|
|
d)
|
The
Board of Management shall be authorized to offer the shares of Deutsche
Telekom AG, which are purchased on the strength of the purchase
authorization above, to shareholders for subscription on the basis of an
offer sent to all the shareholders without prejudice to their subscription
rights and without prejudice to the principle of equal treatment of
shareholders (§ 53a AktG).
|
This
translation is for courtesy purposes only. The German original
prevails.
|
|
e)
|
The
Board of Management shall be authorized, with the approval of the
Supervisory Board, to sell the shares purchased on the basis of the above
purchase authorization other than through the stock exchange or by
offering them to all shareholders, if the shares purchased are sold for
cash payment at a price that is not significantly lower than the market
price of Company shares of equal ranking on the date of sale. This
authorization is limited to a maximum of 10% of Deutsche Telekom AG’s
capital stock on the date of the resolution on this authorization adopted
by the shareholders’ meeting, i.e., to a maximum of
EUR 1,116,497,918.20 in total, or – if this value is lower – 10% of
the capital stock on the date of sale of the shares. The authorized volume
decreases by the proportion of capital stock that is accounted for by the
shares or that relates to option and/or conversion rights and obligations
from bonds issued or sold since this authorization was granted, with
subscription rights being excluded, directly pursuant to, in accordance
with or analogous to § 186 (3) sentence 4
AktG.
|
|
|
f)
|
The
Board of Management shall be authorized, with the approval of the
Supervisory Board, to use shares of Deutsche Telekom AG acquired on the
basis of the above purchase authorization for the purpose of listing
Company shares on foreign stock exchanges where they are not
quoted.
|
|
|
g)
|
The
Board of Management shall be authorized, with the approval of the
Supervisory Board, to offer and/or grant shares of Deutsche Telekom AG
acquired on the basis of the above purchase authorization to third parties
in the context of mergers or acquisitions of companies, business units or
interests in companies, including increasing existing investment holdings,
or other assets eligible for contribution for such acquisitions, including
receivables from the Company.
|
|
|
h)
|
The
Board of Management shall be authorized to use shares of Deutsche Telekom
AG acquired on the basis of the above purchase authorization to fulfill
option and/or conversion rights and obligations from convertible bonds
and/or bonds with warrants issued, either directly or through a company in
which the Company has a (direct or indirect) majority holding, by the
Company on the basis of the authorization under item 13 on the
agenda.
|
|
|
i)
|
The
Board of Management shall be authorized to offer and/or grant shares of
Deutsche Telekom AG acquired on the basis of the above purchase
authorization to employees of Deutsche Telekom AG and of lower-tier
affiliated companies (employee shares). Shares acquired on the basis of
the above purchase authorization can also be issued to a bank, or to some
other company meeting the requirements of § 186 (5) sentence 1
AktG, that, along with the shares, assumes the obligation to use the
shares exclusively for the purpose of granting employee shares. The Board
of Management may also acquire shares that are to be granted as employee
shares via securities loans from a bank, or from some other company
meeting the requirements of § 186 (5) sentence 1 AktG, and then
use shares of Deutsche Telekom AG acquired on the basis of the above
purchase authorization to repay such securities
loans.
|
|
|
j)
|
The
Board of Management shall be authorized to redeem shares of Deutsche
Telekom AG purchased on the basis of the above purchase authorization,
without such redemption or its implementation requiring a further
resolution of the shareholders’ meeting. The redemption shall lead to a
capital reduction. The
|
This
translation is for courtesy purposes only. The German original
prevails.
Board of
Management may determine otherwise, i.e., that the capital stock remains
unchanged upon redemption and instead that the proportion of the remaining
shares in the capital stock is increased through redemption pursuant to § 8 (3)
AktG. In such a case, the Board of Management is authorized to adjust the
statement on the number of shares in the Articles of Incorporation.
|
|
k)
|
The
Supervisory Board shall be authorized to use shares of Deutsche Telekom
AG, acquired on the basis of the above purchase authorization, to fulfill
rights of Board of Management members to receive shares of Deutsche
Telekom AG, which the Supervisory Board has granted to these members as
part of the arrangements governing Board of Management
remuneration.
|
|
|
l)
|
The
subscription rights of shareholders shall be excluded if the Board of
Management uses Deutsche Telekom AG shares in accordance with the
authorizations under c), e), f), g), h) and i), and if the Supervisory
Board uses Deutsche Telekom AG shares in accordance with the authorization
under k). Furthermore, the Board of Management may, with the approval of
the Supervisory Board, exclude the subscription rights of shareholders for
fractional amounts if shares in Deutsche Telekom AG are sold to the
Company's shareholders by offering them for sale in accordance with
d).
|
|
|
m)
|
The
above authorizations can be used once or several times, individually or
jointly, in whole or related to partial volumes of the shares purchased.
The price at which shares of Deutsche Telekom AG are listed on such stock
exchanges in accordance with the authorization in f) or at which they are
provided to third parties in accordance with the authorizations in c) and
e) may not be less than a price of 5% below the market price established
by the opening auction in the Xetra trading system (or a subsequent
system) of Deutsche Börse AG on the day of the initial public offering or
of the binding agreement with the third party. If on the day concerned no
such market price is determined or is not determined by the time of the
initial public offering or the binding agreement with the third party,
then the last closing price of the Deutsche Telekom AG share determined in
the Xetra trading system (or a subsequent system) of Deutsche Börse AG
shall be decisive instead.
|
|
|
n)
|
The
authorization to purchase treasury shares granted to the Board of
Management by the shareholders’ meeting of Deutsche Telekom AG on April
30, 2009 under item 7 of the agenda shall end when this new authorization
takes effect; the authorizations granted by the shareholders’ meeting
resolution of April 30, 2009, on the use of purchased treasury shares
shall not be affected.
|
|
9.
|
Election
of a Supervisory Board member.
|
By order
of Bonn District Court on December 28, 2009, Dr. Wulf H. Bernotat was appointed
to the Company's Supervisory Board with effect from January 1, 2010 for a
limited term up to the end of the shareholders' meeting on May 3, 2010. Dr. Wulf
H. Bernotat replaces Prof. Dr. Wulf von Schimmelmann, who resigned from office
with effect from December 31, 2009. The shareholders' meeting shall now elect
Dr. Wulf H. Bernotat as a Supervisory Board member.
This
translation is for courtesy purposes only. The German original
prevails.
The
Supervisory Board therefore proposes
that Dr.
Wulf H. Bernotat, residing in Essen, Chairman of the Board of Management of E.ON
AG, Düsseldorf, be elected to the Supervisory Board as a shareholder
representative for the period up to the end of the shareholders’ meeting which
passes a resolution on the approval of the Supervisory Board’s actions for the
2014 financial year.
Dr. Wulf
H. Bernotat will resign his office as member and Chairman of the Board of
Management of E.ON AG with effect from May 1, 2010 and thus retire from the
Board of Management of E.ON AG.
Details
on item 9 in accordance with § 125 (1) sentence 5 AktG:
Dr. Wulf
H. Bernotat is a member of the Supervisory Boards that must be formed by law in
the following companies: Allianz SE, Munich; Bertelsmann AG, Gütersloh; E.ON
Energie AG, Munich, Chairman of the Supervisory Board; E.ON Ruhrgas AG, Essen,
Chairman of the Supervisory Board; Metro AG, Düsseldorf. In addition, Dr. Wulf
H. Bernotat is a member of comparable supervisory bodies in Germany or abroad of
the following commercial enterprises: E.ON Sverige AB, Malmö, Sweden, Chairman
of the Supervisory Board; E.ON US Investment Corp., Delaware, USA, Chairman of
the Supervisory Board. Dr. Wulf H. Bernotat is not a member of any other
Supervisory Boards that must be formed by law or of comparable national or
international supervisory bodies of commercial
enterprises.
|
10.
|
Election
of a Supervisory Board member.
|
By order
of Bonn District Court on December 17, 2009, Prof. h. c. (CHN), Dr.-Ing. E.h.
Dr. Ulrich Middelmann was appointed to the Company's Supervisory Board with
effect from January 1, 2010 for a limited term up to the end of the
shareholders' meeting on May 3, 2010. Prof. h. c. (CHN), Dr.-Ing. E.h. Dr.
Ulrich Middelmann replaces Prof. Dr. Wolfgang Reitzle, who resigned from office
with effect from December 31, 2009. The shareholders' meeting shall now elect
Prof. h. c. (CHN), Dr.-Ing. E.h. Dr. Ulrich Middelmann as a Supervisory Board
member.
The
Supervisory Board therefore proposes
that
Prof. h. c. (CHN), Dr.-Ing. E.h. Dr. Ulrich Middelmann, residing in Bochum,
former Deputy Chairman of the Board of Management of ThyssenKrupp AG, Duisburg
and Essen, be elected to the Supervisory Board as a shareholder representative
for the period up to the end of the shareholders’ meeting which passes a
resolution on the approval of the Supervisory Board’s actions for the 2014
financial year.
Prof. h.
c. (CHN), Dr.-Ing. E.h. Dr. Ulrich Middelmann has resigned his office as member
and Deputy Chairman of the Board of Management of ThyssenKrupp AG with effect
from January 21, 2010 and has thus retired from the Board of Management of
ThyssenKrupp AG.
This
translation is for courtesy purposes only. The German original
prevails.
Details
on item 10 in accordance with § 125 (1) sentence 5 AktG:
Prof. h.
c. (CHN), Dr.-Ing. E.h. Dr. Ulrich Middelmann is a member of the Supervisory
Boards that must be formed by law in the following companies: Commerzbank AG,
Frankfurt; E.ON Ruhrgas AG, Essen; LANXESS AG, Leverkusen; LANXESS Deutschland
GmbH, Leverkusen; ThyssenKrupp Elevator AG, Düsseldorf; ThyssenKrupp Marine
Systems AG, Hamburg; ThyssenKrupp Materials International GmbH, Düsseldorf;
ThyssenKrupp Nirosta GmbH, Krefeld; ThyssenKrupp Steel Europe AG, Duisburg. In
addition, Prof. h. c. (CHN), Dr.-Ing. E.h. Dr. Ulrich Middelmann is a member of
comparable supervisory bodies in Germany or abroad of the following commercial
entities: Hoberg & Driesch GmbH, Düsseldorf, Chairman of the Advisory
Council; ThyssenKrupp Acciai Speciali Terni S.p.A, Terni, Italy; ThyssenKrupp
(China) Ltd., Beijing, PR China. Prof. h. c. (CHN), Dr.-Ing. E.h. Dr. Ulrich
Middelmann is not a member of any other Supervisory Boards that must be formed
by law or of comparable national or international supervisory bodies of
commercial enterprises.
Details
on agenda items 9 and 10 in accordance with § 124 (2), sentence 1
AktG:
Pursuant
to § 96 (1) and § 101 (1) of the AktG in conjunction with § 7 (1)
sentence 1 no. 3 of the MBG (Mitbestimmungsgesetz - Codetermination Act ) of
1976, the Supervisory Board of Deutsche Telekom AG is composed of ten members
representing shareholders and ten members representing employees. The
shareholders’ meeting is not bound by the nomination proposals for the election
of Supervisory Board members representing shareholders.
|
11.
|
Resolution
on the approval of the control and profit and loss transfer agreement with
Erste DFMG Deutsche Funkturm
Vermögens-GmbH.
|
Deutsche
Telekom AG concluded a control and profit and loss transfer agreement on
February 25, 2010 with Erste DFMG Deutsche Funkturm Vermögens-GmbH (formerly
Erste DFMG Deutsche Funkturm Vermögens-GmbH & Co. KG) with its registered
office in Heusenstamm (hereinafter referred to as the subsidiary).
In
essence, the control and profit and loss transfer agreement between Deutsche
Telekom AG and the subsidiary contains the following:
|
§
|
The
subsidiary shall submit the management of its enterprise to Deutsche
Telekom AG.
|
|
§
|
Deutsche
Telekom AG shall be entitled to give instructions to the management of the
subsidiary with regard to how the subsidiary should be managed. The
authority to give instructions notwithstanding, the subsidiary’s senior
management shall continue to be responsible for managing the business and
representing the subsidiary.
|
|
§
|
The
subsidiary is obliged to transfer its entire profits to Deutsche Telekom
AG during the term of the agreement. The amount shall be transferred as
per § 301 sentence 1 AktG as amended. In all other respects,
§ 301 AktG, as amended, applies analogously. (The currently
applicable version of § 301 AktG reads as follows: "Irrespective of
any agreements made regarding the calculation of
the
|
This
translation is for courtesy purposes only. The German original
prevails.
amount of
profit to be transferred, a company may in no event transfer as profit an amount
exceeding the net income accruing prior to such profit transfer, after deducting
any loss carried forward from the previous year, plus the amount to be
transferred to the legal reserve pursuant to § 300, and the amount blocked
from distribution pursuant to § 268 (8) of the HGB. If amounts have been
allocated to other retained earnings during the term of the agreement, these
amounts can be taken from other retained earnings and transferred as profit.")
The subsidiary may, with Deutsche Telekom AG’s approval, allocate amounts from
net income to retained earnings (§ 272 (3) HGB), except for any statutory
reserves, to the extent that this is permissible under commercial law and
economically justifiable based on a reasonable commercial assessment. The right
to transfer profits arises at the end of the financial year. It falls due with
the value date at this time.
|
§
|
Pursuant
to § 302 (1) AktG as amended, Deutsche Telekom AG shall be obliged
vis-à-vis the subsidiary to compensate any net loss for the year otherwise
arising during the term of the agreement. In all other respects,
§ 302 AktG, as amended, applies analogously. (The current applicable
version of the relevant paragraphs 1, 3 and 4 of § 302 AktG read as
follows: (1) "In the case of a control and profit and loss transfer
agreement, the other contracting party shall compensate any annual net
loss occurring during the term of the agreement to the extent that such
loss is not compensated by taking amounts from other retained earnings,
which have been allocated to them during the term of the agreement." (3)
"The Subsidiary may waive or settle any claim for compensation after the
expiration of three years from the date on which the registration of the
cancellation or termination of the Agreement in the Commercial Register
shall be deemed to have been announced pursuant to § 10 of the HGB.
The foregoing shall not apply if the party liable for compensation is
unable to make payments when due and enters into composition with its
creditors to avoid insolvency proceedings or if the liability for
compensation is subject to an insolvency plan. The waving or settlement
shall only come into effect if the external shareholders approve by means
of a special resolution, and a minority whose shares collectively make up
one tenth of the capital stock represented with the resolution does not
object to the minutes." (4) "The claims arising out of these provisions
expire after ten years from the date on which the registration of the
cancellation or termination of the Agreement in the Commercial Register
has been announced pursuant to § 10 of the HGB.") The loss
compensation claim arises at the end of the financial year. It falls due
with the value date at this time.
|
|
§
|
Profits
are transferred or losses assumed for the first time at the end of the
financial year in which the control and profit and loss transfer agreement
comes into effect. The control and profit and loss transfer agreement must
be approved by the shareholders' meeting of Deutsche Telekom AG and the
shareholders' meeting of the subsidiary to enter into
force.
|
|
§
|
The
control and profit and loss transfer agreement may be terminated for the
first time by giving one month's notice with effect from the end of the
year, at the end of which the fiscal unit for German corporate income tax
purposes established in this agreement shall have existed for the minimum
period required for taxation purposes (as the legal situation now stands
for a period of time of five years, § 14 (1) sentence 1 no. 3 in
conjunction with § 17 of the KStG (Körperschaftsteuergesetz - German
Corporate Income Tax Law). If it is not terminated, it shall be
automatically extended for one further year with the same notice
period.
|
This
translation is for courtesy purposes only. The German original
prevails.
|
§
|
Furthermore,
the parties shall be able to terminate the control and profit and loss
transfer agreement for good cause. Good cause is especially the sale or
contribution of the subsidiary by Deutsche Telekom AG or the merger,
split-up or liquidation of one of the two
parties.
|
|
§
|
If
individual provisions of the control and profit and loss transfer
agreement are or become invalid or unenforceable, this shall not affect
the validity of the remaining provisions. Any invalid or unenforceable
agreement is to be replaced by one that most closely approximates the
economic effect of the invalid or unenforceable clause in a permissible
way.
|
At the
time of the conclusion of the control and profit and loss transfer agreement and
also at the time of the shareholders’ meeting, Deutsche Telekom AG was and
continues to be the sole shareholder of the subsidiary. For this reason,
Deutsche Telekom AG will not be granting any compensation or other settlement
payments to external shareholders.
The
partners’ meeting of the subsidiary has already approved the control and profit
and loss transfer agreement.
The
control and profit and loss transfer agreement shall only come into effect
subject to the approval of the shareholders’ meeting of Deutsche Telekom AG and
not until its existence has been entered in the commercial register at the
subsidiary’s registered office.
The Board
of Management and the Supervisory Board propose the adoption of the following
resolution:
The
control and profit and loss transfer agreement dated February 25, 2010 between
Deutsche Telekom AG and Erste DFMG Deutsche Funkturm Vermögens-GmbH with its
registered office in Heusenstamm is approved.
Notes
on item 11 on the agenda:
The
following documents are available on the Internet at
http://www.telekom.com/hauptversammlung
and will
also be available for inspection during the shareholders’ meeting.
|
§
|
The
control and profit and loss transfer agreement with Erste DFMG Deutsche
Funkturm Vermögens-GmbH (hereinafter referred to as the
subsidiary),
|
|
§
|
The
annual financial statements and consolidated financial statements of
Deutsche Telekom AG for the 2007, 2008 and 2009 financial years, and the
management reports of Deutsche Telekom AG and Group management reports for
the 2007, 2008 and 2009 financial
years,
|
|
§
|
The
annual financial statements of the subsidiary for the 2007, 2008 and 2009
financial years, and the management reports of the subsidiary for the
2007, 2008 and 2009 financial
years,
|
|
§
|
The
joint report of the Board of Management of Deutsche Telekom AG and the
subsidiary's senior management compiled in accordance with § 293a
AktG.
|
This
translation is for courtesy purposes only. The German original
prevails.
|
12.
|
Resolution
on the approval of the control and profit and loss transfer agreement with
T-Mobile Global Holding Nr. 2 GmbH.
|
On
February 25, 2010, Deutsche Telekom AG concluded a control and profit and loss
transfer agreement with T-Mobile Global Holding Nr. 2 GmbH (hereinafter referred
to as the subsidiary), with registered office in Bonn. Apart from the names of
the contracting parties, the control and profit and loss transfer agreement has
the same wording as the control and profit and loss transfer agreement with
Erste DFMG Deutsche Funkturm Vermögens-GmbH; its essential content, with the
exception of the names of the contracting parties, is therefore identical to the
essential content of the control and profit and loss transfer agreement with
Erste DFMG Deutsche Funkturm Vermögens-GmbH as described in item 11 on the
agenda.
At the
time of the conclusion of the control and profit and loss transfer agreement and
also at the time of the shareholders’ meeting, Deutsche Telekom AG was and
continues to be the sole shareholder of the subsidiary. For this reason,
Deutsche Telekom AG will not be granting any compensation or other settlement
payments to external shareholders.
The
partners’ meeting of the subsidiary has already approved the control and profit
and loss transfer agreement.
The
control and profit and loss transfer agreement shall only come into effect
subject to the approval of the shareholders’ meeting of Deutsche Telekom AG and
not until its existence has been entered in the commercial register at the
subsidiary’s registered office.
The Board
of Management and the Supervisory Board propose the adoption of the following
resolution:
The
control and profit and loss transfer agreement dated February 25, 2010 between
Deutsche Telekom AG and T-Mobile Global Holding Nr. 2 GmbH with its registered
office in Bonn is approved.
Notes
on item 12 on the agenda:
The
following documents are available on the Internet at
http://www.telekom.com/hauptversammlung
and will
also be available for inspection during the shareholders’ meeting.
|
§
|
The
control and profit and loss transfer agreement with T-Mobile Global
Holding Nr. 2 GmbH (hereinafter referred to as the
subsidiary),
|
|
§
|
The
annual financial statements and consolidated financial statements of
Deutsche Telekom AG for the 2007, 2008 and 2009 financial years, and the
management reports of Deutsche Telekom AG and Group management reports for
the 2007, 2008 and 2009 financial
years,
|
|
§
|
The
annual financial statements of the subsidiary for the 2007, 2008 and 2009
financial years, and the management reports of the subsidiary for the
2007, 2008 and 2009 financial
years,
|
|
§
|
The
joint report of the Board of Management of Deutsche Telekom AG and the
subsidiary's senior management compiled in accordance with § 293a
AktG.
|
This
translation is for courtesy purposes only. The German original
prevails.
|
13.
|
Authorization
to issue bonds with warrants, convertible bonds, profit participation
rights and/or participating bonds (or combinations of these instruments)
with the option of excluding subscription rights, creation of new
contingent capital with the cancellation of the contingent capital
pursuant to § 5 (5) of the Articles of Incorporation and
corresponding amendment to § 5 of the Articles of Incorporation
(contingent capital 2010).
|
The
authorization of the Board of Management by the shareholders' meeting on April
26, 2005 to issue bonds with warrants or convertible bonds with the granting of
option and/or conversion rights to shares of the Company, expires on April 25,
2010. This authorization has not been used. A new resolution shall be adopted,
which is tailored to market developments and the Company's current financial
situation so the opportunity for raising capital can also be utilized in future.
To service the option or conversion rights and obligations in the event that use
is made of the new authorization, a resolution shall be adopted regarding new
contingent capital (contingent capital 2010) with the cancellation of the
previous contingent capital pursuant to § 5 (5) of the Articles of
Incorporation (contingent capital IV).
|
|
The
Board of Management and the Supervisory Board propose the adoption of the
following resolution:
|
|
|
I.
|
Authorization
to issue bonds with warrants, convertible bonds, profit participation
rights and/or participating bonds (or combinations of these
instruments)
|
|
|
1.
|
Authorization
period, par value, number of shares, term,
interest
|
The Board
of Management shall be authorized, with the approval of the Supervisory Board,
to issue on one or more occasions by May 2, 2015 bonds with warrants,
convertible bonds, profit participation rights and/or participating bonds (or
combinations of these instruments) (hereinafter collectively also referred to as
"bonds") having a total par value of up to EUR 6,500,000,000 and to grant
the holders or creditors (hereinafter collectively referred to as "holders") of
the respective partial bonds with equal rights, option or conversion rights to
shares of the Company up to a maximum of 429,687,500 shares and with a
proportion of the capital stock of a maximum of EUR 1,100,000,000 in
accordance with the terms and conditions of the bonds. The bonds as well as
option and conversion rights can be issued with or without a limited term. The
bonds can carry fixed or variable interest. Moreover, the interest, as with a
participating bond, can also depend partially or completely on the amount of the
Company's dividend.
|
|
2.
|
Currency,
issue by companies in which Deutsche Telekom has a majority
holding
|
The bonds
may be issued both in euros and in the legal tender of an OECD country, to be
limited to the equivalent of the price in euros. The bonds may also be issued by
direct or indirect majority shareholdings of Deutsche Telekom AG (companies in
which Deutsche Telekom AG has a direct or indirect majority share of the votes
and capital), in which case, the Board of Management shall be authorized, with
the approval of the Supervisory Board, to provide the guarantee for the bonds
for Deutsche Telekom AG and grant or guarantee option or conversion rights to
Deutsche Telekom AG shares to the holders of such bonds.
This
translation is for courtesy purposes only. The German original
prevails.
|
|
3.
|
Option
and conversion rights
|
If bonds
with warrants are issued, one or more warrants shall be attached to each partial
bond which entitle the holder to subscribe to shares of Deutsche Telekom AG in
accordance with the terms and conditions of the warrant. The terms and
conditions of the warrant may also provide for the possibility that the option
price can be furnished in full or in part by transferring partial bonds. The
subscription ratio is the result of dividing the par value of a partial bond by
the option price for a share of Deutsche Telekom AG. The resulting arithmetic
fractional shares can be settled in cash. The proportion of the capital stock
represented by the shares to be subscribed for each partial bond in the event of
the option being exercised may not exceed the par value of the individual
partial bond.
If
convertible bonds are issued, the holders of the bonds have the right to convert
their partial bonds into shares of Deutsche Telekom AG in accordance with the
terms and conditions of the convertible bond. The exchange ratio is the result
of dividing the par value of a partial bond by the conversion price for a share
of Deutsche Telekom AG. The resulting arithmetic fractional shares can be
settled in cash. The proportion of the capital stock represented by the shares
to be issued for each partial bond in the event of the conversion may not exceed
the par value of the individual partial bond.
|
|
4.
|
Option
and conversion obligations
|
The terms
and conditions of the bonds may also constitute an option or conversion
obligation (mandatory convertible) at the end of the term or earlier
(hereinafter also referred to as “final due date”) or make a provision for the
right of Deutsche Telekom AG, when the final due date of the bond falls, to
grant the holders of bonds shares of Deutsche Telekom AG completely or partially
in lieu of payment of the amount due. In this case, the option or conversion
price for a share may correspond to the (unweighted) average closing price of
the Deutsche Telekom AG share in the Xetra trading system (or a subsequent
system) of Deutsche Börse AG during the ten trading days before or after the
final due date, even if this is below the minimum price stated in item 6. The
proportion of the capital stock represented by the shares to be issued for each
partial bond on the final due date may not exceed the par value of the
individual partial bond in this case.
|
|
5.
|
Granting
new or existing shares; cash
payments
|
In the
event of the option being exercised or conversion and in the event of
fulfillment of the option or conversion obligations, the Company may at its
discretion either grant new shares from contingent capital, or existing Company
shares or shares of another listed company. The terms and conditions of the
bonds may also provide for the right of the Company, in the event of the option
being exercised or conversion and in the event of fulfillment of the option or
conversion obligations, not to grant shares, but rather pay the equivalent value
in cash.
This
translation is for courtesy purposes only. The German original
prevails.
|
|
6.
|
Option
price, conversion price, adjustment of the option or conversion price to
retain value
|
The
option or conversion price for a share, determined on the basis of the ratio of
the par value of a partial bond to the number of subscribed shares must – with
the exception of the cases in which an option or conversion obligation is
provided (above under item 4) –
|
|
(a)
|
be
at least 80% of the (unweighted) average closing price of the Deutsche
Telekom AG share in the Xetra trading system (or a subsequent system) of
Deutsche Börse AG on the last ten trading days before the date on which
the resolution is adopted by the Board of Management on the issue of the
bonds,
|
or
|
|
(b)
|
in
the event of subscription rights being granted, at least 80% of the
(unweighted) average closing price of the Deutsche Telekom AG share in the
Xetra trading system (or a subsequent system) of Deutsche Börse AG in the
period from the start of the subscription period up to and including the
day before notification is given of the definitive terms and conditions of
the bonds pursuant to § 186 (2)
AktG.
|
§ 9
(1) AktG shall remain unaffected.
If during
the term of bonds, which grant or stipulate an option or conversion right and
obligation, the financial value of the existing option or conversion rights and
obligations is diluted and no subscription rights are granted as compensation,
the option or conversion rights and obligations – notwithstanding § 9 (1)
AktG – may be adjusted to retain value insofar as the adjustment is not already
covered by statute. In any case, the proportion of the capital stock represented
by the shares to be subscribed for each partial bond may not exceed the par
value of the individual partial bond.
Instead
of adjusting the option or conversion price to retain value, in accordance with
the terms and conditions of the bonds in all these cases, provision can be made
for the payment of a corresponding amount in cash by the Company in the event of
exercising the option or conversion right or in the event of fulfillment of the
option or conversion obligation.
|
|
7.
|
Granting
of subscription rights, exclusion of subscription
rights
|
Shareholders
have in principle subscription rights to the bonds. The bonds may also be taken
over by one or several banks or by members of a consortium of banks or these
taken over by equivalent companies with an obligation to offer them to
shareholders for subscription pursuant to § 186 (5) sentence 1 AktG. If the
bonds are issued by a direct or indirect majority shareholding of Deutsche
Telekom AG, Deutsche Telekom AG shall ensure shareholders of Deutsche Telekom AG
are granted subscription rights in accordance with the foregoing
sentences.
However,
the Board of Management shall be authorized, with the approval of the
Supervisory Board, to exclude statutory subscription rights of shareholders to
the bonds
This
translation is for courtesy purposes only. The German original
prevails.
|
|
(a)
|
if
the bonds are issued with option or conversion rights and obligations for
a cash payment and are thus structured so that their issue price is not
significantly lower than the theoretical market price determined in
accordance with recognized financial methods. This authorization for
excluding subscription rights only applies, however, to bonds with option
or conversion rights and obligations to shares with a proportionate amount
of the capital stock, which must not exceed 10% of Deutsche Telekom AG's
capital stock. The 10% limit is calculated on the basis of the amount of
capital stock on the date of the shareholders' meeting resolution
regarding this authorization, or – if this value is lower – on the date of
exercising this authorization. The authorized volume decreases by the
proportion of capital stock that is accounted for by the shares or that
relates to option or conversion rights and obligations from bonds issued
or sold since this authorization was granted, directly pursuant to, in
accordance with or analogous to § 186 (3) sentence 4
AktG.
|
|
|
(b)
|
for
fractional amounts that arise as a result of the subscription
ratio;
|
|
|
(c)
|
where
necessary to grant holders of previously issued bonds a subscription right
to the extent they would be entitled to as a shareholder after exercising
an option or conversion right or after fulfilling an option or conversion
right.
|
If profit
participation rights or participating bonds without option or conversion rights
and obligations are issued, the Board of Management shall be authorized, with
the approval of the Supervisory Board, to exclude subscription rights of
shareholders overall if these profit participation rights or participating bonds
entail obligation-like terms, i.e. do not constitute any membership rights in
the company, do not grant any participation in liquidation proceeds and the
amount of interest is not calculated on the basis of the amount of net
income/loss, unappropriated net income or the dividend. In this case, the
interest and the issue price of the profit participation rights or participating
bonds must also be in line with comparable borrowing under the current market
conditions on the issue date.
|
|
8.
|
Authorization
to determine other details
|
The Board
of Management shall be authorized, with the approval of the Supervisory Board,
within the given parameters to stipulate the other particulars and terms of the
bond issues and the option or conversion rights and obligations, in particular
the interest rate, type of interest, issue price, maturity term and
denominational units as well as option or conversion period and a possible
variability of the conversion ratio, or to make such determinations in
coordination with the executive bodies of the majority holdings of Deutsche
Telekom AG issuing the bonds.
|
|
II.
|
Cancellation
of the contingent capital pursuant to § 5 (5) of the Company's
Articles of Incorporation and the creation of new contingent capital
2010
|
|
|
1.
|
The
contingent capital increase (contingent capital IV) approved by the
shareholders' meeting on April 26, 2005 and included in § 5 (5) of
the Company's Articles of Incorporation shall be
cancelled.
|
This
translation is for courtesy purposes only. The German original
prevails.
|
|
2.
|
The
Company's capital stock shall be conditionally increased by up to
EUR 1,100,000,000 by issuing up to 429,687,500 no par value shares
(contingent capital 2010). The contingent capital increase is used to
grant shares when options or conversion rights are exercised or option or
conversion obligations are fulfilled vis-à-vis the holders or creditors of
the bonds with warrants, convertible bonds, profit participation rights
and/or participating bonds (or combinations of these instruments)
(hereinafter collectively referred to as "bonds") issued on the basis of
the authorization by the shareholders' meeting on May 3,
2010.
|
The new
shares are issued at the option and conversion price to be stipulated in each
instance in accordance with the aforementioned authorization. The contingent
capital increase shall be implemented to the extent to which the holders or
creditors of bonds, which are issued or guaranteed by Deutsche Telekom AG or its
direct or indirect majority holdings by May 2, 2015, on the basis of the
authorization resolution granted by the shareholders' meeting on May 3, 2010,
make use of their option or conversion rights, or option or conversion
obligations arising out of such bonds are fulfilled and insofar as other forms
of fulfillment are not used. The new shares issued as a result of the exercising
of option or conversion rights or the fulfillment of option or conversion
obligations participate in the profits starting at the beginning of the
financial year in which they are acquired.
The Board
of Management shall be authorized, with the approval of the Supervisory Board,
to determine any other details concerning the implementation of the contingent
capital increase. The Supervisory Board shall be authorized to amend § 5
(5) of the Articles of Incorporation in accordance with the particular usage of
the contingent capital and after the expiry of all the option or conversion
periods.
|
|
III.
|
Changes
of the Articles of Incorporation
|
|
|
§ 5
(5) of the Articles of Incorporation shall be amended as
follows:
|
|
|
“(5)
|
The
Corporation’s capital stock is conditionally increased by up to
EUR 1,100,000,000, divided into up to 429,687,500 no par value shares
(contingent capital 2010). The contingent capital increase shall be
implemented only to the extent that
|
|
|
(a)
|
the
holders or creditors of bonds with warrants, convertible bonds, profit
participation rights and/or participating bonds (or combinations of these
instruments) with option or conversion rights, which are issued or
guaranteed by Deutsche Telekom AG or its direct or indirect majority
holdings by May 2, 2015, on the basis of the authorization resolution
granted by the ordinary shareholders' meeting on May 3, 2010, make use of
their option and/or conversion rights
or
|
|
|
(b)
|
persons
obligated under bonds with warrants, convertible bonds, profit
participation rights and/or participating bonds (or combinations of these
instruments) which are issued or guaranteed by Deutsche Telekom AG or its
direct or indirect majority holdings by May 2, 2015, on the basis of the
authorization resolution granted by the ordinary shareholders' meeting on
May 3, 2010, fulfill their option or conversion obligations and other
forms of fulfillment are not used. The new shares shall participate in
profits starting at the beginning of the financial year in which they are
issued as the result of the exercise of any option or conversion rights or
the fulfillment of any option or conversion obligations. The Supervisory
Board is authorized to amend § 5 (5) of the Articles of Incorporation
to reflect the utilization of the contingent capital and after the expiry
of all the option or conversion
periods."
|
This
translation is for courtesy purposes only. The German original
prevails.
|
14.
|
Resolution
on the change to Supervisory Board remuneration and related amendment of
§ 13 of the Articles of
Incorporation.
|
In light
of the additional responsibilities assumed by the Supervisory Board and the
requirements placed on it, the remuneration of its members is to be adjusted,
giving a longer-term focus and increased appropriately. The remuneration is
currently at the lower end of the scale for DAX-listed companies. The changes
proposed are expected to push the level of remuneration closer to the median in
a comparison of DAX companies. Specifically, fixed annual remuneration is to be
raised on a step-by-step basis through 2011, performance-based annual
remuneration be eliminated, measurement of the annual, performance-based
remuneration given a long-term, incentive-based focus, the attendance fee
increased, the limit on multipliers for committee memberships and chairmanships
discontinued and the multiplier for membership in the Audit Committee increased.
The modified provisions regarding Supervisory Board remuneration shall already
be applied in the 2010 financial year.
The Board
of Management and the Supervisory Board propose the adoption of the following
resolution:
§ 13
of the Articles of Incorporation shall be amended as follows:
|
|
”(1)
|
In
addition to reimbursement for cash expenses and value-added tax paid on
remuneration and expenses, the members of the Supervisory Board shall
receive:
|
|
|
(a)
|
a
fixed annual remuneration amounting to of EUR 30,000.00 for the 2010
financial year and EUR 40,000.00 for the following
years;
|
|
|
(b)
|
a
performance-related annual remuneration serving as a long-term incentive
amounting to EUR 1,000.00 for every EUR 0.02 by which the net
profit per no par value share in the second financial year (reference
year) following the financial year in question exceeds the net profit per
no par value share in the financial year preceding the financial year in
question. The performance-related annual remuneration serving as a
long-term incentive shall not, however, exceed
EUR 40,000.00.
|
|
|
(2)
|
The
Chairman of the Supervisory Board shall receive 2.0 times the amount, and
the Deputy Chairman, 1.5 times the amount, of remuneration pursuant to (1)
hereof.
|
|
|
(3)
|
Moreover,
the remuneration shall be increased by 0.5 times the amount pursuant to
(1) hereof for every membership on a Supervisory Board committee (or by
1.0 times this amount in the event of the Audit Committee) and by an
additional 0.5 times for every chairmanship held on Supervisory Board
Committee. The membership or chairmanship held on a committee formed
pursuant to § 27 (3) of the Codetermination Act or the Nomination
Committee shall not be taken into account when applying sentence
1a.
|
This
translation is for courtesy purposes only. The German original
prevails.
|
|
(4)
|
In
addition, members of the Supervisory Board shall receive an attendance fee
amounting to EUR 1,000.00 for each meeting of the Supervisory Board or its
committees that they attend.
|
|
|
(5)
|
Members
of the Supervisory Board who are on the Supervisory Board for only part of
the financial year in question shall receive one twelfth of the
remuneration for every month of membership or part thereof. The same shall
apply to the increase in remuneration for the Supervisory Board Chairman
and Deputy Chairman pursuant to (2) hereof and to the increase in
remuneration for Supervisory Board committee membership or chairmanship
pursuant to (3) hereof.
|
|
|
(6)
|
The
remuneration pursuant to (1) (a) hereof and the attendance fee shall fall
due at the end of the shareholders' meeting to which the consolidated
financial statements for the financial year in question are presented or
which decides on its approval. Remuneration pursuant to 1 (b) hereof shall
fall due at the end of the shareholders' meeting to which the consolidated
financial statements for the reference year are presented or which decides
on its approval.
|
|
|
(7)
|
In
calculating the remuneration pursuant to (1) hereof, the net profit
reported in the consolidated financial statements for the relevant
financial year that have been approved and endorsed with an unqualified
audit opinion shall be decisive. In calculating the net profit per no par
value share, the number of no par value shares issued (total number) at
the end of the financial year preceding the financial year in question and
at the end of the reference year, less the treasury shares held by the
Corporation at the relevant time, shall be
decisive.
|
|
|
(8)
|
If
the total number of the Corporation's no par value shares changes as a
result of a share split, a combining of no par value shares or a capital
increase from the Corporation's own resources by issuing new no par value
shares (capital transaction), the relevant number of no par value shares
pursuant to (7) sentence 2 hereof used for the purpose of calculating
the net profit per no par value share shall be adjusted for every such
capital transaction that occurs prior to the date that is decisive for the
calculation in order to avoid a dilution effect. The adjustment shall be
made by multiplying the relevant number of shares with the quotient
obtained by dividing the total number of no par value shares existing
immediately prior to the capital transaction by the total number of no par
value shares existing immediately after the capital
transaction."
|
The
Supervisory Board remuneration for the 2010 financial year shall be governed by
the remuneration provisions as amended above if the above amendment to the
Articles of Incorporation is entered in the commercial register in the course of
the current financial year.
This
translation is for courtesy purposes only. The German original
prevails.
|
15.
|
Resolution
on the amendment to § 2 of the Articles of
Incorporation.
|
New areas
of activity are opening up for the Company, some of which are related to
existing operating business, while others relate to associated businesses and
measures. The provisions governing the object of the enterprise in § 2 (1)
of the Articles of Incorporation shall be opened up and extended to facilitate
this development.
The Board
of Management and the Supervisory Board propose the adoption of the following
resolution:
§ 2
(1) of the Articles of Incorporation shall be amended as follows:
"The
object of the enterprise is to engage in all areas of telecommunications,
information technology, multimedia, information and entertainment, security
services, sales and brokerage services, e-banking, e-money, collection,
factoring, and reception and surveillance services as well as any services
connected with these areas, and in related areas in Germany and
abroad."
|
16.
|
Resolution
on the amendment to § 14 of the Articles of
Incorporation.
|
The ARUG
(Gesetz zur Umsetzung der Aktionärsrechterichtlinie – Act on the Implementation
of the Shareholder Rights Directive) dated July 30, 2009 changed the statutory
provisions for calculating the convocation period for the shareholders' meeting.
§ 14 (2) of the Articles of Incorporation shall be amended in line with
these changes.
The Board
of Management and the Supervisory Board propose the adoption of the following
resolution:
§ 14
(2) of the Articles of Incorporation shall be amended as follows:
|
|
“(2)
|
The
convocation must be published in the electronic Federal Gazette with a
notice period of at least thirty days prior to the date of the
shareholders' meeting, which notice period is to be extended by the number
of days of the application period pursuant to § 16 (1); the day on
which the shareholders' meeting is held and the day on which it is
convened shall not be counted."
|
|
17.
|
Resolution
on the amendment to § 15 of the Articles of
Incorporation.
|
In
November 2008, the federal government presented its draft bill for the ARUG. In
anticipation of the planned change contained in it regarding the legal
provisions relating to the broadcasting in audio and video of the shareholders'
meeting, the shareholders' meeting held on April 30, 2009 passed an amendment to
§ 15 (2) of the Articles of Incorporation. In this resolution the Board of
Management was instructed to apply to enter the amendment to § 15 (2) of
the Articles of Incorporation in the commercial register as soon as the ARUG
regarding the amendment of the current § 118 (3) AktG enters into force,
aside from any changes merely to the wording, its content corresponding to the
government draft bill. Since then, the ARUG has entered into force. However, the
content of the amendment of the current § 118 (3) AktG does
not
This
translation is for courtesy purposes only. The German original
prevails.
correspond
to the government draft bill and hence the Board of Management had to refrain
from applying to enter the resolution adopted on April 30, 2009 in the
commercial register. The shareholders' meeting shall therefore once again adopt
a resolution on an amendment to § 15 (2) of the Articles of Incorporation;
there is now no need to stipulate the conditions for registration.
The Board
of Management and the Supervisory Board propose the adoption of the following
resolution:
§ 15
(2) of the Articles of Incorporation shall be amended as follows:
|
|
“(2)
|
The
Board of Management shall be authorized to allow the broadcasting in audio
and video of the shareholders' meeting in full or in
part."
|
|
18.
|
Resolution
on the amendment to § 16 of the Articles of Incorporation to enable
online participation in the shareholders'
meeting.
|
The ARUG
dated July 30, 2009 authorized the Board of Management to include provisions in
the Articles of Incorporation so that shareholders can take also part in the
meeting without being present at the respective venue and without a proxy, and
exercise all or any of their rights in full or in part by means of electronic
communications (online participation). This option shall be used and § 16
of the Articles of Incorporation supplemented to include a relevant provision in
a new subparagraph 3.
The Board
of Management and the Supervisory Board propose the adoption of the following
resolution:
The
following subparagraph will be inserted as subparagraph 3 after the existing
subparagraphs of § 16 of the Articles of Incorporation:
|
|
“(3)
|
The
Board of Management shall be authorized to provide
that shareholders can also participate in the meeting without
being present at the respective venue and without a proxy, and exercise
all or any of their rights in full or in part by means of electronic
communications (online
participation)."
|
|
19.
|
Resolution
on the amendment to § 16 of the Articles of Incorporation to enable a
postal vote.
|
The ARUG
dated July 30, 2009 authorized the Board of Management to make provisions in the
Articles of Incorporation for shareholders to also cast their votes without
taking part in the meeting, in writing or by means of electronic communications
(postal vote). This option shall be used and § 16 of the Articles of
Incorporation supplemented to include a relevant provision in a new subparagraph
4. At the same time, steps must be taken to ensure that also those shareholders
that wish to cast their votes by means of a postal vote have to register in a
timely manner. To this end, § 16 (1) sentence 1 of the Articles of
Incorporation shall be deleted accordingly.
This
translation is for courtesy purposes only. The German original
prevails.
The Board
of Management and the Supervisory Board propose the adoption of the following
resolution:
In
§ 16 (1) sentence 1 of the Articles of Incorporation the words "at the
shareholders' meeting" shall be deleted; § 16 (1) sentence 1 of the
Articles of Incorporation shall be amended as follows:
"All
shareholders who are entered in the shareholders' register and have registered
on time with the Corporation shall be eligible to participate in and exercise
their voting rights at the shareholders’ meeting.”
The
following subparagraph will be inserted as subparagraph 4 after the existing
subparagraphs of § 16 of the Articles of Incorporation:
|
|
“(4)
|
The
Board of Management shall be authorized to provide that shareholders can
also cast their votes without taking part in the meeting, in writing or by
means of electronic communications
(postal vote)."
|
This
translation is for courtesy purposes only. The German original
prevails.
Board
of Management’s reports to the shareholders’ meeting
Board
of Management’s report on item 8 on the agenda: Report on the exclusion of
subscription rights in the event of sale of treasury shares pursuant to
§ 71 (1) no. 8 and § 186 (4) sentence 2 AktG, as well as on the
exclusion of any right to offer shares.
Item 8 on
the agenda contains the proposal to authorize the Company to acquire treasury
shares, with the amount of capital stock accounted for by these shares totaling
up to EUR 1,116,497,918.20 – which is 10% of the capital stock – by
November 2, 2011, pursuant to § 71 (1) no. 8 AktG. The existing
authorization to purchase treasury shares, which was granted by the
shareholders’ meeting on April 30, 2009, is due to expire on October 29, 2010
and therefore is to be replaced. The authorization granted to the Board of
Management by the shareholders’ meeting on April 30, 2009 to purchase treasury
shares shall expire when this new authorization takes effect; the authorizations
granted by the shareholders’ meeting resolution of April 30, 2009 on the use of
purchased treasury shares shall remain unaffected.
On the
basis of the new authorization proposed in item 8 on the agenda of this year's
shareholders' meeting, the Company can purchase treasury shares either on the
stock exchange or by means of a public offer to purchase or exchange shares that
is sent to all shareholders.
Under the
proposed authorization, if the Company purchases treasury shares by means of a
public purchase offer sent to all shareholders or a public share exchange offer
sent to all shareholders, the shares can be purchased on the basis of the ratio
of shares offered (offer quotas), providing the total number of shares offered
exceeds a volume specified by the Board of Management. Only if the purchase is
essentially made based on offer quotas rather than shareholding quotas will the
purchase process be economically viable. Furthermore, the possibility is to be
provided for preferential acceptance of small quantities of up to 100 shares
offered per shareholder. This option is designed on the one hand to avoid having
a small remainder of shares, which tends to be uneconomical, as well as
potentially discriminating against small shareholders. It also helps simplify
the technical aspects of the purchase process. Finally, provision can be made in
all instances to round off in accordance with proven commercial practice to
avoid arithmetic fractional shares. In this respect, the purchase quota and/or
the number of shares to be purchased by the individual shareholder using the
offer can be rounded off, in accordance with commercial practice, as necessary
to represent the purchase of whole shares in the processing system. In the
aforementioned cases, it is necessary to exclude any further right to offer
shares, and the Board of Management and the Supervisory Board are convinced that
such exclusion is justified, and reasonable vis-à-vis shareholders, for the
reasons specified above.
The
treasury shares can be purchased in accordance with the proposed authorization
of Deutsche Telekom AG directly or indirectly through dependent Group companies
of Deutsche Telekom AG within the meaning of § 17 AktG or third parties for
the account of Deutsche Telekom AG or for the account of the dependent Group
companies of Deutsche Telekom AG pursuant to § 17 AktG.
The
authorization in item 8 on the agenda provides for the possibility of resale of
acquired treasury shares, either through the stock exchange (in (c) of the
authorization) or via an offer sent to all shareholders (in (d) of the
authorization). At the same time, Deutsche Telekom AG is also to have the
possibility of selling treasury shares by means other than through the stock
exchange or through an offer to all shareholders, and to sell shares for cash
payment at a price which is not significantly lower than the market price (in
(e) of the authorization). In addition, Deutsche Telekom AG is to be able to use
repurchased treasury shares to list shares on foreign stock markets on which the
Company's shares have not yet been listed ((f) of the authorization).
Furthermore, the Company is to have the option of purchasing treasury shares so
that it can offer and/or grant these to third parties in the context of mergers
or acquisitions of companies, business units or interests in companies,
including increasing existing investment holdings, or other assets eligible for
contribution for such acquisitions, including receivables from the Company ((g)
of the authorization). In addition, the Company shall have the option of using
treasury shares to fulfill option and/or conversion rights and obligations from
bonds issued by the Company, either directly or by a company in which the
Company has a (direct or indirect) majority holding ((h) of the authorization)
under item 13 on the agenda. Furthermore, the authorization provides for the
possibility of offering and/or granting acquired shares, as employee shares, to
employees of Deutsche Telekom AG, and of lower-tier affiliated companies ((i) of
the authorization). However, Deutsche Telekom AG will also have the option of
redeeming treasury shares without a renewed resolution of the shareholders’
meeting ((j) of the authorization). Finally, the Supervisory Board will be able
to use Deutsche Telekom AG shares to fulfill rights of Board of Management
members to transfer Deutsche Telekom AG shares, which the Supervisory Board has
granted to these members as part of the arrangements governing Board of
Management remuneration (under (k) of the authorization).
The cases
in which subscription rights can be excluded are listed in (l) of the proposed
authorization. Under (l) the subscription rights of shareholders can be excluded
if the Board of Management uses Deutsche Telekom AG shares in accordance with
the authorizations under c), e), f), g), h) and i), and if the Supervisory Board
uses Deutsche Telekom AG shares in accordance with the authorization under k).
Regarding specific aspects of the aforementioned mentioned cases of exclusion of
subscription rights:
Re. (c) of the
authorization:
If the
Board of Management sells treasury shares on the stock exchange, shareholders do
not have any subscription rights. Under § 71 (1) no. 8 sentence 4
AktG, the disposal of the Company's treasury shares through the stock exchange –
as well as the acquisition of these shares through the stock exchange – is
sufficient for the purposes of complying with the principle of equal treatment
pursuant to § 53a AktG.
This
translation is for courtesy purposes only. The German original
prevails.
Re. (e) of the
authorization:
Pursuant
to § 71 (1) no. 8 sentence 5 AktG in conjunction with § 186 (3)
sentence 4 AktG, the Board of Management shall be authorized, with the approval
of the Supervisory Board, to sell the repurchased shares of Deutsche Telekom AG,
excluding the subscription rights of the shareholders, with this part of the
capital stock representing no more than 10% of the capital stock other than
through the stock exchange or an offer to all shareholders for a cash payment at
a price that is not significantly lower than the market price of Company shares
of equal ranking on the date of sale. The price at which repurchased treasury
shares are sold to third parties must not be less than a price 5% below the
market price determined by the opening auction in the Xetra trading system (or a
subsequent system) of Deutsche Börse AG on the day of the binding agreement with
the third party. That is a consequence of (m) of the authorization. If on the
day concerned no such market price is determined or is not determined by the
time of the binding agreement with the third party, then the last closing price
of the Deutsche Telekom AG share determined in the Xetra trading system (or a
subsequent system) of Deutsche Börse AG shall be decisive instead. The final
price at which Company shares are sold is set just before they are
sold.
This
option of selling repurchased treasury shares to the exclusion of subscription
rights for cash payment serves the interests of the Company to attain the best
possible price when selling treasury shares. The option of excluding
subscription rights in accordance with § 186 (3) sentence 4 AktG
enables the Company to take advantage of opportunities arising from any given
situation on the stock market to place shares quickly, flexibly and
cost-effectively. The amount realized by setting a price close to market levels
tends to result in a considerably higher inflow of cash than would be the case
if the stock placement included shareholders' subscription rights. By dispensing
with the processing of subscription rights, which is a time-consuming, expensive
process, the equity required can also be furnished in a timely manner through
market opportunities that arise at short notice. Although § 186 (2)
sentence 2 AktG permits when granting subscription rights the announcement of
the subscription price no later than three days before the expiry of the
subscription period, this also entails a risk given the volatility of the stock
markets, i.e., a risk of a price change over several days, which can lead to
safety margins being deducted when fixing the sales price and thus to conditions
which are not optimal. In addition, the Company, when granting subscription
rights, is unable to respond quickly to favorable or unfavorable market
conditions due to the length of the subscription period.
This
option of selling treasury shares under the best possible conditions and without
a significant subscription rights markdown is especially important for the
Company because it must be able to swiftly and flexibly exploit market
opportunities that change rapidly and arise in new markets. In view of this, it
can be necessary, or at least useful, to borrow funds at short
notice.
The
proposed authorization is limited to a maximum of up to 10% of the Company's
capital stock. In principle, the Company's capital stock on the date the
resolution is adopted at the shareholders’ meeting on May 3, 2010 is decisive.
Should the capital stock be reduced, for example through the redemption of
repurchased treasury shares, the amount of capital stock on the date of the sale
of the shares is decisive. The authorized volume should be decreased by the
proportion of capital stock that is accounted for by the shares or that relates
to option and/or conversion rights and obligations from bonds issued or sold
since the shareholders’ meeting on May 3, 2010 adopted the resolution
directly pursuant to, in accordance with or analogous to § 186 (3) sentence
4 AktG. This should ensure that the 10% limit provided for in § 186 (3)
sentence 4 AktG is observed taking into account all authorizations with the
option of excluding subscription rights in accordance with § 186 (3)
sentence 4 AktG. Due to the fact that the authorization is limited to this level
and the sales price for the Company's shares to be granted has to be oriented to
the market price, shareholders’ financial interests and voting rights are
suitably safeguarded when treasury shares are sold to third parties and
shareholders’ subscription rights excluded on the basis of the provision in
§ 71 (1) no. 8 sentence 5 in conjunction with § 186 (3) sentence 4
AktG. As things currently stand, shareholders who wish to receive their relative
interest and relative share of voting rights have the opportunity to purchase
the number of shares required for this through the stock exchange. Around 68.3%
of the shares of Deutsche Telekom AG are in free float. The total trading volume
in the 2009 calendar year corresponded to over 122% of the Company's capital
stock.
This
translation is for courtesy purposes only. The German original
prevails.
Re. (f) of the
authorization:
The
subscription rights of the shareholders are also to be excluded if the Board of
Management uses the repurchased shares of Deutsche Telekom AG, with the approval
of the Supervisory Board, to list the Company's shares on foreign stock
exchanges on which the shares have not yet been listed. Deutsche Telekom AG is
engaged in fierce competition on the international capital markets. For its
future business development, it is of crucial importance that the Company be
appropriately endowed with equity capital and have the opportunity to obtain
equity capital on the market at all times and under appropriate conditions. For
this reason, Deutsche Telekom AG is endeavoring to broaden its base of
shareholders in other countries as well and to make investment in the Company's
shares an attractive proposition. Deutsche Telekom AG needs to be able to tap
into the world’s major capital markets. The price at which the repurchased
treasury shares are listed on foreign stock exchanges may not be more than 5%
below the market price established by the opening auction in the Xetra trading
system (or a subsequent system) of Deutsche Börse AG on the first day of
listing. That is a consequence of (m) of the authorization. If on the day
concerned no such market price is determined, or is not determined by the time
of the initial public offering, then the last closing price of the Deutsche
Telekom AG share determined in the Xetra trading system (or a subsequent system)
of Deutsche Börse AG shall be decisive instead.
Re. (g) of the
authorization:
The
subscription rights of shareholders should also be excluded if the Board of
Management, with the approval of the Supervisory Board, offers and/or grants the
repurchased Deutsche Telekom AG shares to third parties in the context of
mergers or acquisitions of companies, business units or interests in companies,
including increases of existing investment holdings, or other assets eligible
for contribution for such acquisitions, including receivables from the
Company.
Deutsche
Telekom AG is engaged in national and global competition. It must therefore
always be in a position to act swiftly and flexibly on national and
international markets. This includes the opportunity to improve its competitive
position through mergers with other companies or the acquisition of companies,
business units and interests in companies. This also includes increasing
investments in Group companies.
The
optimal use of this opportunity in the interest of shareholders and the Company
involves, in individual cases, carrying out the merger or the acquisition of
companies, business units or interests in companies by offering the shares of
the acquiring company. It has been seen in practice both on international and
national markets that the acquirer's shares are often requested as the
consideration for attractive acquisitions. For this reason, Deutsche Telekom AG
must be given the opportunity to offer and/or grant shares as consideration for
mergers or acquisitions of companies, business units or interests in
companies.
In
addition, the motion for resolution makes express provisions for the exclusion
of shareholders' subscription rights in order to offer and/or grant repurchased
shares to acquire assets eligible for contribution in connection with the
acquisition of companies, business units or interests in companies. In the case
of an acquisition, it can make economic sense to acquire other assets in
addition to the actual object acquired, for example those which serve the
economic purposes of the acquired object. This applies in particular if a
company that is being acquired does not own the industrial or intangible
property rights relating to its operations. In such and comparable cases,
Deutsche Telekom AG must be in a position to acquire assets related to the
acquisition plan and to offer shares as a consideration for this – because the
seller requests it, for example. A prerequisite in this respect is that the
assets concerned be eligible for contribution in the event of a non-cash capital
increase.
The Board
of Management will, in particular, also be entitled to exclude shareholders'
subscription rights in order to grant the owners of receivables from Deutsche
Telekom AG – whether securitized or unsecuritized – arising in connection with
the sale of companies, business units or interests in companies to Deutsche
Telekom AG shares in Deutsche Telekom AG wholly or partially in lieu of the cash
payments. In cases where, for example, the Company has initially agreed to pay
in cash for the acquisition of a company or an interest in a company, this may
give the Company the added flexibility of subsequently offering shares in lieu
of cash, thus protecting its liquidity. In individual cases, this procedure may
be more beneficial than financing the purchase price through prior disposal of
any repurchased shares over the stock exchange, where negative price effects are
conceivable.
This
translation is for courtesy purposes only. The German original
prevails.
The
authorized capital 2009/I pursuant to § 5 (2) of the Articles of
Incorporation can also be used to grant shares in the context of mergers or
acquisitions of companies, business units or interests in companies, including
increasing existing investment holdings, or other assets eligible for
contribution for such acquisitions, including receivables from the Company.
However, it should also be possible to use repurchased treasury shares as an
acquisition currency. The proposed authorization is designed to give Deutsche
Telekom AG the leeway it requires to flexibly exploit opportunities for mergers
or the acquisition of companies, business units or interests in companies or
other assets eligible for contribution for such acquisitions and in doing so to
also provide shares as a consideration without increasing capital – something
which is more time-consuming given the need for entry in the commercial register
– where this is appropriate.
To be
able to carry out such transactions swiftly and with the necessary flexibility,
the Board of Management needs to be authorized to grant treasury shares
excluding shareholders' subscription rights. Such a decision will be contingent
on the Supervisory Board's approval, however. When subscription rights are being
granted, mergers and the acquisition of companies, business units or interests
in companies or other assets eligible for contribution for such acquisitions in
exchange for the granting of repurchased shares are not possible, and the
Company and its shareholders cannot benefit from the associated
advantages.
There are
currently no concrete plans to make use of this authorization. When specific
opportunities arise for mergers or acquisition of companies, business units or
interests in companies, or there is an opportunity to acquire other assets
eligible for contribution for such acquisitions, the Board of Management shall
examine each case to decide whether to use treasury shares for this, excluding
shareholders' subscription rights. The Board of Management shall only use the
authorization if it is convinced that issuing Deutsche Telekom AG shares for a
merger or acquisition is in the best interests of the Company. In such cases,
the Board of Management will also carefully review and ascertain that the value
of the non-cash contribution is commensurate with the value of the
shares.
Re. (h) of the
authorization:
In
addition, the Company will have the option of using repurchased shares to
fulfill option and/or conversion rights and obligations from bonds issued by the
Company, either directly or by a company in which the Company has a (direct or
indirect) majority holding, on the basis of the authorization under item 13 on
the agenda. Instead of increasing capital, it may be appropriate at times to use
the Company's shares entirely or partially to fulfill subscription rights to
treasury shares arising from such bonds, since such action is a suitable way of
counteracting the dilution of capital stock, and of the voting rights of
shareholders, that can occur to some extent if such rights are fulfilled by
creating new shares. The authorization therefore provides for treasury shares to
be used in such a way. In such cases, shareholders' subscription rights shall
also be excluded.
Re. (i) of the
authorization:
The Board
of Management shall also be authorized to offer and/or grant repurchased shares
to employees of Deutsche Telekom AG and of lower-tier affiliated companies
(employee shares). Repurchased shares can also be transferred to a bank, or to
some other company meeting the requirements of § 186 (5) sentence 1
AktG, that assumes the obligation to use the shares exclusively for the purpose
of granting employee shares. The Board of Management may also acquire shares
that are to be granted as employee shares via a securities loan from a bank, or
from some other company meeting the requirements of § 186 (5) sentence
1 AktG, and then use repurchased shares to repay this securities loan. In such
cases, shareholders' subscription rights shall be excluded.
Deutsche
Telekom AG is to be put in a position to promote employee ownership of company
stock by granting employee shares. Granting employee shares serves the purpose
of integrating employees, increasing their willingness to help shoulder
responsibility and enhancing their loyalty to the company. Granting employee
shares is thus in the interest of the Company and its shareholders. It is in
keeping with the intent of the law, and it is facilitated by law in many ways.
When treasury shares are being granted as employee shares, special terms and
conditions may be conceded that are in line with the provisions on the granting
of tax privileges set out in the MKBG (Mitarbeiterkapitalbeteiligungsgesetz - Employee Share Ownership
Act ) dated March 7, 2009. The granting of treasury shares on grounds of
membership of a management or supervisory body at Deutsche Telekom AG or one of
its lower-tier affiliated companies must and can be excluded on the basis of the
proposed authorization for use.
In
addition to granting shares directly to employees, it will also be possible for
shares to be taken over by a bank, or by some other company meeting the
requirements of § 186 (5) sentence 1 AktG with the obligation to use
the shares exclusively for the purpose of granting employee shares. Shares will
then be granted to employees through the company that has taken over the shares
and is acting as an intermediary. With this possibility, therefore, offering
employee shares can be facilitated, for example, by having a bank largely
carrying out the procedure.
In
addition, employee shares may be acquired via securities loans from a bank, or
some other company meeting the requirements of § 186 (5) sentence 1
AktG, and repurchased shares may be used to repay these securities loans. Using
a securities loan to acquire shares to be granted to employees also facilitates
the process of offering employee shares. In particular, it makes it possible to
reacquire precisely the volume of shares needed for granting employee shares at
a given time. The shares acquired in the context of the proposed purchase
authorization will thus not only be used for granting shares to the employees
themselves, but can also be used to meet lenders’ claims to repayment of loans.
In terms of the economic effect, the shares would also be used to grant them to
employees.
It is
true that, pursuant to § 5 (3) of the Articles of Incorporation, authorized
capital 2009/II may be issued to grant shares to employees of Deutsche Telekom
AG and of lower-tier affiliated companies and to repay securities loans. In the
interest of maximum flexibility and cost-effectiveness, however, it will also be
possible to repurchase shares on the basis of § 71 (1) no. 8 AktG and
to offer and/or grant such repurchased shares to employees. In cases
in
which
only small numbers of shares are required, or additionally required, for an
employee share program, such a procedure may be more cost-effective than a
capital increase, which involves certain expenditure for implementation, and the
admission of shares from authorized capital 2009/II to trading.
This
translation is for courtesy purposes only. The German original
prevails.
Apart
from the authorization pursuant to (i), it is possible, without the
authorization of the shareholders' meeting, to repurchase shares on the basis of
§ 71 (1) no. 2 AktG and to offer the repurchased shares to employees
for subscription. Reacquisition on the basis of § 71 (1) no. 2 AktG
does not fall within the category of "safe harbor" privileges, however, in which
insider dealing and market manipulation are prohibited by law pursuant to
provisions of Commission Regulation (EC) no. 2273/2003 of 22 December 2003
implementing Directive 2003/6/EC of the European Parliament and of the Council
as regards exemptions for buy-back programs and stabilization of financial
instruments (OJ L EU 336 p. 33). For this reason, a pertinent authorization of
the shareholders' meeting would be required if safe harbor privileges were to be
claimed for acquisition and granting of shares to be admitted as employee
shares.
Re. (k) of the
authorization:
Furthermore,
the Supervisory Board shall be authorized to use the repurchased shares to
fulfill the rights of Board of Management members to the transfer of Deutsche
Telekom AG shares which the Supervisory Board has granted to these members as
part of the arrangements governing Board of Management
remuneration.
Issuing
shares to Board of Management members may increase their loyalty to the Company.
At the same time it is possible to create variable remuneration components, with
management bonuses not being paid out in cash but in shares, which are then,
however, subject to a lock-up (pursuant to § 193 (2) no. 4 AktG at least
four years) during which time the Board of Management member concerned cannot
sell the shares. Consequently, the aim of the VorstAG dated July 31, 2009 as
well as the redrafting of item 4.2.3 of the German Corporate Governance Code can
be taken into account, which call for not only positive but also negative
developments regarding Board of Management remuneration to be considered. The
granting of shares with a lock-up on selling them over several years can, in
particular, create not just a bonus but also a genuine penalty effect in the
event of negative developments. This tool therefore brings about greater
financial co-responsibility of the Board of Management members, in the interests
of the Company and its shareholders.
Specifically,
the Supervisory Board has put in place provisions that oblige the Board of
Management members to invest one third of the short-term variable
performance-related remuneration stipulated by the Supervisory Board in the form
of personal investment in Deutsche Telekom AG shares. For each share purchased
in this way, Deutsche Telekom AG will provide the Board of Management member
with another share. These shares are locked up for a period of 4 years so that
Board of Management members cannot access the shares furnished by the company
before the 4 years have expired. This is part of the new remuneration system for
Board of Management members adopted by the Supervisory Board on February 24,
2010, details of which are available on the Internet at
http://www.telekom.com/hauptversammlung
and will
also be available for inspection during the shareholders’ meeting.
Regarding exclusion of
subscription rights for fractional amounts pursuant to (l) of the
authorization:
Finally,
the Board of Management is to be entitled to exclude shareholder subscription
rights for fractional amounts with the approval of the Supervisory Board when
offering treasury shares for sale to the Company's shareholders. The possibility
of excluding subscription rights for fractional amounts serves the purpose of
practically implementing the subscription ratio. The treasury shares excluded
from shareholders’ subscription rights as free fractional shares are realized by
selling them on the stock exchange or in some other way at the best price
available for the Company. Due to the limitation to fractional amounts the
potential dilution effect is low.
Considering
all the aforementioned facts and circumstances, the Board of Management and the
Supervisory Board regard the exclusion of subscription rights in the
aforementioned cases, also making allowance for the dilution effect arising from
the exercise of the authorizations in question to the disadvantage of the
shareholders, as justified and reasonable vis-à-vis shareholders for the reasons
given. The Board of Management shall report to the shareholders’ meeting on the
details of any plans to make use of the authorization to buy back treasury
shares.
This
translation is for courtesy purposes only. The German original
prevails.
Report
of the Board of Management on item 13 on the agenda: Report on the exclusion of
subscription rights when issuing bonds with warrants, convertible bonds, profit
participation rights and/or participating bonds (or combinations of these
instruments) pursuant to § 221 (4) sentence 2 and § 186 (4) sentence 2
AktG.
Issuing
bonds with warrants, convertible bonds, profit participation rights and/or
participating bonds (or combinations of these instruments) (hereinafter
collectively also referred to as "bonds") provides attractive financing options.
Since the previous authorization of the shareholders' meeting on April 26, 2005
to issue bonds with warrants or convertible bonds expires on April 25, 2010
without use being made thereof, a new authorization will be created which is
tailored to market developments and the Company's current financial
circumstances. To service the option or conversion rights and obligations in the
event that use is made of the new authorization, a resolution shall be adopted
regarding new contingent capital (contingent capital 2010) with the cancellation
of the previous contingent capital pursuant to § 5 (5) of the Articles of
Incorporation (contingent capital IV).
Issuing
bonds offers Deutsche Telekom AG, in addition to the classic options of
borrowing funds and raising shareholders’ equity, the option of utilizing
attractive financing alternatives on the capital market depending on the market
situation and thus creating the ideal conditions for future business
development. The issue of bonds enables the borrowing of funds under attractive
conditions. The granting of option and/or conversion rights also provides the
Company with the opportunity of retaining the funds raised through the issue of
bonds, in full or in part, as shareholders’ equity or, depending on the
structuring, classify such funds as shareholders’ equity or equivalent to
shareholders’ equity for creditworthiness checks and for balance sheet purposes
even before the option is exercised or the bonds converted. The warrant and
conversion premiums obtained as well as any shareholders’ equity classification
accrue to the Company's capital base. The additional option of combining bonds
with warrants, convertible bonds, profit participation rights and/or
participating bonds provides even greater leeway for structuring these financing
instruments. Hybrid financing instruments increasingly include forms of
financing which also provide for an unlimited maturity term and as such the
authorization makes no provisions for any limited term for the issue of bonds.
The authorization also gives the Company the flexibility it needs to tap the
German capital market or, in particular, via majority holdings, the
international capital market, depending on the market situation.
With
regard to the authorization resolution proposed for this item on the agenda, a
distinction needs to be drawn in respect of the exclusion of subscription
rights: The Board of Management shall be authorized primarily, with the approval
of the Supervisory Board, to issue on one or more occasions by May 2, 2015 bonds
and attach option or conversion rights to the respective partial bonds, which
entitle the buyers in accordance with the terms and conditions of the bond to
subscribe to Deutsche Telekom AG shares with a proportion of the capital stock
of up to EUR 1,100,000,000. The authorization shall not affect insofar the
statutory subscription rights of shareholders. To make the process easier, use
shall however be made of the option of issuing the bonds to one or several banks
or the members of a consortium of banks or issue these pursuant to § 186
(5) sentence 1 AktG to equivalent companies with an obligation to offer the
bonds to shareholders in accordance with their subscription rights (indirect
subscription right within the meaning of § 186 (5) AktG).
As part
of this general authorization, the Board of Management is also authorized to
exclude the statutory right of shareholders to subscribe to the bonds, however
only within certain limits: on the one hand, only to a limited extent for two
specific purposes, and also to a greater extent only if specific narrow
requirements are met. In the case of exclusion only to a limited extent, the
subscription rights shall only be excluded to the extent required in order to be
able to settle any fractional amounts produced when stipulating the subscription
ratio or to be able to grant subscription rights to holders or creditors
(hereinafter collectively referred to as "holders") of bonds that have already
been issued. Fractional amounts may occur with regard to the respective volume
of issues and the implementation of a practical subscription ratio. The
exclusion of subscription rights makes it easier to handle capital measures, in
particular subscription rights of shareholders, in such cases. Subscription
rights in favor of the holders of bonds that have already been issued are
excluded, considering the protection against dilution of capital, which is
generally granted to them under the terms and conditions of the bonds. The
exclusion of subscription rights in the case of exercising this authorization is
an alternative to adjusting the option or conversion price, which may otherwise
be necessary. Overall, it is possible to increase the cash inflow for the
Company with this approach.
This
translation is for courtesy purposes only. The German original
prevails.
With a
further exclusion of subscription rights for bonds with an option or conversion
right and obligation, use is made of the option provided by the intent of the
law in § 221 (4) sentence 2, § 186 (3) sentence 4 AktG of
excluding the subscription rights, "if the capital increase in exchange for cash
contributions does not exceed ten percent of the capital stock and the issue
price is not lower than the market price" (hereinafter also referred to as
"simplified exclusion of subscription rights"). The number of shares accounted
for by the bonds, for which the subscription rights pursuant to § 221 (4)
sentence 2, § 186 (3) sentence 4 AktG can be excluded, is limited to
10% of the capital stock. That is currently EUR 1,116,497,918.20. In
principle, the Company's capital stock at the time the resolution is adopted at
the shareholders’ meeting on May 3, 2010 is decisive. Should the capital stock
be reduced, for example through the redemption of repurchased treasury shares,
the amount of capital stock on the date the authorization is exercised is
decisive. The authorized volume should be decreased by the proportion of capital
stock that is accounted for by the shares or that relates to option and/or
conversion rights and obligations from bonds issued or sold since the
authorization was granted directly pursuant to, in accordance with or analogous
to § 186 (3) sentence 4 AktG. This should ensure that the 10% limit
provided for in § 186 (3) sentence 4 AktG is observed taking into account
all authorizations with the option of excluding subscription rights in
accordance with § 186 (3) sentence 4 AktG.
In the
case of simplified exclusion of subscription rights, the Board of Management
will also not stipulate an issue price that is significantly lower than the
theoretical market value of the bonds determined in accordance with recognized
financial methods, thus ensuring that insofar the provisions of § 186 (3)
sentence 4 AktG are also complied with.
The
simplified exclusion of subscription rights will enable the Board of Management,
with the approval of the Supervisory Board, to tap capital markets quickly and
at short notice to bolster its capital base and achieve optimum conditions by
fixing conditions in line with the market. The placement under simplified
exclusion of subscription rights of shareholders opens up the opportunity of a
higher inflow of cash per bond than would be the case if issuing with
subscription rights. It is decisive that the Company obtains the necessary
flexibility through the exclusion of subscription rights to perceive short-term
favorable stock market situations. Although § 186 (2) AktG permits when
granting subscription rights the announcement of the subscription price (and
thus with bonds the associated conditions) no later than three days before the
expiry of the subscription period, this also entails a market risk given the
volatility of the stock markets - in particular, the risk of a price change over
several days which can lead to safety margins being deducted when fixing the
terms and conditions of the bonds and thus to conditions which are not in line
with those of the market. The successful placement is also jeopardized among new
investors, and in any event involves additional expenses, if a subscription
right exists due to the uncertainty about whether this right will be exercised
(subscription behavior). Ultimately, the Company, when granting subscription
rights, is unable to respond quickly to favorable or unfavorable market
conditions due to the length of the subscription period. Moreover, this type of
placement can help secure new investors in Germany and abroad using the
simplified exclusion of subscription rights. When allocating the bonds to one or
more investors, the Board of Management will be geared solely by the Company's
interests.
The
shareholders' need for protection in the case of simplified exclusion of
subscription rights – in addition to the limited scope of the authorization – is
taken into account by means of fixing the issue price not significantly lower
than the market value of the respective bond. This is designed to prevent any
significant economic dilution of the value of the Company's shares. Whether or
not such a dilution effect has occurred can be determined by calculating the
hypothetical market value of the respective bond according to recognized
financial methods, and comparing this with the issue price. If, after the
compulsory Board of Management review, this issue price is only insignificantly
lower than the hypothetical market price (market value) on the date of the issue
of bond, an exclusion of subscription rights is permissible for the purposes of
§ 221 (4) sentence 2 and § 186 (3) sentence 4 AktG. In this case the
value of a subscription right is virtually zero. Consequently, shareholders do
not suffer any significant economic disadvantage as a result of the exclusion of
the subscription right. If the Board of Management considers it appropriate to
ask for competent advice in certain situations, it can apply to third parties
for support. A bank involved in the issue or an expert third party may have a
suitable means of ensuring that a significant dilution in the aforementioned
sense is not to be expected. Moreover, shareholders have an opportunity to
maintain their share of the Company’s capital stock by purchasing the shares
needed for this on the stock exchange under approximately the same conditions.
Around 68.3% of the shares of Deutsche Telekom AG are in free float. The total
trading volume in the 2009 calendar year corresponded to over 122% of the
Company's capital stock.
If profit
participation rights or participating bonds without option or conversion rights
and obligations are issued, the Board of Management shall be authorized, with
the approval of the Supervisory Board, to exclude subscription rights of
shareholders overall if these profit participation rights or participating bonds
entail obligation-like terms, i.e. do not constitute any membership rights in
the company, do not grant any participation in liquidation proceeds and the
amount of interest is not calculated on the basis of the amount of net
income/loss, unappropriated net income or the dividend. The interest and the
issue price of the profit participation rights or participating bonds must also
correspond to comparable borrowing under the current market conditions on the
date of issue. If the aforementioned prerequisites are met, shareholders do not
suffer any disadvantages as a result of the exclusion of subscription rights,
since the profit participation rights or participating bonds do not constitute
any membership rights nor grant any portion of the liquidation proceeds or
Company profit. Provisions can be made so that the interest depends on the
existence of net income (loss), unappropriated net income or a dividend. By
contrast, a provision would be inadmissible under which a higher net income,
higher unappropriated net income or a higher dividend led to higher interest.
Hence the issue of profit participation rights or participating bonds neither
modifies nor dilutes the voting rights nor the participation of the shareholders
in the Company and its profits. In addition, the issue conditions in line with
the market, which are binding in this case of exclusion of subscription rights,
do not constitute any significant value of the subscription right.
The
proposed contingent increase of the capital stock by up to
EUR 1,100,000,000 (contingent capital 2010) is only designed to ensure the
issue of the necessary Deutsche Telekom AG shares when option or conversion
rights are exercised, or option or conversion obligations fulfilled, insofar as
these are required, and authorized capital or treasury shares or other forms of
fulfillment are not used.
Considering
all the aforementioned facts and circumstances, the Board of Management and the
Supervisory Board regard the exclusion of subscription rights in the
aforementioned cases, also making allowance for the dilution effect arising from
the exercise of the authorizations in question to the disadvantage of the
shareholders, as justified and reasonable vis-à-vis shareholders for the reasons
given.
This
translation is for courtesy purposes only. The German original
prevails.
Right
to attend,
voting rights and voting by
proxy
Conditions
for attendance and exercising voting rights
Under
§ 16 (1) of the Articles of Incorporation, shareholders are eligible
to attend the shareholders' meeting and to exercise their voting rights if they
have been entered in the shareholders' register and have registered for
attendance by
Monday,
26 April 2010, midnight (CEST) at the latest;
with such
registration being addressed to the Company at:
DTAG
Hauptversammlung 2010
c/o
ADEUS Aktienregister-Service-GmbH
20683
Hamburg, Germany
or by
fax to +49-228-181-78879
or by
e-mail to hauptversammlung.bonn@telekom.de
or by
using the password-protected Internetdialog using the
system provided for this purpose on the following website:
http://www.hv-telekom.com
The
registration must be received by the above date in order to be deemed to have
been made on time.
An online
password is required in addition to the shareholder number in order to register
using the password-protected Internetdialog. Shareholders who have already
registered for electronic transmission of the documents relating to the
shareholders' meeting may use the online password they chose in this connection.
All other shareholders will be sent an online password with the invitation to
the shareholders' meeting, provided they have been entered in the shareholders'
register before the beginning of 19 April 2010. In order to use the system
allowing them to register using the password-protected Internetdialog,
shareholders must have been entered in the shareholders' register before the
beginning of 19 April 2010. The password-protected Internetdialog will be
available from 9 April 2010 onwards. Further information on the procedure
for registering using the password-protected Internetdialog is available on the
above website.
Pursuant
to § 67 (2) sentence 1 of the German Stock Corporation Act (Aktiengesetz; AktG), a person
is deemed to be a shareholder only if registered as such in the shareholders'
register. The right to attend and vote at the shareholders' meeting is
conditional upon the shareholder still being registered as a shareholder in the
shareholder register on the day of the shareholders' meeting. The number of
shares registered in the shareholders' register on the day of the shareholders'
meeting will be material in determining the number of voting rights which a
person eligible to attend the shareholders' meeting may exercise. For
administrative reasons, however, no transfers may be effected in the
shareholders' register in the period from (and including) Tuesday, 27 April
2010 to (and including) the day of the shareholders' meeting, i.e. Monday,
3 May 2010. The status of entries in the shareholders' register on the day
of the shareholders' meeting is thus identical to the status of entries
following the last transfer on Monday, 26 April 2010.
Banks
(Kreditinstitute) and shareholders'
associations, as well as other commercial entities or associations which have
the status of banks according to § 135 (8) AktG or according to
§ 135 (10) in conjunction with § 125 (5) AktG may only
exercise voting rights pertaining to registered shares which they do not own but
in respect of which they are entered in the shareholders' register as the bearer
if they have been granted appropriate authorization. For more details of this
authorization, please consult § 135 AktG.
This
translation is for courtesy purposes only. The German original
prevails.
Voting
by proxy
Shareholders
are able to have their voting rights exercised by a proxy, e.g. by a bank,
shareholders' association or by proxies appointed by the Company. Timely
registration is also required in such cases (see "Conditions for attendance and
exercising voting rights" above). It is possible to appoint a proxy both prior
to and during the shareholders' meeting, and such proxy may even be appointed
prior to registration. Proxies may be appointed by way of the shareholder making
a declaration either to the relevant proxy or to the Company. The proxy
attending the general meeting may in principle, i.e. insofar as neither the
law, nor the relevant shareholder nor the proxy provides for restrictions or
other qualifications, exercise the voting right in the same way as the
shareholder could.
With the
exception of the special provisions set out in paragraph c) below, neither
any provision of law nor the Articles of Incorporation nor any other
requirements specified by the Company demand that certain forms are used in
order to grant proxy authorization. In the interests of problem-free
processing, however, we ask that the forms provided are always used when
granting proxy authorizations if such authorization is granted by way of a
declaration made to the Company. Forms which can be used to appoint a
proxy as part of the registration process will be sent to shareholders together
with the invitation to the shareholders' meeting. Shareholders will receive a
registration and proxy form which can be used in the context of paragraphs a)
and c) below to order admission tickets for a proxy or to grant authorization to
a Company-appointed proxy and to issue instructions to such proxy. The
password-protected Internetdialog also includes electronic forms which can be
used in the context of paragraphs a) and c) below for appointing a proxy and, as
necessary, issuing instructions either at the time of registration (ordering
admission tickets for a proxy or granting authorization to a Company-appointed
proxy and issuing instructions to such proxy) or at a later stage. The admission
tickets issued in response to an order or generated via the password-protected
Internetdialog also contain a form for granting authorization. Moreover, the
block of voting cards which shareholders attending the shareholders' meeting
receive on being admitted to the meeting contains cards for granting
authorization and issuing instructions, as necessary, during the shareholders'
meeting. A form is also available on the Internet which can be used for granting
authorization and issuing instructions, as necessary (see "Further information
and notes on the shareholders' meeting", below).
Shareholders
wishing to make use of the opportunity to vote by proxy should in particular
note the following:
|
a)
|
If
the appointment of a proxy does not fall within the scope of application
of § 135 AktG (i.e. if the proxy appointed is not a bank,
shareholders' association or other commercial entity or association which
has the status of a bank according to § 135 (8) AktG or according to § 135
(10) in conjunction with § 125 (5) AktG and the appointment of the proxy
does not fall within the scope of application of § 135 AktG on any
other grounds), the following applies: The authorisation must be granted
or revoked and evidence of the proxy authorization must be provided to the
Company in text form in accordance with § 134 (3)
sentence 3 AktG (§ 126b of the German Civil Code (Bürgerliches
Gesetzbuch; BGB)). Pursuant to
§ 134 (3) sentence 3 AktG in conjunction with
§ 16 (2) sentence 2 of the Articles of Incorporation, the
authorization may also be granted or revoked and evidence of the proxy
authorization provided to the Company by fax (+49-228-181-78879) or via
the password-protected Internetdialog using the system provided for this
purpose on the above website (http://www.hv-telekom.com). Pursuant to
§ 16 (2) sentence 3 of the Articles of Incorporation, this
does not affect any other forms of granting or revoking authorization or
providing evidence of proxy authorization to the Company which are
permitted directly by law. An online password is required in addition to
the shareholder number in order to use the password-protected
Internetdialog. Shareholders who have already registered for electronic
transmission of the documents relating to the shareholders' meeting may
use the online password they chose in this connection. All other
shareholders will be sent an online password with the invitation to the
shareholders' meeting, provided they have been entered in the
shareholders' register before the beginning of 19 April 2010. In
order to use the system that allows them to use the password-protected
Internetdialog, shareholders must have been entered in the shareholders'
register before the beginning of 19 April 2010. The
password-protected Internetdialog will be available from 9 April 2010
onwards. The special provisions set out in paragraph c) below apply where
authorization is granted to Company-appointed
proxies.
|
|
b)
|
If
the appointment of a proxy falls within the scope of application of
§ 135 AktG (i.e. if the proxy appointed is a bank or
shareholders' association or other commercial entity or association which
has the status of a bank according to § 135 (8) AktG or
according to § 135 (10) in conjunction with § 125 (5)
AktG or the appointment of the proxy falls within the scope of application
of § 135 AktG on other grounds), text form is not required pursuant
to § 134 (3) sentence 3 AktG and the Articles of
Incorporation do not contain a specific provision governing such case.
Banks, shareholders' associations and other commercial entities and
associations which have the status of banks according to
§ 135 (8) AktG or according to § 135 (10) in
conjunction with § 125 (5) AktG may therefore provide forms with
which they can be appointed proxy and such forms need only comply with the
statutory provisions that apply to the granting of such authorization, in
particular those contained in § 135 AktG. Reference is hereby made to
the special procedure pursuant to § 135 (1) sentence 5
AktG.
|
This
translation is for courtesy purposes only. The German original
prevails.
|
c)
|
The
information contained in paragraph a) above also applies if
authorization is granted to a Company-appointed proxy, subject to the
following special provisions: If authorization is granted to a
Company-appointed proxy, such proxy will only exercise the corresponding
voting right if express instructions have been issued. For administrative
reasons, only those proxy authorizations and instructions can be taken
into account that were granted or issued using the forms provided for this
purpose by the Company (including electronic forms, see above). In this
context, instructions can only be issued in respect of resolution
proposals by the Company's administrative bodies which have been published
by the Company prior to the shareholders' meeting, but including any
proposal on the appropriation of net income that is adjusted in the
shareholders' meeting in line with the announcement, and in respect of
resolution proposals by shareholders that were published by the Company
prior to the shareholders' meeting on the basis of a minority request
pursuant to § 122 (2) AktG, as a counter-motion pursuant to
§ 126 (1) AktG or as a nomination pursuant to § 127 AktG.
Instructions issued to the Company-appointed proxies may be changed at any
time up to and including the day of the shareholders' meeting, right up to
shortly before the votes are cast.
|
|
d)
|
If
authorization is granted by way of a declaration made to the Company, no
additional evidence of authorization is required. If, however,
authorization is granted by way of declaration to the proxy, the Company
may demand to see evidence of the authorization, unless otherwise provided
for under § 135 AktG (this applies to the case described in paragraph
b) above). It is possible to send the Company evidence of authorization
prior to the shareholders' meeting. In accordance with § 134 (3)
sentence 4 AktG, the following means of electronic communication are
available (to the shareholder or the proxy) for sending the evidence of
authorization: The evidence of appointment of a proxy may be sent to the
Company via the password-protected Internetdialog using the system
provided for this purpose (subject to the conditions and restrictions set
out in paragraph a) above) on the above website
(http://www.hv-telekom.com) or via e-mail to:
hauptversammlung.bonn@telekom.de. Documents can be sent via the
Internetdialog in the following formats: Word, .pdf, .jpg, .txt and .tif,
and we will guarantee that Word, .pdf, .jpg, .txt and .tif files sent as
e-mail attachments (with the possibility of existing e-mails being
forwarded) will be taken into account. The Company is only able to draw
the link between evidence of proxy authorization that is sent by e-mail
and a specific registration application if the document evidencing such
authorization or the corresponding e-mail states either the name, date of
birth and address of the relevant shareholder or the corresponding
shareholder number. The above paragraph does not affect the
fact that declarations relating to proxy authorizations (granting,
revocation), if made to the Company, and any evidence to be provided to
the Company may in particular be transmitted to the postal address or fax
number given above.
|
|
e)
|
If
the shareholder appoints more than one proxy, the Company is entitled
under § 134 (3) sentence 2 AktG to refuse one or more of
them.
|
This
translation is for courtesy purposes only. The German original
prevails.
Information on
shareholder rights pursuant to § 122 (2), § 126 (1),
§ 127
and § 131 (1)
AktG
Requests
for additional agenda items pursuant to § 122 (2) AktG
Under
§ 122 (2) AktG, shareholders collectively holding at least one
twentieth of the share capital or at least EUR 500,000 in total (the latter
corresponds to 195,313 shares) may request that additional items be added to the
agenda and made public. Each new item must be accompanied by a corresponding
statement of grounds or a resolution proposal. Such requests must be made in
writing (§ 126 BGB) to the Company's Management Board and must have been
received by the Company by midnight (CEST) on Friday, 2 April 2010. They
should be sent to the following address: Deutsche Telekom AG, Vorstand, Postfach
19 29, 53009 Bonn, Germany. § 142 (2) sentence 2 AktG, which
stipulates that the applicants must provide evidence of having held the shares
for at least three months prior to the date of the shareholders' meeting and of
continuing to hold the shares up to the date on which a decision relating to the
application is taken, applies mutatis mutandis, i.e. this
provision will apply subject to the corresponding adjustments.
Any
additions to the agenda which require publication and were not published with
the notice of convocation will be published in the electronic version of the
German Federal Gazette (elektronischer
Bundesanzeiger) as soon as they have been received by the Company and
will be forwarded to media of whom it can be assumed that they will publish the
information across the entire European Union. Any requests for additional items
to be added to the agenda which are received by the Company once the
shareholders' meeting has been convened will also be made available at the
following address and communicated to the shareholders as soon as they have been
received by the Company:
http://www.telekom.com/hauptversammlung
Counter-motions
and nominations pursuant to § 126 (1) and § 127 AktG
At the
shareholders' meeting, shareholders may make applications and, as necessary,
nominations relating to particular agenda items and the rules of procedure
without any notice, publication or other special action being required prior to
the shareholders' meeting.
Counter-motions
within the meaning of § 126 AktG and nominations within the meaning of
§ 127 AktG, together with the shareholder's name, the corresponding grounds
(which are not required in the case of nominations) and any response by the
Company's administrative bodies, will be published at the following
address:
http://www.telekom.com/gegenantraege
provided
they are received by the Company by
Sunday,
18 April 2010, midnight (CEST) at the latest,
and are
addressed to:
Gegenanträge
zur Hauptversammlung DTAG
Postfach
19 29
53009
Bonn
Germany
or sent
by fax to +49-228-181-88259
or by
e-mail to: gegenantraege.bonn@telekom.de
and all
other conditions leading to the Company being obliged to publish such
information under § 126 and § 127 AktG have been met.
Shareholders'
right to information pursuant to § 131 (1) AktG
Under
§ 131 (1) AktG, any shareholder who makes a corresponding oral request
at the shareholders' meeting must be given information by the Management Board
relating to the Company's affairs, including its legal and business relations to
an affiliate, the financial position of the Group and any other companies
included in the consolidated financial statements, provided such information is
necessary in order to make an informed judgement in respect of an agenda item
and the Management Board does not have the right to refuse such information.
Moreover, under § 293g (3) AktG, any shareholder who makes a
corresponding oral request at the shareholders' meeting must, in respect of
agenda items 11 and 12, be given information by the Management Board relating to
all affairs of Erste DFMG Deutsche Funkturm Vermögens-GmbH and T-Mobile Global
Holding Nr. 2 GmbH that are material in the context of concluding the
agreement(s).
Further
information
Further
information on the shareholders' rights pursuant to § 122 (2),
§ 126 (1), § 127 and § 131 (1) AktG, in particular
information relating to additional requirements above and beyond compliance with
the relevant deadlines, is available at the following address:
http://www.telekom.com/hauptversammlung
This
translation is for courtesy purposes only. The German original
prevails.
Further
information and advice relating to the shareholders'
meeting
Advice
for bearers of ADSs and certain shareholders
Bearers
of American Depositary Shares (ADS) who intend to attend the shareholders'
meeting may contact Deutsche Bank Trust Company Americas, New York, USA, for
more information. If you hold your shares in Japan via the Japan Securities
Depository Center and intend to attend the shareholders' meeting, please contact
The Sumitomo Trust & Banking Co. Ltd., Tokyo, Japan.
Documents
relating to the shareholders' meeting, website with information pursuant to
§ 124a AktG
The
content of the notice of convocation, together with an explanation of why no
resolution is to be passed in respect of agenda item 1, the documents to be
made available to the shareholders' meeting, the total number of shares and
voting rights existing at the time the convocation notice was issued, a form for
granting proxy and for issuing instructions, as necessary, and any applications
for additional agenda items within the meaning of § 122 (2) AktG are
available on the Internet at:
http://www.telekom.com/hauptversammlung
On
23 March 2010, the notice of convocation, together with the full agenda and
the resolution proposals of the Management Board and the Supervisory Board, was
published in the electronic version of the German Federal Gazette and also
forwarded for publication to media which can be expected to publish the
information across the entire European Union.
No
public broadcast of the shareholders' meeting
No audio
or video broadcast of the shareholders' meeting will be made.
Total
number of shares and voting rights
The total
number of shares issued, each of which carries one voting right, existing at the
time of the notice of convocation is 4,361,319,993 (calculated in accordance
with § 30b (1) sentence 1 no. 1 2nd option of the German
Securities Trading Act (Wertpapierhandelsgesetz).
This total includes the 1,881,508 treasury shares held at the time the notice of
convocation was issued, which do not however attribute any rights to the Company
in accordance with § 71b AktG).
Bonn,
March 2010
Deutsche
Telekom AG
Board
of Management
Deutsche
Telekom AG
Supervisory
Board: Prof. Dr. Ulrich Lehner (Chairman)
Board of
Management: René Obermann (Chairman),
Dr.
Manfred Balz, Reinhard Clemens, Niek Jan van Damme,
Timotheus
Höttges, Guido Kerkhoff, Thomas Sattelberger
Commercial
register: Local court Bonn HRB 6794, Registered office: Bonn
VAT
identification no. DE 123475223, WEEE reg. no. DE50478376
This
translation is for courtesy purposes only. The German original
prevails.
SIGNATURE
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
By: /s/ Dr. Guillaume
Maisondieu
Name: Dr. Guillaume
Maisondieu
Title: Chief
Accounting Officer
Date:
March 23, 2010