Siemens 2012 Annual Report Download - page 135

49 C. Combined Management Report 239 E. Additional Information 135 D. Consolidated Financial Statements
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.. Legislation and provisions of the
articles of association applicable to the
appointment and removal of members
of the Managing Board and governing
amendment to the Articles of Association
The appointment and removal of members of the Managing
Board is subject to the provisions of Sections 84 and 85 of the
German Stock Corporation Act and Section 31 of the German
Codetermination Act (Mitbestimmungsgesetz). According to
these provisions, members of the Managing Board are appoint-
ed by the Supervisory Board for a maximum term of five years.
They may be reappointed or have their term of office extended
for one or more terms of up to a maximum of five years each.
Pursuant to Section 31 para. 2 of the German Codetermination
Act, a majority of at least two thirds of the members of the
Supervisory Board is required to appoint members of the Man-
aging Board. If such majority is not achieved, the Mediation
Committee shall give, within one month after the first round
of voting, a recommendation for the appointments to the Man-
aging Board. The Supervisory Board will then appoint the
members of the Managing Board with the votes of the majority
of its members. If such appointment fails as well, the Chairman
of the Supervisory Board shall have two votes in a new round
of voting.
According to Section 8 para. 1 of the Articles of Association,
the Managing Board is comprised of several members, the
number of which is determined by the Supervisory Board. Pur-
suant to Section 84 of the German Stock Corporation Act and
Section 9 of the Articles of Association, the Supervisory Board
may appoint a President of the Managing Board as well as a
Vice President. If a required member of the Managing Board
has not been appointed, the necessary appointment shall be
made, in urgent cases, by a competent court upon motion by
any party concerned, in accordance with Section 85 of the
German Stock Corporation Act. Pursuant to Section 84 para. 3
of the German Stock Corporation Act, the Supervisory Board
may revoke the appointment of an individual as member of
the Managing Board or as President of the Managing Board for
good cause.
According to Section 179 of the German Stock Corporation Act,
any amendment to the Articles of Association requires a reso-
lution of the Annual Shareholders’ Meeting. The authority to
adopt purely formal amendments to the Articles of Association
was transferred to the Supervisory Board under Section 13 para.
2 of the Articles of Association. In addition, by resolution of
the Annual Shareholders’ Meetings on January 27, 2009 and
January 25, 2011, the Supervisory Board has been authorized
to amend Section 4 of the Articles of Association in accordance
with the utilization of the Authorized Capital 2009 and the
Authorized Capital 2011, and after expiration of the then-appli-
cable authorization period.
Resolutions of the Annual Shareholders’ Meeting require a
simple majority vote, unless a greater majority is required by
law. Pursuant to Section 179 para. 2 of the German Stock
Corporation Act, amendments to the Articles of Association
require a majority of at least three-fourth of the capital stock
represented at the voting round, unless another capital major-
ity is prescribed by the Articles of Association.
.. Powers of the Managing Board
to issue and repurchase shares
The Managing Board is authorized to increase, with the
approval of the Supervisory Board, the capital stock until Jan-
uary 26, 2014 by up to €520.8 million through the issuance of
up to 173.6 million registered shares of no par value against
cash contributions and/or contributions in kind (Authorized
Capital 2009). The Managing Board is authorized to exclude,
with the approval of the Supervisory Board, preemptive rights
of shareholders in the event of capital increases against con-
tributions in kind. In addition, preemptive rights of sharehold-
ers may be excluded in the event of capital increases against
cash contributions, (1) to make use of any fractional amounts,
(2) in order to grant holders of conversion or option rights is-
sued by the Company or any of its subsidiaries, as protection
against the effects of dilution, preemptive rights to subscribe
for new shares, and (3) if the issue price of the new shares is
not significantly lower than their stock market price and the
total of the shares issued in accordance with Section 186 para.
3 sentence 4 of the German Stock Corporation Act (against
cash contributions not significantly below the stock market
price, with shareholders’ subscription rights excluded) to-
gether with other shares issued or disposed of by direct or
mutatis mutandis application of this statutory regulation dur-
ing the effective period of this authorization until the date of
using this authorization does not exceed 10% of the capital
stock at that point in time.
Furthermore, the Managing Board is authorized to increase,
with the approval of the Supervisory Board, the capital stock
until January 24, 2016 by up to €90 million through the issu-
ance of up to 30 million registered shares of no par value
against contributions in cash (Authorized Capital 2011). Pre-
emptive rights of existing shareholders are excluded. The new
shares shall be issued under the condition that they are offered
exclusively to employees of Siemens AG and its subsidiaries.
The new shares may also be issued to a suitable bank that as-
sumes the obligation to use these shares for the sole purpose