(according to Sections 289 (4) and 315 (4) of the German Commercial Code (HGB))
1 This section is part of the audited Combined Management Report.
As a publicly traded company whose voting shares are listed in an organized market within the meaning of Section 2 (7) of the German Securities Acquisitions and Takeover Act (WpÜG), ProSiebenSat.1 Media SE is obliged to record the information stipulated in Sections 289 (4) and 315 (4) of the German Commercial Code (HGB) in the management report and Group management report. The disclosures are intended to enable a third party interested in taking over a publicly traded company to inform itself about the company, its structure, and any obstacles to the takeover. In addition to these statutory disclosures, the following section also includes the related explanations in accordance with Section 176 (1) Sentence 1 of the German Stock Corporation Act (AktG) in conjunction with Article 9 (1) lit. c) ii) SE Regulation:
Composition of the Subscribed Capital
As of December 31, 2015, the share capital of ProSiebenSat.1 Media SE amounted to EUR 218,797,200. It is divided into 218,797,200 no-par registered common shares with a pro rata share in the share capital of EUR 1.00 each. All shares entail the same rights and obligations. Each share in ProSiebenSat.1 Media SE grants one vote at the Annual General Meeting and an identical share in profits.
Further information on capital holdings that exceed 10 % of the voting rights can be found in the Notes, Note 40 “Group affiliation and disclosures on voting rights notifications as per Section 21 (1) German Securities Trading Act (WpHG),”.
Restrictions Affecting Voting Rights or the Transfer of Shares
The Executive Board has no information on any restrictions to the exercise of voting rights or the transferability of shares that go beyond the legal requirements of the law governing the capital market and the Interstate Broadcasting Treaty (Rundfunkstaatsvertrag).
Shareholdings that Exceed 10 % of the Voting Rights
On the basis of the voting rights notifications according to Sections 21 and 22 of the German Securities Trading Act (WpHG) received by the Company by December 31, 2015, there are no direct or indirect shareholdings in the Company’s capital that exceed 10 % of the voting rights.
Shares with Special Rights that Confer Controlling Powers
No shares with special rights that confer controlling powers have been issued.
Voting Control if Employees Hold a Capital Share
There is no control over voting rights in the event that employees hold a share in the share capital of ProSiebenSat.1 Media SE and do not exercise their controlling rights directly.
Appointment and Removal of Executive Board Members; Amendments of the Articles of Incorporation
In accordance with Section 7 (1) Sentence 1 of the Company’s articles of incorporation, the Executive Board of ProSiebenSat.1 Media SE comprises several people; the exact number is determined by the Supervisory Board in accordance with Section 7 (1) Sentence 2 of the articles of incorporation. In principle, members of the Executive Board are appointed and removed by the Supervisory Board as the supervisory body in accordance with Article 39 (2) SE Regulation. In accordance with Section 7 (2) Sentence 1 of the articles of incorporation in conjunction with Article 46 SE Regulation, Executive Board members are appointed for a maximum period of five years; reappointments for a maximum of five years are permitted. Executive Board members can be removed by the Supervisory Board prematurely for good cause. The appointment and removal of Executive Board members require a simple majority of the votes cast in the Supervisory Board; in the event of a tie, the vote of the Supervisory Board Chairman shall prevail (Section 12 (1) Sentence 3 of the Company’s articles of incorporation). If the Executive Board does not have the required number of members, in urgent cases the court shall appoint a member upon petition by a party concerned (Section 85 (1) Sentence 1 AktG in conjunction with Article 9 (1) lit. c) ii) SE Regulation).
The Annual General Meeting must decide on changes to the articles of incorporation (Article 59 (1) SE Regulation). In the case of ProSiebenSat.1 Media SE, a resolution of the Annual General Meeting to change the articles of incorporation requires the simple majority of the votes cast if at least half of the share capital entitled to vote is represented at the passing of the resolution (Article 59 (2) SE Regulation, Section 51 Sentence 1 SE Implementation Act), otherwise a majority of two thirds of the votes cast is required (Article 59 (1) SE Regulation), unless the articles of incorporation or the law demand a greater majority. For example, this is the case for changing the purpose of the company (Section 179 (2) Sentence 1 AktG in conjunction with Article 59 (1) and (2) SE Regulation, Section 51 Sentence 2 SE Implementation Act) and creating contingent capital (Section 193 (1) Sentences 1 and 2 AktG in conjunction with Article 57 SE Regulation, Section 51 Sentence 2 SE Implementation Act) or authorized capital (Section 202 (2) Sentences 2 and 3 AktG in conjunction with Article 57 SE Regulation, Section 51 Sentence 2 SE Implementation Act), for which a majority of at least three quarters of the valid votes cast is required. The Supervisory Board is authorized to pass amendments that relate solely to the wording of the articles of incorporation (Section 179 (1) Sentence 2 AktG in conjunction with Article 9 (1) lit. c) ii) SE Regulation, Section 13 of the articles of incorporation).
Executive Board’s Powers to Issue or Repurchase Shares
On the basis of the resolution of the Annual General Meeting of May 21, 2015, the Executive Board is authorized, subject to the consent of the Supervisory Board, to increase the share capital of ProSiebenSat.1 Media SE on or before July 22, 2018, by not more than EUR 109,398,600 by issuing new no-par shares in return for contributions in cash and/or in kind on one or more occasions (Authorized Capital 2013). Subject to the consent of the Supervisory Board, the Executive Board is authorized to determine the further content of the rights attached to the shares and the conditions of the share issue. Shareholders are fundamentally granted the legal preemptive right.
The authorization to issue convertible and/or warrant-linked bonds granted to the Executive Board on the basis of the resolution of the Annual General Meeting on June 4, 2009, expired at the end of June 3, 2014. The contingent capital created to serve the convertible and/or warrant-linked bonds has therefore likewise become invalid.
The resolution of the Annual General Meeting of May 21, 2015, authorizes ProSiebenSat.1 Media SE up to May 20, 2020, to acquire its own shares in an amount of up to 10 % of the share capital at the time the authorization was granted or — if lower — the time the authorization is exercised. The Company can exercise this authorization in full or in part, on one or more occasions, and for every legally permissible purpose. The purchase can — also with the use of derivatives – be made via the stock exchange or by means of a tender offer directed to all shareholders and/or by way of a public solicitation to submit sales offers. Purchased own shares can be sold again or redeemed without an additional Annual General Meeting resolution. On the resale of own shares, the Executive Board is authorized, subject to the consent of the Supervisory Board, to partially or fully exclude the shareholders’ preemptive rights in certain cases described in more detail in the resolution of the Annual General Meeting.
Significant Agreements of the Company Subject to a Change of Control Resulting from a Takeover Bid
ProSiebenSat.1 Media SE concluded the following significant agreements that entail regulations for the event of a change of control, which could result from a takeover bid:
ProSiebenSat.1 Media SE has an unsecured syndicated facilities agreement which, as of December 31, 2015, includes a term loan of EUR 2.100 billion and a revolving credit facility with a facility amount of EUR 600 million. In the event that the control over ProSiebenSat.1 Media SE changes by way of direct or indirect acquisition of more than 50 % of the voting rights in ProSiebenSat.1 Media SE by a third party (change of control), the lenders are entitled to terminate their participation in the facility and to demand repayment of outstanding amounts allocable to them within a certain period after the change of control takes place.
In addition, ProSiebenSat.1 Media SE has outstanding unsecured notes of EUR 600 million. In the event that the control over ProSiebenSat.1 Media SE changes by way of direct or indirect acquisition of more than 50 % of the voting rights in ProSiebenSat.1 Media SE by a third party (change of control) and a negative rating event occurs following such a change of control, the note creditors are entitled to call in their notes and demand repayment.
In addition, some license agreements for films, TV series and other programs important for the Company include regulations that, in the event of a change of control, entitle the provider of the program content to terminate the corresponding license agreement prematurely. Single format license agreements with TV format developers also allow the contractual partner to resign the individual contracts with ProSiebenSat.1 Group in the event of a change of control. In addition, in the event of a change of control one of the major contracts with a cable network operator grants the contract partner the right to terminate all its contracts with ProSiebenSat.1 Group.
Company’s Compensation Agreements with Executive Board Members or Employees for the Event of a Takeover Bid
The employment agreements of all Executive Board members each contain change of control clauses for the event that control over the Company is acquired by one or more third parties in accordance with Sections 29 (2), 30 WpÜG. In this case, the Executive Board members have the right to terminate their employment agreements with three months’ notice and to resign their posts if the change of control results in a substantial curtailment of the position of the Executive Board. On effective exercise of the right to terminate, the respective Executive Board members shall receive a cash severance payment equating to up to three years’ compensation, but no more than the compensation for the remaining term of the Executive Board employment agreement.
There are otherwise no change of control clauses with employees of ProSiebenSat.1 Media SE for the event of a takeover bid.