WWW.ICGG.BIZ issue 02/2012 INSIGHT corporate governance germany Essential: Information, Analysis and Opinion for Investment Professionals, Advisers and Academics CONTENTS 02 COMPANIES 15 CAMPUS Douglas out of the stock market? High pensions for DAX board members 03 BUHLMANN’S CORNER 17 HARTmuT VENNEN AND MARKUS WEIK 06 ACTIONS CORNER Compliance must be lived 08 AGM DATES 19 CAPITAL NEWS Buying & Selling in January 09 POLITICS GCGC wants independent supervisory board 19 DIRECTORS´ DEALINGS members 20 INSIGHT SHAREHOLDFER ID 11 REINHARD EYRING AND 38 INVESTORS INFORMATION PHILIP CAVAILLÉS Your IR contacts in the Prime Bearer and registered shares in the light of 42 READING SUGGESTIONS the 2012 company-law amendment 42 EVENTS DIARY 14 PEOPLE 43 INDEXES OF COMPANIES Enders becomes EADS CEO AND PERSONS 01 INSIGHT corporate Governance Germany companies Douglas to go private? The Douglas retail group (Douglas perfumeries, be known in mid January. There were so far no Thalia bookstores, Christ jewellers and Hussel binding offers, however, nor is the structure or sweetshops) is according to the will of the foun- financing of any acquisition clarified. The deal ding family Kreke to be rebuilt and streamlined. is still in the concept phase, signalled CEO and The Krekes, who hold about 12.62 percent of the founder’s son Henning Kreke. If it were possible, shares in the trade group, have announced that to- however, to buy Douglas completely through a gether with the allied Oetker family (25.81 percent financial investor, the company, undervalued in of the Douglas shares), they wish to raise their sta- Kreke’s eyes, could sooner or later be taken off ke in the company. There have already been talks the market and then filleted. Kreke already has a with several financial investors - according to Fi- potential adversary here: drugstore entrepreneur nancial Times Deutschland with Apax, BC Part- Erwin Müller, who holds 10.05 per cent of the ners and Permira - about the possible acquisition Douglas shares, is likely not to like the push by the of a substantial interest by investors, possibly in Krekes and Oetker, since he already announced the form of a public takeover offer, Douglas let it some time ago he wanted to build up shares. Sky alienates investors The drama about incorrect subscriber numbers and alienated investors at Sky has entered a new chapter. Shortly after Christmas, under the cloak of lowered public attention, the German pay-TV channel Sky confirmed, piquantly on its Facebook page and not via ad-hoc reporting, that the U.S. film studio Para- mount had terminated its contract with Sky. The deleted Paramount films would be offset by other Holly- wood and smaller studios, assured film programme director Marcus Ammon. However, the attractiveness of the Sky offer could suffer, which could have a negative effect on numbers of subscribers and make the focus on the sports field advance, say observers. Investors were outraged by the Group’s information policy. Some threatened a complaint to the Federal Financial Supervisory Authority (BaFin). ISSUE 02/2012 02 companies BUHLMANN`S CORNER QSC: Questions to shareholders IHR PARTNER Shareholders argue for years over governance issues, until for lack of FÜR PREMIUM- any outcome or appropriate consequence of the votes the legislature KOMMUNIKATION gets active and introduces a set of rules no one really wanted. So it was with the cooling-off period or the compliance declaration, and so it threatens to be with the quota for men or the accountants. Repair work will require refinement, and evasions enhance neither transparency nor the value of clear corporate governance. At Bayer and BASF, yesterday’s CEOs, mo- tivated by their environment, press on to head the Supervisory Board. As their cooling-off period began, no thoughts yet went to the 2012 AGM date. The month- long suspension between the legally de- fined period and the final decision by the shareholders could have been avoided had the shareholders exercised their responsibi- lities in time and not left the power to the legislature. Gentlemen’s (and ladies’) agreements between departing and cooling-off Su- pervisory Board chairmen have always existed. What is new is that candidates for the chairmanship are now exposed to an involuntary election campaign among Supervisory Board colleagues in the period between the Supervisory Board appointment and the vote for chair- man - let’s see what antics that may bring. At the start of his tenure, many a CEO has longed for a cooling-off period - for his predecessor; by its end he was cursing it. Shareholders should have acted here and helped to eliminate the conflict; instead • Starke Sprach- und they let yet another law in. Datenprodukte für jeden Bedarf Sometimes it works even easier, as for instance at EADS, where the • Maßgeschneiderte individuelle government is not a shareholder, but is behaving like one. The whole thing turns bad when there’s a representative holding the shares on Lösungen behalf of third parties. Daimler is similar. Here are the shares with their • Eigenes Breitband-Netz: opportunities and risks, and each shareholder must decide whether Sicher, solide, zukunftsorientiert he wants that or prefers a repurchase transaction with the Federal • Höchste Verpflichtung zu Government. Fortunately, the personnel change just made it, after, Qualität und Service as at IKB and ThyssenKrupp, individual Supervisory Board members seemingly “didn’t know” and asked for further clarification. www.qsc.de Hans-Martin Buhlmann is the founder of proxy-voting agency VIP Vereinigung Institutionelle Privatanleger e.V. (www.vip-cg.com). 03 ISSUE 02/2012 03 INSIGHT corporate Governance Germany companies ThyssenKrupp’s heavy ballast Postbank to transfer profits Even if ThyssenKrupp shareholders were able to Deutsche Postbank and Deutsche Bank take home a dividend again in September last on 10 January began negotiations on a fiscal year, a loss of €1.8 billion does not argue a control and profit-transfer agreement. successful business strategy. In 2010/11 the Ger- Postbank will in future transfer profits to man steel giant had to write off 2.1 billion euros a subsidiary of the Frankfurt bank, DB on its activities in America. Delays, mishaps and Finanz-Holding GmbH. Currently, the mismanagement had driven the cost of two new Deutsche Bank has slightly more than half ten-billion-euro plants in Brazil and the U.S. to of the voting rights, and therefore not ever new heights. Rumors therefore came that enough to prevail with the control agree- ThyssenKrupp might hive off its Brazilian subsidiary. Financial Times ment at the Postbank AGM on 5 June. As Deutschland called the Brazilian Vale group a possible buyer. Insiders of February, Germany’s leading bank will see this option at present rather in the stage of simulation games. Even receive a stake of about another 40 per given that the Brazil problem is not yet solved, and ThyssenKrupp wants cent in the Bonn-based Postbank from to give no earnings forecasts for the current year for either the Steel Deutsche Post. After the Postbank share Americas division or the overall group, the announced restructuring recently rose to its highest level since Sep- of the Group is still slow. Thus in late January it became known that tember 2010, small shareholders are now the Essen firm wants to hive off its stainless-steel subsidiary Inoxum. In hoping that they will be presented with an Finnish competitor Outokumpu it has already found a prospective attractive settlement offer. purchaser. Although the workers’ representatives now fear massive job cuts, selling is the most likely scenario for the subsidiary among the IPO and spin-off options. Siemens cancels Osram IPO for the moment The parent company in KfW’s entry to EADS drags on Munich no longer ex- pects its lighting subsi- The German federal government’s planned entry into the European Ae- diary Osram to make it ronautic Defence and Space Company (EADS) through the KfW ban- to the stock market in king group will take longer than expected. Daimler is still wrestling with the first half of 2012, the State bank over details of the sale of its stake in the European aero- the news agency dpa space group, which should have been completed before the new year. reported, citing com- The Stuttgart carmaker actually wanted to have a Memorandum of Un- pany circles. Actually, derstanding signed by the development bank by the end of 2011, but the world’s second- KfW would not bow to pressure and is first checking tax and accoun- largest lamp company ting aspects. The entry of a new anchor shareholder could under current was supposed to go on the trading floor law trigger a takeover offer for the shares of the other owners, which in autumn already. But when stock prices the Frankfurters want to avoid. Additionally, in the Netherlands, where were in decline, CFO Joe Kaeser had to EADS has its corporate headquarters, takeover law would still have to be admit in November he had missed the adapted this year, as the entry of KfW would mean an amendment to the right timing for an IPO. Although official- EADS shareholder pact. If the deal with Daimler falls through the bank ly the preparations for an IPO continue, wants to buy other investors’ shares. In addition to the 7.5 per cent from some analysts now see a spin-off, with the car company the Reconstruction Loan Corporation (KfW) may want Osram hived off and a distribution of another 7.5 percent, which are held by banks and Länder. The State in- shares to Siemens shareholders, as a more fluence would thus increase, whereas the management of EADS really realistic option. Siemens originally wanted wanted to open up the company to private investors.