Prospectus - Notowania

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>> Condensed Consolidated Financial Statements
Part E) – Information on risks and related risk management policies
The shareholders filed their lawsuits contesting alleged deficiencies of the formalities relating to the convocation and conduct
of the Extraordinary Shareholders’ Meeting of October 25, 2006 and that the sales price for the shares was allegedly
inadequate.
With the judgment of 31 January 2008, the Regional Court (Landesgericht) of Munich declared the resolutions passed at the
Extraordinary Shareholders’ Meeting held on October 25, 2006 to be null and void for formal reasons. The Court expressed
no opinion on the problem of the alleged inadequacy of the purchase price, but expressed the opinion that the BCA entered
into by HVB and UniCredit in June 2005 should have been submitted to the shareholders’ meeting of HVB since it constituted
a “concealed” domination agreement.
HVB filed an appeal against this judgment since it believed that there were no formal deficiencies regarding the Extraordinary
Shareholders' Meeting and that the provisions of the BCA were not actually material with respect to the purchase and sale
agreements submitted to the Extraordinary Shareholders’ Meeting on October 25, 2006, and that the matter concerning
valuation parameters did not affect the purchase and sale agreements submitted for the approval of the shareholders'
meeting. HVB also believes that the BCA is not a “concealed” domination contract due in part to the fact that the BCA
specifically prevents entering into a domination agreement for five years following the purchase offer.
In essence, the HVB shareholders’ resolution could only become null and void when the court’s decision becomes final. In
light of the duration of the appeal phase, which is currently under way, as well as the ability to further challenge the secondlevel
judgment at the German Federal Court of Justice, we estimate that it will take about three to four years for this decision
to become final.
Moreover, it should be noted that in using a legal tool recognized under German law, and pending the aforementioned
proceedings, HVB asked the Annual Shareholders’ Meeting held on July 29 and 30, 2008 to reconfirm the resolutions that
were passed by the extraordinary shareholders’ meeting of October 25, 2006 (so-called Confirmatory Resolutions). Such a
confirmatory resolution would – if it were to become binding – make the alleged deficiencies irrelevant.
The Annual Shareholders’ Meeting approved this resolution, which, however, was in turn challenged by several shareholders
in August 2008. In February 2009, an additional resolution was adopted, confirming the resolutions adopted.
At the hearing on June 25, 2009, the Court intimated its intention to reject the voidance action; the decision is expected on
December 10, 2009
In light of the succession of the Confirmatory Resolutions of July 30, 2008, the appeal proceedings initiated by HVB against
the judgment of January 31, 2008 were stayed until a final judgment is issued in relation to the confirmatory resolutions
passed by the shareholders’ meeting of HVB of July 29 and 30, 2008.
Voidance actions challenging Bayerische Hypo- und Vereinsbank AG’s (HVB’s) squeezeout
resolution (Shareholders' Meeting resolution of June 27, 2007)
The Annual General Meeting of HVB held on June 27, 2007 passed, inter alia, a resolution approving the transfer to UniCredit
of the shares of minority shareholders in exchange for a cash settlement of Euro38.26 per share (a so-called “squeeze-out”).
More than 100 shareholders filed suits challenging this resolution asking the Court to declare it null and void.
In its judgment of August 27, 2008, the Regional Court of Munich rejected the action. Various minority shareholders have
filed an appeal with the High Regional Court.
Munich Higher Regional Court on June 19, 2009 released an “order of consideration” that it intends to reject the appeals
without oral hearing and on August 27, 2009 the Munich Higher Regional Court rejected the appeals.
The resolutions adopted at the Annual General Shareholders' Meeting 2007 – especially the squeeze-out resolution –
therefore are binding (only under certain prerequisites awkwardly sustainable the same resolutions can be challenged at the
Court of Federal Justice).
HVB, which was of the opinion that such lawsuits were clearly unfounded, filed an unblocking motion in December 2007
asking the Court to grant clearance for the transfer resolution to be entered in the Commercial Register, notwithstanding the
pending claims of minority shareholders challenging this resolution.
The Munich Court accepted HVB’s request on the grounds that the procedural deficiencies of the resolution in question
claimed by the claimants were unfounded. The minority shareholders challenged the judgment in the Higher Regional Court,
which, in its judgment of September 3, 2008, rejected the appeal (the so-called Unblocking Motion of second instance). The
judgment is final, and no resort can be made to higher levels of jurisdiction.
Accordingly, on September 15, 2008, the Munich Company Register recorded the squeeze-out, and UniCredit became the
shareholder of the entire share capital of HVB.