After the shareholders’ meetings of Siemens AG and OSRAM Licht AG have approved the Spin-off, the managing board of Siemens AG and the managing board of OSRAM Licht AG must file the Spin-off for registration with the register of companies (Sections 129, 125 sentence 1 in conjunction with Section 16 (1) UmwG).
The filing with the registers of companies of Siemens AG must include statements of financial position of Siemens AG as closing statements of financial position (Section 125
sentence 1 in conjunction with Section 17 (2) UmwG). The closing statements of financial position are the annual financial statements of Siemens AG as of 30 September 2012, 24:00 hours. They were audited by Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, Stuttgart, which was appointed as auditor in accordance with the legal requirements by resolution of the shareholders’ meeting of Siemens AG on 24 January 2012, in connection with the audit of the annual financial statements on which an unqualified audit opinion was issued.
The Spin-off only takes effect upon registration with the register of companies of Siemens AG at the district court of Charlottenburg and the district court of Munich, whereby the later of the two registrations is determinative. The Spin-off must have previously been registered with the register of companies of OSRAM Licht AG at the district court of Munich. Upon the later of the registrations with the register of companies of Siemens AG at the district court of Charlottenburg or the district court of Munich, the Spin-off Assets will pass to OSRAM Licht AG as an entirety by force of law by way of a partial universal succession in accordance with the scope set forth in the Spin-off and Transfer Agreement. The register courts will publish the registration of the Spin-off which they have made pursuant to Section 10 HGB with the register of companies in the electronic information and communications system determined by the respective state justice administration (www.registerbekanntmachungen.de).
Assuming that no complaint is filed, or that no complaint is filed in a timely manner, against the validity of the approving resolution of the shareholders’ meeting of Siemens AG for the Spin-off and Transfer Agreement, the plan is that the registration will take place in April 2013 and that the Spin-off will then become effective. Immediately thereafter, the OSRAM Licht shares are supposed to be listed in the Regulated Market of the Frankfurt Stock Exchange and the Munich Stock Exchange as well as additionally in the sub-segment of the Regulated Market with additional post-admission obligations (Prime Standard) of the Frankfurt Stock Exchange.
However, if a complaint is filed in a timely manner against the validity of the resolution on the Spin-off, it hinders as a general rule the registration of the Spin-off with the register of companies and, thus, the coming into effect of the Spin-off without regard to the prospects for success of the complaint so that a delay would arise. The reason for this is that the managing boards of Siemens AG and OSRAM Licht AG must each declare in the filing pursuant to Section 125 sentence 1 in conjunction with Section 16 (2) sentence 1 UmwG that a complaint against the validity of the resolution on the Spin-off has not been filed or has not been filed in a timely manner or that such a complaint has been dismissed by final judgment or withdrawn (so-called negative declaration), which they could not do in the case of the timely filing of a complaint. In the case of the approving resolution of OSRAM Licht AG, Siemens AG, as the sole shareholder, will already waive
the filing of a complaint in the shareholders’ meeting. In the case of the approving resolution of the shareholders’ meeting of Siemens AG, however, the possibility cannot be precluded that there will be a challenge by one or more shareholders. Despite the lack of a negative declaration, the Spin-off can be registered, anyway, even if complaints against the validity of the resolution on the Spin-off have been filed duly, provided that the court of appeals (Oberlandesgericht, "OLG") having jurisdiction pursuant to Section 125 sentence 1 in conjunction with Section 16 (3) sentence 7 UmwG has determined by an order pursuant to Section 125 sentence 1 in conjunction with Section 16 (3) sentence 1 UmwG that the filing of the complaint does not prevent the registration (so-called clearance order). The order is non-appealable under Section 125 sentence 1 in conjunction with Section 16 (3) sentence 9 UmwG. Pursuant to Section 125 sentence 1 in conjunction with Section 16 (3) sentence 3 UmwG, the order will be issued if (i) the complaint is inadmissible or obviously without merit, or (ii) the plaintiff has not proven within one week after service of the request by means of documents that the plaintiff holds a proportionate amount of at least 1,000 € in the capital stock of the company since the notice calling the meeting was published, or (iii) the immediate coming into effect of the Spin-off appears to have priority because the material harm demonstrated by Siemens for the entities involved in the Spin-off and their shareholders outweighs the harm for the claiming shareholder in the free conviction of the court unless there has been a particularly severe violation of law.
The managing board of Siemens AG is of the opinion that a delayed coming into effect of the Spin-off would be harmful for Siemens AG and OSRAM Licht AG and would be contrary to the interests of the Siemens shareholders because it would delay the realization of the benefits expected by a separate development of the two companies and would cause additional costs.