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II. Nominal Capital and shares

 

Article 3   Nominal Capital; Types of Shares; Corporate Divisions

(1)  The nominal capital of the company amounts to € 72,753,334.00 (in words: seventy two million, seven hundred and fifty three thousand, three hundred thirty four euros).

(2)  The nominal capital is divided into 72,753,334 nopar-value shares, including 70,048,834 class A shares and 2,704,500 class S shares (types of shares).

(3)  Pursuant to the regulations in these Articles of Association, the class S shares entitle the holder to participate in the earnings and assets (including any liquidation surplus) of the S division only; the class A shares entitle the holder to a participation in the earnings and assets (including any liquidation surplus) of the other parts of the company (A division). All economic assets (assets, and equity and liabilities) and business activities of the company and of its subsidiaries and associated companies which cannot be allocated to the S division in accordance with Article 31 must be allocated to the A division.

(4) The Executive Board is authorised until 20 June 2022, with the consent of the Supervisory Board, to increase the company’s share capital by up to € 35,024,417.00 by issuing up to 35,024,417 new registered class A shares (no-par-value shares with a pro rata share of the share capital of € 1.00 each) against contributions in cash and/or in kind (Authorised Capital I). The authorisation may be utilised once or several times for full or partial amounts. Class S shareholders’ subscription rights are excluded. Class A shareholders are in principle entitled to a subscription right to the new class A shares. The subscription rights of class A shareholders are also observed if the new class A shares are acquired by credit institutions or companies within the meaning of Section 186 (5) sentence 1 AktG with the obligation to offer them for subscription to class A shareholders (indirect subscription right). Moreover, the Executive Board is authorised, with the consent of the Supervisory Board, to exclude the subscription right of class A shareholders in the following cases:

(i) for fractional amounts that arise in the course of capital increases against cash contributions or contributions in kind as a result of the subscription ratio;

(ii) in case of capital increases against contributions in kind, especially in relation to company mergers or for the (possibly indirect) acquisition of companies, operations, parts of companies, equity interests or other assets or entitlements to the acquisition of assets, including rights and receivables;

(iii) in case of capital increases against cash contributions, provided that the new class A shares are issued at a price that does not significantly undercut the stock market price of the previously listed class A shares at the time of the issue and provided that the overall proportionate amount attributable to the new class A shares does not exceed 10 % of the share capital attributable to the class A shares at the time the resolution is adopted or, if lower, at the time of the issue of the new class A shares. This limit includes class A shares issued or sold while excluding subscription rights during the term of this authorisation until the date of its utilisation in direct or indirect application of Section 186 (3) sentence 4 AktG. It also includes class A shares issued or to be issued on the basis of debenture bonds with warrant or conversion rights or obligations, where such debenture bonds are issued during the term of this authorisation in accordance with Section 186 (3) sentence 4 AktG with class A shareholders’ subscription rights being excluded. Shares counted towards the limit in accordance with the above sentences due to the exercise of authorisations (i) to issue new class A shares in accordance with Section 203 (1) sentence 1, Section 203 (2) sentence 1, Section 186 (3) sentence 4 AktG and/or (ii) to sell class A treasury shares in accordance with Section 71 (1) no. 8, Section 186 (3) sentence 4 AktG and/or (iii) to issue debenture bonds with warrant and/or conversion rights or warrant or conversion obligations in accordance with Section 221 (4) sentence 2, Section 186 (3) sentence 4 AktG, are no longer included for the future if and to the extent the respective authorisation(s), the exercise of which led to shares being counted towards this limit, is/are renewed by the Annual General Meeting in accordance with statutory provisions;

(iv) if the class A shares are offered for purchase or transferred to employees of the company or to employees or members of the governing bodies of its associated companies within the meaning of Sections 15 et seqq. AktG;

(v) to the extent required to grant the bearers or creditors of then outstanding warrant rights and/or debenture bonds those subscription rights to new class A shares to which they would be entitled after exercising the warrant or conversion right or fulfilling their warrant or conversion obligation.

Under this authorisation, class A shares may only be issued while excluding the subscription rights of class A shareholders if the total of the new class A shares to be issued under this authorisation, combined with (i) any treasury class A shares disposed of while excluding subscription rights prior to the issue of new class A shares without subscription rights under this authorisation and (ii) any class A shares issued or to be issued on the basis of debenture bonds with warrant or conversion rights or obligations that were issued without subscription rights of class A shareholders prior to the issue of new class A shares without subscription rights under this authorisation, does not exceed 20 % of the share capital attributable to the class A shares, neither at the time this resolution takes effect nor – if the value is lower – at the time this authorisation is exercised.

The Executive Board is authorised, with the consent of the Supervisory Board, to specify the further details of the implementation of capital increases from Authorised Capital I, in particular the rights pertaining to the shares and the conditions of the share issue. The Executive Board may also, subject to the approval of the Supervisory Board, determine that the new shares are entitled to share in the profits from the beginning of the financial year for which no resolution by the Annual General Meeting has yet been taken on the appropriation of distributable profit at the time of issue of the new shares. The Supervisory Board is authorised to revise the articles of association accordingly depending on the utilisation of Authorised Capital I or following the expiry of the authorisation.

(5) The Executive Board is authorised until 20 June 2022, with the consent of the Supervisory Board, to increase the company’s share capital by up to € 1,352,250.00 by issuing up to 1,352,250 new registered class S shares (no-par-value shares with a pro rata share of the share capital of € 1.00 each) against contributions in cash and/or in kind (Authorised Capital II). The authorisation may be utilised once or several times for full or partial amounts. Class A shareholders’ subscription rights are excluded. The Executive Board is authorised, with the consent of the Supervisory Board, to also exclude the subscription rights of class S shareholders for fractional amounts that arise as a result of the subscription ratio.

The Executive Board is authorised, with the consent of the Supervisory Board, to specify the further details of the implementation of capital increases from Authorised Capital II, in particular the rights pertaining to the shares and the conditions of the share issue. The Executive Board may also, subject to the approval of the Supervisory Board, determine that the new shares are entitled to share in the profits from the beginning of the financial year for which no resolution by the Annual General Meeting has yet been taken on the appropriation of distributable profit at the time of issue of the new shares. The Supervisory Board is authorised to revise the Articles of Association accordingly depending on the utilisation of Authorised Capital II or following the expiry of the authorisation.

(6)  The company’s share capital is increased contingently by up to € 10,000,000.00 by the issue of up to 10,000,000 new registered class A shares (no-par-value shares with a pro rata share of share capital of € 1.00 each) (Contingent Capital 2016). The contingent capital increase serves to grant class A shares to the holders or creditors of bonds with warrants and/or ­convertible bonds or combinations of these instruments issued under the authorisation resolved by the Annual General Meeting on 16 June 2016 under agenda item 8a b) in the period until 16 June 2019 by the company or by ­companies in which the company holds a direct or indirect majority interest, and that provide for a warrant or conversion right for new registered class A shares in the company or a warrant or conversion obligation, or that provide for a tender right of the issuer. The contingent capital increase is only to be implemented to the extent that

a) the holders and/or creditors of bonds with warrants and/or convertible bonds exercise the warrant or conversion rights granted to them under bonds with warrants and/or convertible bonds issued by the company or by companies in which the company holds a majority stake in the period until 16 June 2019, or

b) the holders or creditors obliged to exercise options or convert bonds with warrants and/or convertible bonds issued by the company or by companies in which the company holds a majority interest in the period until 16 June 2019 meet their warrant or conversion obligations or to the extent class A shares are tendered,

and in each case only to the extent that no other methods of fulfilment, ­including delivery of class A treasury shares or class A shares created in any other way, are used.

The new class A shares are entitled to profits from the beginning of the ­financial year on in which they arise by the exercise of warrant or conversion rights or by the fulfilment of the corresponding obligations or by exercise of tender rights. Notwithstanding the ­foregoing, the Executive Board may, with the approval of the Supervisory Board, determine that the new class A shares are entitled to profits from the beginning of the financial year on for which the Annual General Meeting has not yet adopted a resolution on the appropriation of distributable profit at the time that the ­warrant or conversion rights are exercised, the corresponding obligations have been met or on the date of tender. The Executive Board is authorised, with the approval of the Supervisory Board, to determine the further details for ­implementing the contingent capital increase.


Article 4   Dividend Rights for Holders of A- and S-shares

(1)  Dividend rights for holders of class S shares are determined by the amount of distributable profit for the year attributable to the S division; dividend rights for holders of class A shares are determined by the amount of the remaining distributable profit. Distributable profit for the year is allocated to the two divisions in accordance with the principles laid down in Article 4:

a)  Distributable profit for the A division and S division is calculated by means of separate, individual annual financial statements, which are prepared voluntarily for each of the two divisions (the “individual divisional financial statements”) in accordance with the accounting rules of commercial law at the same time as the annual financial statements for the company. Their purpose is to calculate the dividend rights of the holders of class A and class S shares.

b)  The individual divisional financial statements, which must contain both a balance sheet and an income statement, must be shown as an appendix to the company’s annual financial statements. As such, they are subject to the audit performed on the company’s annual financial statements.

(2)  If a division achieves a net loss in a financial year, and if this loss is not offset by (i) retained earnings from the previous year (Section 158 (1) sentence 1 (1) of the AktG), a withdrawal from the revenue reserves (Section 158 (1) sentence 1 (3) of the AktG) or the capital reserve (Section 158 (1) sentence 1 (2) of the AktG) of this division or by (ii) loss adjustment by shareholders in this division (either on the basis of an existing contractual duty to offset loss or on a voluntary basis), and if as a result of this the distributable net profit of the other division is reduced or completely eroded, any net income achieved by this division in subsequent financial years, for the purpose of calculating the dividend qualification of the two classes of shares, shall be allocated to the other division until such time as the reduction in distributable profit suffered by that division, including the interest to be calculated in accordance with sentence 2, has been offset. In accordance with the duty to offset specified in the above sentence 1, interest must be paid on the amount by which the distributable profit of the other division was reduced, beginning on the day of the General Meeting which decides on the use of the distributable profit for the financial year in which the division generated the net loss, and ending on the day of the General Meeting which decides on the use of the distributable profit for the financial year for which the reduction was offset, retrospectively on an annual basis at a rate of three percentage points above the basic interest rate specified in Section 247 of the German Civil Code (BGB). Should some or all assets of a division be sold (partial liquidation), the proceeds from this partial liquidation must first of all be used to fulfil any compensation duties to the other division in accordance with this Paragraph 2.

(3)  Apportionment, transfer prices and the exchange of liquid funds

a)  Expenses incurred and income earned by the company which cannot be allocated directly to one division alone (e.g. the HR expenses, including expenditure for the Executive Board, Supervisory Board, Group accounting, legal department and controlling), must, solely for the purpose of calculating the dividend rights of the holders of class A and class S shares, be divided up in accordance with the division’s share in the Group’s revenue.

b)  All transfer prices for transactions and the exchange of services between the two divisions in the company must be specified in accordance with the same conditions that apply for third parties and be adjusted regularly in accordance with actual developments.

c)  Interest-bearing liabilities and liquid funds, interest expenses and interest income are allocated to each division separately. If an exchange of liquid funds takes place between the two divisions in the company, interest must be paid on it in line with market value.

(4)  Distribution of the taxes actually paid

a)  In order to apportion the taxes actually paid by the company, each division must create a notional tax balance sheet and calculate the notional tax result attributable to each division.

b)  A notional tax burden is the burden of income taxes which would arise if each of the two divisions was legally independent and hence an autonomous tax subject. The notional tax calculation for the division in question must be as close as possible to the actual tax calculation for the tax declarations to be submitted. If, following the calculation of the notional taxes, items are assessed differently in the actual tax calculation or if other deviations occur in the treatment of individual items, the notional taxes must be adjusted accordingly and reflected in profit and loss for the financial year in which the relevant tax declaration with the deviating actual tax calculation is submitted to the fiscal authorities. Allowing for the tax ascertained using the notional calculation, the tax which actually accrues must be allocated to the divisions in accordance with the actual level of tax attributable to each division.

c)  If the tax result of a division is negative, the negative amount must be treated as a notional loss carryforward for this division until such time as it is used for the purpose of calculating the notional taxes with future positive results from the same division, if and to the extent to which a loss deduction of this type were legally permissible. If a loss carryback which is permissible under tax law occurs, the resulting tax effect must be recorded for the financial year in which the loss carryback is recognized by the fiscal authorities.

d)  If and to the extent to which the actual taxable profit which is accrued by a division of the company or of one of its subsidiaries is reduced due to losses incurred by the other division, the resulting actual tax reduction for the division’s notional statement of accounts must be recorded as a receivable from the division which caused the loss against the other division, which must then record a corresponding liability. This receivable must be recorded in the notional Group divisions in the financial year in which the Group divisional balance sheet for the financial year when the loss incurred is adopted. If the tax rates change in subsequent years, this shall have no effect on the amount of the receivable once it has been recorded. This also covers those cases in which expenses which must be treated as non-tax-deductible for the notional divisional statement of accounts prove to be deductible from the actual tax to be calculated (e.g. because the requirements for deductibility are met only if the two divisions are aggregated), thereby reducing the tax burden on profits attributable to the other division.

e)  If the loss incurred by a division is used by the division as part of the loss carryforward in accordance with item (c) above in order to reduce a division’s own profit when the notional tax statement is being prepared, a claim which may have arisen against the other division due to the loss carryforward must be written off against the other division effective from the end of the financial year in which the Group divisional balance sheets are approved. If the other division has already settled the claim by way of payment or offsetting, the notional loss carryforward to be stated in accordance with (c) must be reduced by an appropriate amount at the time of settlement.

(5)  In the first three months of a financial year, the Executive Board must prepare a report detailing the business transactions, the exchange of services and other activities between the A division and the S division in accordance with Section 312 of German Stock Corporation Act (AktG). This report must list all transactions, exchanged services and other measures (including the steps listed in Paragraph 3 above) effected between the two divisions in the previous financial year. Unless contrary action is required by the Articles of Association and by the fact that the report deals with relations not between the company and affiliates but between the two company divisions, this report must be presented to the company’s auditor and to the Supervisory Board for inspection in accordance with Sections 313 and 314 of the AktG, and be audited and certified by the auditor.

(6)  Changes to the fiscal assessment basis, especially changes due to investigation by the tax authorities, must always be allocated to the division in which the change in question took place. If this is not possible, the changes must be allocated in accordance with the apportionment statement as stipulated in Paragraph 3 above. If the fiscal authorities, in particular during a tax audit, formally change tax assessment bases in a legally binding manner for a preceding financial year, and if this change leads to an increase or decrease in the taxes notionally allocated to one of the two divisions in accordance with Paragraph 4 (b) using the amended assessment basis, the result which is attributable to the division in question shall increase or decrease in the financial year when the fiscal authorities’ changes become final and conclusive by the difference from the taxes notionally allocated to the relevant division for the financial years for which the final and conclusive change to the assessment basis was made.

(7)  The regulations in Paragraphs 1 to 6 above shall, where relevant, also apply to the allocation of a liquidation surplus (if one is generated) to both divisions.
 

Article 5   Registered Shares, Securitization, Share Certificates

(1)  The shares in the company are registered in the name of the shareholders.

(2)  The shareholders shall have no claim to securitization of their shares unless securitization is required under the rules valid on the stock exchange where the shares have been admitted. The company is entitled to issue certificates for individual shares (individual certificates) or groups of shares (collective certificates). The shareholders shall have no claim to the issue of dividend or renewal coupons.

(3)  The form and content of share certificates, dividend and renewal coupons, debenture bonds, and interest and renewal coupons shall be determined by the Executive Board with the approval of the Supervisory Board.
 

Article 6   Redemption of Shares

The Company can compulsorily redeem class A shares and class S shares in accordance with Section 237 (1) of the AktG in return for payment of an appropriate redemption fee (authorized redemption), if and insofar as the shareholders whose shares are to be redeemed give their consent.