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III. Constitution of the Company

 

Article 7   Company Bodies

The following are the bodies of the company

  • the Executive Board
  • the Supervisory Board
  • the Annual General Meeting (AGM).
     

THE EXCECUTIVE BOARD

Article 8   Composition

The Executive Board shall consist of two or more persons. The appointment of deputy Executive Board members shall be permissible.
 

Article 9   Management and Representation of the Company

(1)  The members of the Executive Board must manage the company’s business in accordance with the law, the Articles of Association and the code of practice specified by the Supervisory Board for the Executive Board, including the schedule of responsibilities. 

(2)  The company shall be represented either by two members of the Executive Board acting jointly or by one member of the Executive Board acting jointly with a special authorized agent (Prokurist). Deputy members of the Executive Board shall have the same authority to represent as full members. 

(3)  If more than one special authorized agent (Prokurist) has been appointed, two shall be authorized to represent the company jointly.

(4)  The Supervisory Board can exempt all or individual members of the Executive Board and authorized agents (Prokurists) entitled to represent the company jointly with a member of the Executive Board generally or in individual cases from the prohibition of multiple representation pursuant to Section 181, 2nd alternative, BGB. Section 112 of the AktG shall remain unaffected.

 

THE SUPERVISORY BOARD

Article 10   Composition and Term of Office; Substitute Members

(1)  The Supervisory Board shall consist of six members appointed by the shareholders and six members appointed by the employees. The Supervisory Board members selected by the employees shall be selected in accordance with the German Co-Determination Act (MitbestG). 

(2)  No member of the Supervisory Board may be appointed for longer than the period permissible under Section 102 of the AktG. Re-election of members shall be permissible. 

(3)  At the time when the members of the Supervisory Board are appointed, a substitute member can also be appointed for one or more specific members. If this member resigns from his/her office, his/her substitute shall replace him/her and complete the rest of his/her term in office. The substitute members shall become members of the Supervisory Board in a specified order, determined during the election, if and when the Supervisory Board members elected by the shareholders (as whose substitutes they were elected) resign from the Supervisory Board before expiration of their term of office and a successor has not been appointed. One person may be appointed as a substitute member for more than one Supervisory Board member. The election of substitute members for the Supervisory Board members elected by the employees shall be in accordance with the Co-Determination Act; their term of office shall continue for the rest of the term of the departed member. 

(4)  If a member of the Supervisory Board departs prematurely, and if a substitute has not been appointed, a new member may be appointed only for the remainder of the term of office of the departed member. If a substitute member replaces the departed member, his office shall end upon completion of the next General Meeting in which an election is held to replace the departed member or when the office of the departed Supervisory Board member expires, whichever is sooner. If a new election is held before the departed Supervisory Board member’s term of office expires, the original membership of a person who was appointed as substitute for more than one Supervisory Board member and who ascended to the Supervisory Board for the departed member shall be revived; it shall take precedence if more than one substitute member has been appointed. 

(5)  At its first meeting after being elected, the Supervisory Board shall select from its own membership a Supervisory Board chairperson and a vice chairperson with a two-thirds majority of the members. The election shall be valid for the whole office of the elected person, or for some shorter time span determined by the Supervisory Board. If the required majority as specified in the previous sentence 1 is not achieved when electing a Supervisory Board chairperson or vice chairperson, a second election shall be held. In this second ballot, the shareholders’ Supervisory Board members shall elect the Supervisory Board chairperson, and the employees’ Supervisory Board members shall elect the vice chairperson, with a majority of votes cast in both cases. If the chairperson or the vice chairperson departs before his/her term of office expires, the Supervisory Board must immediately organize an election to replace the departed person. 

(6)  Immediately after the Supervisory Board chairperson and vice chairperson have been elected, the Supervisory Board shall form a committee to discharge the duty described in Section 31 (3) (1) of the German Co-Determination Act. This committee shall consist of the Supervisory Board chairperson, the vice chairperson and two further members, one elected by the employees’ Supervisory Board members and one elected by the shareholders’ Supervisory Board members by a majority of votes cast. 

(7)  Every member and every substitute member of the Supervisory Board can resign from office with four weeks’ notice, even in the absence of good cause. To do so, the member must make a written declaration which shall become legally valid upon receipt by the Executive Board (which must inform the Supervisory Board chairperson without delay). This shall be without prejudice to the right to resign from office for good cause without prior notice. 

 

Article 11   Duties; Responsibility

(1)  It is the duty of the Supervisory Board to supervise the management. In particular, it can, at any time, demand a report on the company’s affairs from the Executive Board, consult and examine the company’s books and publications and carry out on-site inspections. It can also appoint individual members, or special experts for particular duties, to perform this work.

(2) It is the duty of the Supervisory Board to specify the number, appointment and dismissal of the full and deputy members of the Executive Board and the conclusion and termination of their employment contracts, and to name one member of the Executive Board as chairperson and appoint another member of the Executive Board as vice chairperson.

(3)  The Supervisory Board shall decide on a code of practice for the Executive Board. In the code of practice, the Supervisory Board shall specify, among other things, the other transactions which may be performed only with its consent. The Supervisory Board can grant prior revocable approval to a specified group of transactions on a general basis or if the individual transaction meets specific conditions. The Executive Board’s schedule of responsibilities shall require the approval of the Supervisory Board and shall form part of the Supervisory Board’s code of practice for the Executive Board.

 (4)  The Supervisory Board shall be authorized to make changes to the Articles of Association which only concern the wording.

(5)  In all other regards, the rights and duties of the Supervisory Board shall be determined in accordance with statutory provisions.
 

Article 12   Rules of Procedure

The Supervisory Board shall adopt rules of procedure.
 

Article 13   Meetings; Convening

(1)  The Supervisory Board shall normally hold one meeting every quarter; it must hold two meetings in every half year. It must also hold meetings if this is required by law or appears necessary in the best interests of the company. In order to hold the Supervisory Board meeting that decides on approval of the annual financial statements, the Supervisory Board’s members must be physically present. 

(2)  The meetings of the Supervisory Board shall be convened in text form (Section 126b of the German Civil Code) with a notice period of fourteen days and while determining the form of the meeting by the Supervisory Board’s chairperson. The day on which the invitation is sent and the day of the ­meeting shall not be included in the calculation of the time limit. In urgent cases, the chairperson may reasonably shorten this period and convene a meeting orally, by telephone or by using any other standard means of ­telecommunication. 

(3)  The items on the agenda must also be included in the invitation. If it is in the best interests of the company, the chairperson can decree that individual items on the agenda are not disclosed in the invitation but at a suitable time before the meeting. If an item on the agenda has not been duly announced in advance, a resolution concerning it may be passed only if no Supervisory Board member objects. In such a case, absent Supervisory Board members must be given an opportunity to object to the resolution within an appropriate time limit to be specified by the chairperson, or to cast their vote in writing, by fax, email or using any other standard means of telecommunication. The resolution shall come into effect only if the absent Supervisory Board members raise no objection within the time limit or if they have agreed to the resolution. 

(4)  Persons who do not belong to the Supervisory Board may take part in meetings of the Supervisory Board and its committees in place of Supervisory Board members if authorized in writing to do so by said Supervisory Board members. These persons can also hand over votes made in writing by the Supervisory Board members.
 

Article 14   Adoption of resolutions

(1)  Resolutions of the Supervisory Board shall normally be adopted in meetings. Supervisory Board members who are participating by means of telephone or video conference shall be deemed to be present. On the instruction of the chairperson of the Supervisory Board, resolutions can also be adopted verbally, by telephone, in writing, by fax, email or using any other standard means of telecommunication (in particular by video conference) outside of meetings if no member objects to this procedure within a reasonable time limit specified by the chairperson. The members shall have no right to object if the resolution is adopted in such a way that participating Supervisory Board members are connected to each other by means of telecommunication so that they can all hear each other (telephone conference) or see and hear each other (video conference) simultaneously and can discuss the resolution.

(2)  The Supervisory Board shall be competent to pass a resolution if at least six of its members take part in the adoption process. The committee constituted in accordance with Article 10 Paragraph 6 shall be competent to pass a resolution only if all members of the committee participate in the adoption process. Furthermore, committees shall be competent to pass a resolution only if at least half of their members participate in the adoption of the resolution; in any event, at least three members must participate in the adoption of the resolution. A member shall be deemed to have taken part in adoption of the resolution even if he/she abstains from voting.

(3)  The resolutions passed by the Supervisory Board shall require a majority of the votes cast unless otherwise agreed in Article 14 Paragraph 5 of these Articles of Association or Sections 27, 31 and 32 of the German Co-Determination Act. This shall also apply for elections. Abstention from voting shall not be regarded as voting. 

(4)  Absent Supervisory Board members can participate in adopting resolutions of the Supervisory Board by having other Supervisory Board members or their deputies submit votes in writing in accordance with Article 13 Paragraph 4. IIn addition, absent Supervisory Board members can cast their vote during the meeting or, if the chairperson of the meeting has given prior approval, at a later date orally, by telephone, in text form (Section 126b of the German Civil Code) or by using other standard means of telecommunication, especially by video conference, within an appropriate time limit specified by the chairperson of the meeting provided that no Supervisory Board member present at the meeting objects. However, no objection can be made if the absent Supervisory Board member and the Supervisory Board members who are present are linked to each other in a telephone or video conference and can discuss the subject matter of the resolution. 

(5)  If a vote in the Supervisory Board ends in a tie, the Supervisory Board’s chairperson shall have two votes the next time a vote is held on the same matter if the renewed vote also ends in a tie. Section 108 (3) of the AktG shall also be applied to the casting of the second vote. The vice chairperson shall not be entitled to a second vote. 

(6)  The chairperson of the Supervisory Board shall be authorized, on behalf of the Supervisory Board, to submit the declarations of intent which are required to adopt the resolutions of the Supervisory Board and to receive declarations of intent for the Supervisory Board.

(7)  Records of the meetings and resolutions of the Supervisory Board must be kept. These records must be signed by the chairperson of the meeting, or, in the case of votes held outside of meetings, by the chairperson of the vote. Copies must be sent to all Supervisory Board members without delay.
 

Article 15   Committees

(1)  The Supervisory Board can form committees comprising at least three of its own members. This shall be without prejudice to Section 27 (3) of the German Co-Determination Act. The duties, authorizations and procedures of the committees shall be determined by the Supervisory Board. Decision-making powers held by the Supervisory Board may be transferred to the committees insofar as this is legally permissible. Reports about the committees’ work must be submitted to the Supervisory Board on a regular basis.

(2)  Supervisory Board committees shall be subject to Articles 12, 13 (2 and 3), 14, (1, 2 sentence 4) and Articles 3, 4, 5, 6 and 7, insofar as this does not conflict with any mandatory statutory provisions.
 

Article 16   Remuneration

The members of the Supervisory Board shall receive remuneration in return for their work. This remuneration shall be specified by resolution at the General Meeting.
 

THE ANNUAL GENERAL MEETING (AGM)

Article 17   Duties; Responsibility

The members of the Supervisory Board shall receive remuneration in return for their work. This remuneration shall be specified by resolution at the Annual General Meeting (AGM).
 

Article 18   Location, Time and Convening of the AGM

(1)  The General Meeting shall take place at the company’s registered office, in another major German city or the seat of a German stock exchange to which the company’s shares have been admitted for trading.

(2)  The General Meeting shall be convened by the Executive Board, or by the Supervisory Board in the cases provided for by law, or by those shareholders who hold the necessary authority. This shall be without prejudice to the statutory right of other bodies and persons to convene the General Meeting. 

(3)  The General Meeting which decides on appropriation of the distributable profit for the year, the discharge of the members of the Executive Board and the Supervisory Board, the appointment of the auditor and, in the cases provided for by law, adoption of the annual financial statements or the approval of the consolidated annual financial statements (Annual General Meeting) must take place within the first eight months of the company’s financial year. Extraordinary General Meetings may be convened as often as appears necessary to serve the best interests of the company. 

(4)  The General Meeting shall be convened at least thirty days prior to the date of the General Meeting unless a shorter notice period is permitted by statute (notice period for convention). The notice period for convention is extended by the number of days allowed for registration as defined in Article 19 (1).
 

Article 19   Requirements for Participation and Exercise of Voting Rights

(1)  Shareholders who have registered with the company in good time prior to the General Meeting and whose registered shares have been entered in the share register on the day of the General Meeting shall be entitled to participate in the General Meeting and exercise their voting rights.
The registration must be received by the company in text form (Section 126b of the German Civil Code) in German or English at the address specified for this purpose in the convening notice at least six days prior to the General Meeting (registration period). The Executive Board is authorised to set a shorter deadline for registration of up to three days before the General Meeting in the convening documents. This applies correspondingly to the Supervisory Board if it convenes the General Meeting. Cancellations or new entries in the share register will not take place on the day of the General Meeting or in the last six days prior to the General Meeting.

(2)   Details about registration and the issuance of any admission tickets shall be published together with the invitation to the General Meeting.

(3)   The Executive Board may provide that shareholders may participate in the Annual General Meeting – without actually being present at the venue and without appointing a proxy – and may exercise all or some of their rights, in whole or in part, via electronic means (online participation). The Executive Board is also authorised to make provisions regarding the scope and procedure for participation and exercising rights in accordance with sentence 1. If online participation is enabled, information about the relevant provisions must be announced together with the notice of convocation for the Annual General Meeting.

(4)   The Executive Board is authorised to arrange for audio or video transmission of the General Meeting in whole or in part. The details shall be published together with the notice of convocation of the General Meeting..

Article 20   Voting Rights

(1)  Each share entitles its holder to one vote at the General Meeting. If the statutory provisions require a special resolution to be adopted by holders of a given class of shares, only the holders of that class of shares shall be entitled to vote.

(2)  Voting rights can be exercised by authorized representatives. The granting, revocation and demonstration to the company of this authorization must be carried out in written form. Proof of authorization can also be transmitted by email or other electronic means to be specified in more detail by the company. The details shall be announced along with the convening of the General Meeting. The above provision shall not apply for the authorization of financial institutions, shareholders’ associations and other persons accorded the same status under the AktG; in this respect, Section 135 of the AktG shall apply.

(3)  The Executive Board is authorized to provide for shareholders to cast their vote in writing or by means of electronic communication without attending the General Meeting (postal vote) and determines the details as necessary. An announcement to this effect is to be made when the meeting is convened.
 

Article 21   Chairing the General Meeting; Participation of Members of the Executive Board and Supervisory Board

(1)  The General Meeting shall be chaired by the chairperson of the Supervisory Board or, in case of his/her being prevented from attending, by a shareholders’ member of the Supervisory Board to be elected by a simple majority of the Supervisory Board’s members.

(2)  The chairperson shall lead the negotiations and specify the order in which the items on the agenda are dealt with, as well as the form of voting.

(3)  The chairperson can specify the order of speeches and can restrict the shareholders’ questioning and answering rights to an appropriate time level. In particular, he/she shall be authorized to stipulate, at the start of or during the General Meeting, an appropriate time framework for the General Meeting as a whole and the discussion of individual agenda items, or the individual questions or statements.

(4)  The members of the Executive Board and Supervisory Board should attend the General Meeting in person. Members of the Supervisory Board who are prevented from personally taking part for good cause can also participate by means of video and sound transmission.

Article 22   Adoption of Resolutions

(1)  The resolutions at the General Meeting shall be adopted with a simple majority of votes cast and, if a majority of the capital is required in addition to the majority of votes, with a simple majority of the nominal capital represented when the resolution is adopted, unless otherwise stipulated by law or the Articles of Association. The preceding Sentence 1 shall apply analogously for special resolutions.

(2)  The chairperson of the meeting shall determine the form and other details of the voting.
 

Article 23   Minutes of the Annual General Meeting

Notarized minutes of the negotiation in the Annual General Meeting must be taken and signed by the notary.