Clere Aktiengesellschaft. Bad Oeynhausen. ISIN: DE000A2AA402 German Securities ID No. (WKN): A2AA40

Transcription

1 Clere Aktiengesellschaft Bad Oeynhausen ISIN: DE000A2AA402 German Securities ID No. (WKN): A2AA40 Invitation to the Ordinary Annual General Meeting for the fiscal year from July 1, 2015 to June 30, 2016 We hereby invite the shareholders of our Company to our Ordinary Annual General Meeting for the fiscal year from July 1, 2015 to June 30, 2016, which will be held at Cafe Moskau, Karl-Marx-Allee 34, Berlin on Wednesday, November 9, 2016, at 10:00 a.m. CET. Agenda 1. Presentation of the adopted annual financial statements, the approved consolidated financial statements and the management reports for the Company and the Group for the fiscal year from July 1, 2015 to June 30, 2016, the report of the Supervisory Board, the Management Board s proposal concerning the appropriation of net retained earnings and the Management Board s explanatory report on information pursuant to Section 289 (4), and Section 315 (4) German Commercial Code (HGB) for the fiscal year from July 1, 2015 to June 30, 2016 In accordance with statutory law, a resolution on this agenda item is not provided for since the Supervisory Board already approved the annual financial statements and the consolidated financial statements, and the annual financial 1/37

2 statements have thus been adopted. The shareholders will vote on the Management Board's proposal concerning the appropriation of the net retained earnings under agenda item 2. Regarding the remaining documents specified under this agenda item, the law generally stipulates only that the information be made accessible to the shareholders for inspection and does not require the passing of a resolution by the Annual General Meeting. 2. Resolution on the appropriation of net retained earnings The Management Board and the Supervisory Board propose that the net retained earnings totalling EUR 61,240, for the fiscal year from July 1, 2015 to June 30, 2016, i.e. EUR 61,240, be carried forward in full to new account, in other words, to carry forward the amount of EUR 61,240, to new account. 3. Formal approval of the acts of the Management Board for the fiscal year from July 1, 2015 to June 30, Regarding the decision to approve the actions of the current Management Board members Mr. Oliver Oechsle and Mr. Thomas Krupke, the Management Board and the Supervisory Board propose that the following resolutions be passed: a) The actions of Management Board member Mr. Oliver Oechsle shall be approved for his term from July 1, 2015 to June 30, b) The actions of the Management Board member Mr. Thomas Krupke shall be approved for his term from June 16, 2016 to June 30, It is intended to vote on the approval of each Management Board member's actions individually. 4. Formal approval of the actions of the Supervisory Board for the fiscal year from July 1, 2015 to June 30, Regarding the decision to approve the actions of the members of the Supervisory Board who held office during the fiscal year from July 1, 2015 to June 30, 2016, the Management Board and the Supervisory Board propose that the following resolutions be passed: a) The actions of Supervisory Board member Dr. Thomas van Aubel shall be approved for his term from July 1, 2015 to June 30, /37

3 b) The actions of Supervisory Board member Ms. Frauke Vogler shall be approved for her term from July 1, 2015 to June 30, c) The actions of Supervisory Board member Mr. Klaus Rueth shall be approved for his term from July 1, 2015 to June 30, It is intended to vote on the approval of each Supervisory Board member's actions individually. 5. Resolution on the election of auditors for the annual financial statements and consolidated financial statements for the short fiscal year 2016 and the fiscal year 2016/2017, respectively The Supervisory Board proposes that the following resolution be passed: Deloitte & Touche GmbH Wirtschaftsprüfungsgesellschaft, Frankfurt am Main, are appointed auditors of the annual financial statements and the consolidated financial statements for the short fiscal year from July 1, 2016 to December 31, 2016, or alternatively, in the event that the resolution pursuant to agenda item 7 is not adopted or does not become effective by entry in the relevant commercial register in good time, for the fiscal year from July 1, 2016 to June 30, Resolution on the relocation of headquarters and the amendment of Section 1 (Company, Registered Office and Term) para 2 of the Articles of Association The Management Board and the Supervisory Board propose to resolve the following relocation of its headquarters and the relevant amendment to the Articles of Association: The Company's headquarters are relocated from Bad Oeynhausen to Berlin. Section 1 (Company, Registered Office and Term) para 2 of the Articles of Association shall be amended as follows: The Company has its registered office in Berlin. 3/37

4 7. Resolution on changing the fiscal year and on amending Section 19 (Fiscal Year and Accounting) para 1 of the Articles of Association The Management Board and the Supervisory Board propose that the following resolution be passed: The Company's fiscal year is changed. In the future, the fiscal year will be the calendar year. If this amendment to the Articles of Association (change in the fiscal year) is registered by December 31, 2016, the period from July 1, 2016 to December 31, 2016 will form a short fiscal year. Otherwise the period from July 1, 2017 to December 31, 2017 will form a short fiscal year." Section 19 (Fiscal Year and Accounting) para 1 of the Articles of Association shall be amended as follows: The Fiscal Year corresponds to the calendar year. If this amendment to the Articles of Association (change in the fiscal year) is registered by December 31, 2016, the period from July 1, 2016 to December 31, 2016 will form a short fiscal year. Otherwise the period from July 1, 2017 to December 31, 2017 will form a short fiscal year." 8. Resolution on the change in the object of the Company and the amendment to Section 2 (Nature and Purpose of the Company) para 1 of the Articles of Association The purpose of the Company as laid down in the Articles of Association shall be amended to include the passage "The investment in and the management of projects and facilities as well as providing services in the area of energy production on the basis of renewable energy and environmental technology" to reflect the operating activities of Clere Aktiengesellschaft and the entire Group in a better fashion. Therefore, the Management Board and the Supervisory Board propose to resolve the following amendment to the Articles of Association: Section 2 (Nature and Purpose of the Company) para 1 of the Articles of Association shall be amended as follows: 4/37

5 1) The nature and purpose of the Company shall be: a) to invest in and operate projects and facilities, as well as to provide services in the area of renewable energy and environmental technology; b) to manage its own assets; c) to acquire, hold, manage, and sell interests in companies and enterprises at home and abroad in its own name and for its own account; d) to acquire, hold, manage, and sell immovable property; and e) to invest capital in any other assets in its own name and for its own account. Furthermore, the Company is entitled to undertake any transactions and measures that are conducive to and serve the purpose of the Company. The Company does not transact any business within the meaning of the German Banking Act (Kreditwesengesetz), Section 34f of the German Trade, Commerce and Industry Regulation Act (Gewerbeordnung), the German Investment Companies Act (Gesetz über Kapitalanlagegesellschaften), the German Safe Custody of Securities Act (Gesetz über die Verwaltung und Anschaffung von Wertpapieren (Depotgesetz)), or within the meaning of any comparable supervisory rules." 9. Resolution on the cancellation of Authorized Capital 2012 and on the creation of new authorized capital with authorization for the exclusion of subscription right and corresponding amendment to the Articles of Association In accordance with 5 of the Company's Articles of Association, the Management Board shall be authorized to increase the Company's share capital with the consent of the Supervisory Board, until May 10, 2017, once or several times by a total of up to EUR 2,944, through the issue of up to 2,944,531 new no-par value registered shares against cash and/or non-cash contributions (Authorized Capital 2012). The Authorized Capital 2012 is to be revoked and replaced by new authorized capital so that the Management Board will in the 5/37

6 future also be able to utilize authorized capital for the purposes of strengthening the Company s equity. The Management Board and the Supervisory Board propose that the following resolution be passed: a) The existing authorization granted to the Management Board to increase the share capital pursuant to Section 5 (Authorized Capital) of the Company's Articles of Association shall be revoked as soon as the Authorized Capital 2016 becomes effective. b) The Management Board shall be authorized, subject to the approval of the Supervisory Board, to increase the Company's share capital once, or several times, before November 8, 2020 by up to a total of EUR 2,944, by issuing up to 2,944,531 new no-par value registered shares in exchange for cash and/or non-cash contributions (Authorized Capital 2016). In the event of capital increases against contributions in cash, new shares must generally be offered to the shareholders for subscription; they can also be assumed by credit institutions or enterprises within the meaning of Section 186 (5) sentence 1 of the German Stock Corporation Act (AktG) with the obligation that they must be offered to the shareholders for purchase. However, the Management Board shall be authorized to exclude shareholders' statutory subscription rights in the following cases with the Supervisory Board s consent: (i) (ii) (iii) to the extent to which this is necessary to eliminate fractional amounts; to acquire companies, parts of companies or holdings in other companies or other assets, including receivables, in return for the issue of shares; insofar as this is necessary to grant holders of conversion or option rights or obligations, issued by the Company or by a company in which the Company holds a direct or indirect majority interest, a right to subscribe to new shares to the extent that they would be entitled to if they exercised their options or conversion rights or after fulfilling their corresponding obligations; 6/37

7 (iv) to the extent to which the new shares for which subscription rights are excluded do not, either at the time of the authorization taking effect or at the time of it being exercised, exceed a total of 10% of the Company s share capital and the issue price of the new shares is not significantly lower than the Company's shares of the same class with the same rights within the meaning of Section 203 (1) and (2), Section 186 (3) sentence 4 AktG. The limit of 10% of the share capital shall additionally include the prorated amount of the share capital that is attributable to shares that were issued during the term of this authorization pursuant to Section 71 (1) (8) sentence (5) and Section 186 (3) sentence 4 AktG under exclusion of the shareholders' subscription rights. The limit of 10% of the share capital shall furthermore include the prorated amount of the share capital that is attributable to shares or to conversion or option rights or conversion obligations that were issued during the term of this authorization as a result of other authorizations in direct or mutatis mutandis application of Section 186 (3) sentence 4 AktG under exclusion of the shareholders' subscription rights. The authorization to exclude shareholders' subscription rights is limited to the extent that the prorated amount of the share capital that is attributable to the new shares may, neither at the time of the authorization taking effect nor at the time of it being exercised, exceed a total of 20% of the share capital, taking into consideration all further authorizations to exclude subscription rights. In accordance with Section 203 (2) sentence 2, and Section 186 (4) sentence 2 AktG, the Management Board has submitted a written report on the reasons for the exclusion of subscription rights. The content of the report is disclosed following the agenda items in this invitation to the Ordinary Annual General Meeting. The Management Board shall furthermore decide upon the issue of the new shares, the content of the share rights, and the terms and conditions of the share issue subject to the approval of the Supervisory Board. The Supervisory Board is authorized to amend the Articles of Association to reflect the amount of the capital increase from authorized capital. 7/37

8 c) Section 5 of the Articles of Association is amended as follows: "The Management Board shall be authorized, subject to the approval of the Supervisory Board, to increase the Company's share capital once, or several times, before November 8, 2020 by up to a total of EUR 2,944, by issuing up to 2,944,531new no-par value registered shares in exchange for cash and/or non-cash contributions (Authorized Capital 2016). New shares must generally be offered to the Company's shareholders for subscription; however, they may also be purchased by one or several banks or by one or several equivalent institutes subject to the obligation that they offer the shares for subscription to the shareholders. However, the Management Board shall be authorized to exclude shareholders' statutory subscription rights in the following cases with the Supervisory Board s consent: a) to the extent to which this is necessary to eliminate fractional amounts; b) to acquire companies, parts of companies or holdings in other companies or other assets, including receivables, in return for the issue of shares; c) insofar as this is necessary to grant holders of conversion or option rights or conversion obligations, issued by the Company or by a company in which the Company holds a direct or indirect majority interest, a right to subscribe to new shares to the extent that they would be entitled to if they exercised their options or conversion rights or after fulfilling their corresponding obligations; d) to the extent to which the new shares for which subscription rights are excluded do not, either at the time of the authorization taking effect or at the time of it being exercised, exceed a total of 10% of the Company s share capital and the issue price of the new shares is not significantly lower than the Company's shares of the same class with the same rights within the meaning of Section 203 (1) and (2), Section 186 (3) sentence 4 of the German Stock Corporation Act (AktG). The limit of 10% of the share capital shall additionally include the prorated amount of the share capital that is attributable 8/37

9 to shares that were issued during the term of this authorization pursuant to Section 71 (1) (8) sentence (5) and Section 186 (3) sentence 4 AktG under exclusion of the shareholders' subscription rights. The limit of 10% of the share capital shall furthermore include the prorated amount of the share capital that is attributable to shares or to conversion or option rights or conversion obligations that were issued during the term of this authorization as a result of other authorizations in direct or mutatis mutandis application of Section 186 (3) sentence 4 AktG under exclusion of the shareholders' subscription rights. The authorization to exclude shareholders' subscription rights is limited to the extent that the prorated amount of the share capital that is attributable to the new shares may, neither upon entry into effect nor upon exercising of the authorization, exceed a total of 20% of the share capital, taking into consideration all further authorizations to exclude subscription rights. The Management Board shall furthermore decide upon the issue of the new shares, the content of the share rights, and the terms and conditions of the share issue subject to the approval of the Supervisory Board. 10. Resolution on revoking the authorization to issue convertible bonds and/or bonds with warrants, profit participation certificates and/or profit participation bonds (or combinations of any such instruments) dated May 11, 2012, and on cancelling the existing conditional capital, as amended in each case by the resolution passed by the Annual General Meeting on January 29, 2016, and on the authorization to issue convertible bonds and/or bonds with warrants, profit participation certificates and/or profit participation bonds (or combinations of any such instruments), and the creation of new conditional capital and the corresponding amendment of the Articles of Association The existing authorization to issue convertible bonds and/or bonds with warrants, profit participation certificates and/or profit participation bonds (or combinations of any such instruments), and to draw on conditional capital will expire on May 10, 2017 and shall be renewed. Therefore, the Management Board and the Supervisory Board propose that the following resolution be passed: 9/37

10 a) The resolution adopted by the Annual General Meeting on May 11, 2012 under agenda item 6, to authorize the Management Board, with the consent of the Supervisory Board, to issue convertible bonds, bonds with warrants, profit participation certificates and/or profit participation bonds (or combinations of any such instruments) (collectively referred to as "bonds" hereinafter) in the overall nominal amount of up to EUR 100,000, until May 10, 2017, shall be revoked once the authorization resolution pursuant to lit. b) of this agenda item and the Conditional Capital 2016 pursuant to lit. c) of this agenda item takes effect, insofar as no shares have been issued on the basis of this resolution. b) Authorization to issue bonds and to exclude subscription rights (i) Authorization, nominal amount, number of shares, currency The Management Board shall be authorized, with the consent of the Supervisory Board, to issue convertible bonds and/or bonds with warrants, profit participation rights and/or profit participation bonds (or combinations of these instruments) (collectively referred to as "bonds" hereinafter) with a total nominal value of up to EUR 100,000, with or without a maturity limit on one or several occasions up to November 8, 2020, and to grant the holders of the bonds conversion rights or warrants on no-par value registered shares of the Company with a pro-rata amount of the share capital totalling up to EUR 1,766, in accordance with the details of the terms of the bonds on which the corresponding conversion or option obligations are based. The bonds can carry a fixed or variable rate of interest. Furthermore the interest rate may, similarly to a profit participation bond, depend entirely or partially on the amount of the Company's dividend. The bonds may be issued in euro or in the official currency of an OECD member country, as long as the corresponding euro equivalent is not exceeded. They may also be issued by companies in which the Company, directly or indirectly, holds a majority interest. In this case the Management Board shall be authorized with the consent of the Supervisory Board to assume the guarantee for the bonds and grant conversion or option rights or, as the case may be, establish conversion 10/37

11 or option obligations for registered no-par value shares of the Company for the holders of the bonds. The individual bond issues may be divided into pari-passu tranches, each bearing identical rights. Bonds may also be issued against non-cash payment. (ii) Conversion and option right or, as the case may be, obligation In the case of issues of bonds with warrants, one or more warrants will be attached to each partial bond, which grant the holders the right, under the terms defined in the warrant bond terms and conditions, to subscribe to no-par value registered shares of the Company. The terms and conditions of options may provide for the option price to also be partially or fully paid through the assignment of partial bonds insofar as these are euro-denominated. The subscription ratio is calculated by dividing the nominal amount of a partial bond by the option price established for one no-par value registered share of the Company. The term of the option right must not exceed the term of the warrant bond. In the event of convertible bonds being issued, bearers receive the right to exchange their partial bonds for no-par value registered shares in the Company in accordance with the detailed terms and conditions pertaining to the convertible bonds. The share exchange ratio shall be derived by dividing the nominal value of a partial bond by the fixed conversion price of one no-par value registered share of the Company. The rate at which bonds are exchanged for shares may also be the result of dividing the issue price of one partial bond by the defined conversion price for one no-par value registered share of the Company. The terms of the bonds may also establish an option or a conversion obligation at the end of the term or at an earlier point in time. The terms of the bonds can provide for the right of the Company upon final maturity of the bonds with conversion rights or warrants to grant shares of the Company to the holders of the bonds in whole or in part in lieu of the cash settlement ("right to delivery of shares"). Furthermore, the terms and conditions can provide for the Company not to grant no-par value registered shares in the Company to the 11/37

12 beneficiaries or liable parties of conversion or option rights but instead to pay the equivalent cash value. To the extent exercising conversion or option rights or fulfilling the warrant or conversion obligations results in fractions of shares, these will generally be settled in cash. The terms and conditions of the bonds may, however, provide for excluding the settlement of such fractional amounts of shares. The terms and conditions of the bonds may also provide for adding up or combining fractions of shares, if applicable with an additional cash payment, so that full shares can be acquired. The pro-rata amount of the share capital represented by the no-par value registered shares of the Company that are issued upon exercising the conversion or option right or upon fulfilling the conversion or option obligation must not exceed the face value of the partial bond. The above shall apply, mutatis mutandis, if warrants are attached to a profit participation right or a profit participation bond or if conversion rights and/or warrants or the conversion and/or warrant obligations are based on a profit participation certificate or a profit participation bond. (iii) Conversion or option price The conversion or option price to be determined in each case for a nopar value share of the Company must be at least 80% of the weighted average closing price of the Company's shares in Xetra trading (or a successor system to Xetra that is comparable in terms of functionality) on the Frankfurt Stock Exchange, Frankfurt/Main, even if the conversion and/or subscription ratio is variable, - during the ten trading days prior to the decision of the Management Board to issue the bonds, or, - in the event that a subscription right to the bonds is granted, during the subscription period, except for the last five calendar days of the subscription period. If option or conversion obligations or the right to delivery of shares apply, the option price or the conversion price, respectively, may, in accordance with the more detailed provisions of the terms and 12/37

13 conditions of the bonds, either at least correspond to the aforementioned minimum price or to the volume-weighted average price of the Company share, as such price is quoted in the Xetra trading system (or a successor system to Xetra that is comparable in terms of functionality) on the Frankfurt Stock Exchange, Frankfurt/Main, during a reference period of 15 stock exchange days prior to the day of maturity or the other determined point in time, even if such average price is below the aforementioned minimum price (80%). The option or conversion price, respectively, can be adjusted during the option or conversion period irrespective of the lowest issue amount in accordance with Section 9 (1) AktG in each of the following cases: - increases in the share capital through conversion of capital reserves or retained earnings; - share split or consolidation of shares; - capital increases while granting subscription rights; - issuing further convertible and/or warrant bonds, or granting or guaranteeing other conversion rights or, as the case may be, conversion or option obligations; - capital reductions insofar as not solely in the form of a reduction of the proportionate amount of the subscribed capital allocated to each individual share; - in the event of other measures or events that would lead to a comparable dilution of the economic value of the option or conversion rights or option or conversion obligations. Unless compensation provides for granting holders of existing bonds with conversion or option rights or obligations the right to convert or subscribe to shares in the amount they would be entitled to after exercising the option or conversion rights or fulfilling the option or conversion obligations, the adjustment will be made in accordance with Section 216 (3) AktG such that the economic value of the conversion or option rights or obligations will remain unaffected by the measures or events triggering such adjustment. 13/37

14 As an alternative to adjusting the conversion or option price, it is possible for the Company in all cases, as determined in more detail in the terms and conditions of the bonds, to make a payment in the appropriate amount of cash upon exercise of the conversion or option rights or upon fulfilment of the conversion or option obligations. Section 9 (1) AktG and Section 199 (2) AktG shall continue to apply in all cases and must be complied with. (iv) Subscription right and exclusion of subscription right Shareholders shall generally be granted a right to subscribe for bonds when these are issued. The bonds may also be underwritten by one or several banks, one or several undertakings within the meaning of Section 53 (1) sentence 1 or Section 53 b (1) sentence 1 or (7) of the German Banking Act (Kreditwesengesetz (KWG)), or a group or a syndicate of banks and/or any such enterprises subject to the obligation that they offer these to the shareholders for subscription. If the bonds are issued by a company in which the Company holds a direct or indirect minority interest, the Company shall ensure that the statutory subscription rights be granted to the shareholders in accordance with the preceding sentences. However, the Management Board shall be authorized to, with the consent of the Supervisory Board, exclude the shareholders subscription rights in the following cases: - for fractional amounts; - insofar as it is necessary to grant the bearers of bonds with conversion or option rights or, as the case may be, obligations, the right to exchange or subscribe for new shares to the extent to which they would be entitled upon exercising their conversion or option rights or upon fulfilling their conversion or option obligations; - insofar as bonds are issued for non-cash contribution and provided that the value of the non-cash contribution is commensurate with the theoretical market price of the bonds determined in accordance with recognized mathematical valuation methods. 14/37

15 - insofar as the bonds with conversion or option rights are to be issued against cash and the issue price is not significantly below the bonds theoretical market value determined according to generally accepted actuarial methods in analogous application of section 186 (3) sentence 4 AktG. However, this authorization to exclude subscription rights shall apply only to the extent that the shares issued to cover the related conversion or option rights and/or obligations do not represent a pro-rata amount of more than 10% of the Company's share capital, either with respect to the date on which the authorization becomes effective or the date on which such authorization is exercised. This limit shall take into account any the pro-rata amount of the share capital that is attributable to shares that were issued or sold during the term of, and prior to the exercising of, said authorization, in direct or analogous application of Section 186 (3) sentence 4 AktG. - insofar as profit participation bonds or profit participation rights without option or conversion rights or obligations are issued, provided these are structured like straight bonds, i.e. do not confer any rights of membership in the Company or rights to liquidation proceeds, and the interest paid on them is not linked to the size of the net profit for the year, the net retained earnings or the dividend. Moreover, the interest payable and the issue price of the profit participation bonds or profit participation rights must be in line with the current market conditions for similar fund-raising transactions at the time of issue. The authorization to exclude shareholders' subscription rights is limited to the extent that the prorated amount of the share capital that is attributable to the new shares that are issued to satisfy conversion or option rights and to perform conversion or option obligations, may, neither upon entry into effect nor upon exercising of the authorization, exceed a total of 20% of the share capital, taking into consideration all further authorizations to exclude subscription rights. In accordance with Section 221 (4) sentence 2, and Section 186 (4) sentence 2 AktG, the Management Board has submitted a written report on the reasons for the exclusion of subscription rights. The content of 15/37

16 the report is disclosed following the agenda items in this invitation to the Ordinary Annual General Meeting. (v) Authorization to determine further details The Management Board shall be authorized, with the consent of the Supervisory Board, to determine all further details of the issue and terms of the bonds or to establish these in agreement with the executive bodies of the companies that issue the bonds and in which the Company holds a direct or indirect majority interest. This applies in particular to the interest rate, the issue price, the maturity period and denomination, the conversion or option period, fixing of an additional cash payment, compensation for or combination of fractional amounts, cash payment instead of delivery of no-par value registered shares, as well as the delivery of existing instead of the issue of new no-par value registered shares. c) Conditional Capital (i) Cancellation of Conditional Capital 2012 The conditional capital increase adopted by the Annual General Meeting on May 11, 2012 and contained in Section 4 of the Company's Articles of Association (Conditional Capital 2012), as amended by the resolution passed by the Annual General Meeting on January 29, 2016, shall be revoked. (ii) Conditional Capital 2016 The Company's share capital shall be increased conditionally by up to EUR 1,766, through issuing up to 1,766,718 new no-par value registered shares entitled to dividend as of the beginning of the fiscal year in which they are issued (Conditional Capital 2016). The conditional capital increase serves to grant bonds that are issued by the Company, or companies in which the Company holds a direct or indirect majority interest, from November 9, 2016 through November 8, 2020 by virtue of the authorization passed by the Annual General Meeting (under agenda item 10 lit. b), insofar as the issue is against cash payment. The conditional capital increase shall be effected only to the extent to which holders exercise their conversion or option rights, or conversion or 16/37

17 option obligations under such bonds are fulfilled and no other forms of fulfilment are used to service these rights. Shares may only be issued from the conditional capital at a conversion or option price in line with the provisions set forth in the authorization resolved by the Annual General Meeting on November 9, 2016 under lit. b of this agenda item. The Management Board shall be authorized to, with the consent of the Supervisory Board, determine the further details of the implementation of the conditional capital increase. The Supervisory Board is authorized to amend Section 4 of the Articles of Association to reflect the number of new no-par value registered shares issued, and to make all other related amendments to the Articles of Association that only affect the wording. d) Section 4 of the Company's Articles of Association shall be amended and reworded as follows: "The Company's share capital has been conditionally increased by up to EUR 1,766, through the issue of up to 1,766,718 new no-par value registered shares entitled to dividend from the beginning of the financial year of their issue (Conditional Capital 2016). The conditional capital increase serves to grant shares to holders of convertible bonds and/or bonds with warrants, profit participation certificates and/or profit participation bonds (or combinations of any such instruments) issued by the Company, or by companies in which the Company holds a direct or indirect majority interest, from November 9, 2016 through November 8, 2020 by virtue of the authorization granted by the Annual General Meeting, insofar as the issue is against cash payment. The conditional capital increase shall be effected only to the extent to which holders exercise their conversion or option rights, or conversion or option obligations under such bonds are fulfilled and no other forms of fulfilment are used to service these rights. The Management Board is authorized, with the consent of the Supervisory Board, to determine the further details for the implementation of the conditional capital increase. 17/37

18 The Supervisory Board is authorized to amend the wording of Section 4 of the Articles of Association to reflect the number of new no-par value bearer shares issued, and to make all other related amendments to the Articles of Association that only affect the wording." 18/37

19 Report of the Management Board on agenda item 9 pursuant to Section 203 (2) sentence 2, and Section 186 (4) sentence 2 German Stock Corporation Act (AktG) The authorized capital provided for in Section 5 of the Company's Articles of Association (Authorized Capital 2012) will expire on May 10, 2017, thus possibly prior to the Company's next ordinary Annual General Meeting. Under agenda item 9, the Management Board and the Supervisory Board propose that the existing authorized capital be revoked and a new authorized capital be adopted, with the Articles of Association being amended to reflect these changes. With regard to the authorization to exclude subscription rights within the framework of the new authorization to use authorized capital in accordance with Section 203 (2) sentence 2, and Section 186 (4) sentence 2 AktG, the Management Board presents a written report which is published in full hereinafter: Authorized Capital 2016 Under agenda item 9 it is proposed that the Management Board be authorized, subject to the approval of the Supervisory Board, to increase the Company's share capital once, or several times, before November 8, 2020 by up to a total of EUR 2,944, by issuing up to 2,944,531 new no-par value registered shares in exchange for cash and/or non-cash contributions (Authorized Capital 2016). The proposed Authorized Capital 2016 in the amount of EUR 2,944,531 accounts for approx. 50 % of the Company's current share capital of EUR 5,889, The requested authorization to create a new authorized capital is intended to provide the Management Board with a flexible instrument for structuring corporate financing. The purpose of the proposed authorized capital is to enable the Management Board to continue raising the capital required for the Company's further development in the capital markets at short notice, by issuing new shares against cash contributions, and to swiftly exploit attractive opportunities which may arise in the markets to cover the Company's future financing needs. Furthermore, the Management Board should in particular be in a position to exploit opportunities for acquisitions as they arise in the market for a non-cash capital increase. 19/37

20 If the Management Board, with the consent of the Supervisory Board, makes use of the authorization to utilize the authorized capital, the shareholders will in general be entitled to subscription rights (Section 203 (2) sentence 2, Section 186 (1) AktG). To the extent that the shareholders do not have the opportunity to directly subscribe for the shares to be issued, the Management Board may, at its option, issue shares to a bank, or to an equivalent institution with regard to the law or the proposed resolution, or to a group or syndicate of credit institutes and/or any such undertakings, with the obligation to offer the bonds to the shareholders in accordance with their subscription rights (indirect subscription right within the meaning of Section 186 (5) AktG). However, the Management Board shall be authorized to, with the Supervisory Board s consent, exclude subscription rights under certain conditions in the interest of the Company and the shareholders. Exclusion of subscription rights to eliminate fractional amounts The Management Board shall be authorized, with the Supervisory Board s consent, to exclude the subscription rights of shareholders to the extent this is required to eliminate fractional amounts. The authorization to exclude subscription rights for fractional amounts opens up the possibility of adopting simple and practicable subscription ratios in the event of a capital increase. Fractional amounts arise if not all of the new shares can be distributed evenly among the shareholders as a result of the subscription ratio or the amount of the capital increase. Fractional amounts are of subordinate importance in relation to the overall capital increase. Accordingly, the disadvantages for the shareholders as a result of the exclusion of subscription rights for fractional amounts are negligible in the light of the procedural benefits for the Company. Exclusion of subscription rights for the acquisition of companies, parts of companies or holdings in companies or other assets, including receivables, in return for the issue of shares Furthermore, the Management Board should be enabled to exclude the shareholders' subscription rights in order to acquire companies, parts of companies or holdings in companies or other assets (including receivables) from third parties, in return for the issue of shares. This possibility of issuing shares considerably increases the room for manoeuvre of the Management Board vis à vis competitors, since practical experience shows that, both in international and national markets, shares in the acquiring company are often demanded in return for attractive acquisition targets. Especially with large corporate units, these considerations should or can frequently not be met 20/37

21 with money. In particular to avoid placing a burden on the Company's liquidity, it may be more advantageous if the consideration to be provided by the Company within the framework of the corporate merger or the acquisition of a company, parts of a company or a holding in companies can be paid in whole or in part in new shares of the acquiring company. It is in the interest of the Company and the shareholders to be able to act quickly and flexibly on the international and national markets. This also includes the possibility to improve the competitive position by merging with other companies or by acquiring companies, parts of companies, and interests in companies. In order to facilitate any transactions in the Company's interest in the future, too, it is required to make use of authorized capital with the option of excluding subscription rights. Where new shares are to be issued as consideration for the purpose of acquiring companies, parts of companies or participating interests in companies or other assets (including receivables), such issue under a capital increase requires the exclusion of existing shareholders' subscription rights. The Management Board should therefore be authorized to exclude subscription rights in any such cases. The price at which the new shares are used in this case depends on the individual circumstances. When determining the valuation ratios, the Management Board will ensure in any case that the shareholders' interests are adequately protected and will be guided by the Company's interests. The Management Board will use the market price of the Company's shares as a basis for assessing the value of the Company s shares granted as consideration. However, the Management Board will not create a schematic link to the market price, in particular, so as to prevent jeopardizing any negotiation results by short-term fluctuations in the market price. In addition, the proposed resolution explicitly provides that subscription rights can be excluded subject to the Supervisory Board's consent in order to issue new shares within the framework of acquiring depositable assets related to the acquisition of companies, parts of companies or interests in companies. In the context of an acquisition project, it may be economically reasonable to acquire further assets in addition to the company being acquired as such, in particular any assets that serve the purposes of the company being acquired economically. This applies in particular, if the company being acquired does not itself hold the industrial property rights or the rights to the intangible assets related to its business operations. In any such or similar cases, the Company must be in a position to acquire assets connected with such acquisition projects and to grant shares as consideration if this helps to conserve liquidity or if this is demanded by the seller, provided that the relevant assets are 21/37

22 depositable. Therefore, the Company must also be able to increase its share capital in exchange for assets in kind whilst excluding the shareholders' subscription rights. In any such cases, non-cash contributions are economic assets related to the acquisition project. Finally, the Management Board is in particular also to be authorized to, with the Supervisory Board's consent, exclude subscription rights when use is made of the Authorized Capital 2016 in order to grant, in whole or in part, new shares in the Company instead of payment in cash to holders of claims against the Company, whether or not these are securitized and are derived from the sale of companies, parts of companies or interests in companies. In this way, the Company has the additional flexibility of subsequently granting shares instead of cash, including in cases in which it is, for example, obliged to make a payment for an acquired company or interest, and is thus able to protect liquidity. When use is made of the Authorized Capital 2016, receivables due from the Company are non-cash contributions in any such cases. In order to be able to implement transactions like the ones described here swiftly and with the requisite flexibility, the Company must be in a position to raise its share capital in exchange for issuing shares whilst excluding the shareholders' subscription rights. Therefore it is necessary for the Management Board to be authorized to exclude shareholders' subscription rights when the new shares are issued. The Management Board shall, however, also seek the consent of the Supervisory Board in this connection. When subscription rights are granted, company mergers and the acquisition of companies, parts of companies or interests in companies or in any other depositable economic assets related to any such acquisition project in exchange for issuing new shares are not possible, and the advantages offered to the Company and the shareholders will not materialize. The Company is currently not contemplating any specific merger or acquisition in respect of which it intends to make use of the Authorized Capital 2016 and the noncash capital increase option included therein whilst subscription rights are excluded. Should any specific opportunities with regard to the acquisition of any companies or any parts thereof or interests therein open up, or if it is possible to acquire any depositable assets that are related to an acquisition project, the Management Board will carefully assess whether or not to make use of the option to increase capital against non-cash contributions and to exclude subscription rights. The Management Board will only make use of the authorization if it has reached the conclusion that the acquisition in return for issuing new shares of the Company is in the well-understood 22/37

23 interest of the Company and the shareholders. Therefore, the Management Board will carefully examine and satisfy itself that the value of the non-cash contribution is in reasonable proportion to the value of the shares. Exclusion of subscription rights for previously issued bonds The possibility of excluding shareholders' subscription rights is based on efficiency and flexibility considerations to the extent to which this is necessary to grant holders of conversion or option rights or conversion obligations, issued by the Company or by a company in which the Company holds a direct or indirect majority interest, a right to subscribe to new shares to the extent that they would be entitled to if they exercised their options or conversion rights or after fulfilling their corresponding obligations. Bonds with conversion or option rights or, as the case may be, the relevant obligations must include an antidilution protection device in order to facilitate their placement in the capital market, which provides that, in the case of subsequent share issues, the bond holders may be granted a conversion or subscription right to new shares equal to that of shareholders. The holders of bonds will thus be treated as if they were already shareholders. In order to protect the bonds with such an antidilution device, the shareholders rights to subscribe for such shares must be excluded. This facilitates the placement of the bonds, and thus serves the shareholders and the Company s interests in an optimum company financing structure. In addition, the exclusion of subscription rights in favour of the holders of bonds that grant a conversion or option right or give rise to the corresponding obligation, offers the advantage that, if the authorization is utilized, the conversion and/or option price does not have to be reduced in accordance with the bond conditions for the holders of existing bonds that grant a conversion or option right or give rise to the corresponding obligation. This facilitates a higher cash inflow and is therefore in the interest of the Company and its shareholders. Exclusion of subscription rights for shares that account for less than 10 % of the share capital Finally, the exclusion of subscription rights should also be permitted according to Section 203 (1) and (2), Section 186 (3) sentence 4 AktG if the amount of the share capital that is attributable to new shares for which subscription rights are excluded does not, either at the time of the authorization taking effect or at the time of it being exercised, exceed a total of 10% of the Company s share capital and the issue price of the new shares is not significantly lower than the market price. This is to enable the Management Board to take swift advantage of favourable stock market situations at short notice, thus strengthening the Company's equity capital in a maximum fashion. 23/37

24 Experience has shown that due to the clearly increased flexibility in implementing measures, the exclusion of subscription rights results in a higher inflow of funds than a comparable increase in capital with subscription rights for shareholders. This is due to the fact that there is a subscription period of at least two weeks in the event that a subscription right is granted. The Company would then not be in a position to promptly respond to favourable or unfavourable market conditions but would be exposed to declining share prices during the subscription period, which could lead to less favourable opportunities for the Company to procure capital. It is true that Section 186 (2) sentence 2 AktG permits publication of the subscription price by the third to the last day of the subscription period. However, in light of the frequently observed volatility in the stock markets, there still exists a market risk for several days which leads to precautionary discounts when setting the conditions of the bonds and, thus, does not permit close to market conditions. The existence of a subscription right also endangers the successful placement with third parties or involves additional expenses due to the uncertainty of whether or not the subscription right will be exercised. In addition, the possibility of excluding subscription rights enables the Management Board to win over new groups of investors. The restriction to 10% of the share capital minimizes the dilution effect for shareholders whose subscription rights have been excluded. This is also ensured by the fact that the aforementioned restriction to 10% of the share capital is to include shares that are issued or sold during the term of this authorization, excluding subscription rights, in direct, corresponding or mutatis mutandis application of section 186 (3) sentence 4 AktG. This restriction also takes into account the pro-rata amount of the share capital that is attributable to shares that are issued or are to be issued in order to service option or conversion rights or to fulfil option or conversion obligations arising from bonds that are issued during the term of this authorization, in mutatis mutandis application of Section 186 (3) sentence 4 AktG, excluding shareholders' subscription rights. Due to the limited scope of the capital increase, the shareholders concerned have the option to acquire the required number of shares on the stock exchange, thus maintaining their participation ratios at the prevailing market conditions. The pecuniary interests of shareholders are safeguarded by the fact that under this authorization the shares may only be issued at a price that is not substantially lower than the stock exchange price of listed shares of the same class carrying the same rights. Moreover, the Management Board will determine the equivalent value of the shares in any case exclusively in the interest of the Company and its shareholders. 24/37