This version of the notice of shareholder s meeting, prepared for the convenience of English-speaking readers, is a translation of the German original. For the purposes of interpretation the German text shall be authoritative and final. SFC Energy AG Brunnthal - ISIN DE0007568578 - - WKN 756857 - We hereby invite our shareholders on Thursday, May 7, 2015 at 10:00 a.m. at Künstlerhaus München, Lenbachplatz 8, 80333 Munich, to the Annual General Meeting DAC17938446/10 124568-0017
AGENDA 1. Presentation of the approved annual financial statements of SFC Energy AG and the consolidated annual financial statements, as approved by the Supervisory Board, as at December 31, 2014, the management reports for SFC Energy AG and for the Group for fiscal year 2014, including the explanatory report of the Management Board on the information under Section 289 para. 4 and Section 315 para. 4 of the German Commercial Code ("Handelsgesetzbuch" - "HGB"), and the report of the Supervisory Board No resolution will be adopted on agenda item 1 as it refers to the granting of access to, and the explanation of, the aforementioned documents and as a resolution by the Annual General Meeting on the approved annual financial statements and the consolidated annual financial statements, as approved by the Supervisory Board, and the remaining documents is not provided for by law. The Management Board and, as far as the report of the Supervisory Board is concerned, the Supervisory Board will explain the documents made available at the Annual General Meeting. Under their right to information, the shareholders will have the opportunity to ask questions regarding those documents at the Annual General Meeting. 2. Resolution on the approval of the actions of the members of the Management Board for fiscal year 2014 The Supervisory Board and the Management Board propose that the actions in fiscal year 2014 of the members of the Management Board who were in office during that period be approved. 3. Resolution on the approval of the actions of the members of the Supervisory Board for fiscal year 2014 The Management Board and the Supervisory Board propose that the actions in fiscal year 2014 of the members of the Supervisory Board who were in office during that period be approved. 4. Resolution on the appointment of the auditor for the financial statements and the auditor for the consolidated financial statements and the auditor for the review of the interim financial reports for fiscal year 2015 The Supervisory Board proposes to adopt the following resolutions: a) Deloitte & Touche GmbH Wirtschaftsprüfungsgesellschaft, Munich, is appointed as auditor for the financial statements and the consolidated financial statements for fiscal year 2015. b) Deloitte & Touche GmbH Wirtschaftsprüfungsgesellschaft, Munich, is appointed as auditor for the review of interim financial reports for fiscal year 2015, to the extent that any such reviews are carried out. - 2 -
Before proposing the resolutions, the Supervisory Board obtained a statement of independence from Deloitte & Touche GmbH Wirtschaftsprüfungsgesellschaft, Munich, as required by the German Corporate Governance Code. 5. Resolution on providing Supervisory Board Members with pre-emptive protection against liability risks The ability to acquire personnel for a professionally qualified and independent Supervisory Board is a key objective of SFC Energy AG, one whose fulfillment entails special challenges given the Company's geographically dispersed business operations, its orientation towards the capital markets and its limited financial resources. To make this objective easier to meet, the members of the Supervisory Board are to be granted the protection of certain pre-emptive safeguards which just like those granted to Management Board Members will adequately mitigate their liability risks and enable them to mount an appropriate legal defense against potential claims. To this end, the aforementioned safeguards must be adopted by the General Meeting and configured in such a way as to provide the Supervisory Board Members with lasting and reliable protection that cannot be modified unilaterally by the General Meeting at some later time. The Board of Management and the Supervisory Board therefore propose the following resolution: (a) Section 15a shall be added to the Articles of Association and shall read as follows: Section 15a Supervisory Board Members' right to information Supplementally to their statutory rights in this regard, the Supervisory Board Members shall continue to enjoy the right to inspect and copy documents of the Company after the end of their mandate and until expiry of the limitation period pursuant to Section 116 and Section 93 para. 6 of the Aktiengesetz (AktG, German Stock Corporation Act), insofar as such documents relate to their Supervisory Board functions (particularly Supervisory Board resolutions and minutes), and to the extent that civil, criminal or administrative proceedings are pending or imminent against them due to their activities as former Supervisory Board Members. (b) Section 16 of the Company s Articles of Association shall be re-formulated as follows: (1) The members of the Supervisory Board shall be entitled to reimbursement of any cash expenditures they incur in the performance of their Supervisory Board functions (along with the corresponding value-added tax) and of any legal expenses they incur in defending themselves against criminal investigations and court proceedings in connection with their activities as Supervisory Board Members, including the customary market fees charged by such major international - 3 -
law firms or appropriate, specialized law firms which the Supervisory Board Members may appoint as legal counsel at their discretion. (2) Upon taking up their mandate, the Supervisory Board Members shall be entitled to receive insurance coverage from the Company under an appropriate, deductible-free D&O {Directors & Officers} policy separate from the one taken out for the Management Board and having an insured amount of at least EUR 15,000,000.00. Insofar as the D&O Insurer has granted the Company the option to top up the insured amount in the event the insured amount is used up for other loss events, the Company must automatically exercise said option in the interests of the Supervisory Board Members without having to be specifically requested to do so. - Insofar as this is legally permissible, insurance coverage shall also be taken out against potential legal claims asserted against Supervisory Board Members in or from a foreign country and/or under foreign law, particularly claims for punitive and/or exemplary damages under US and/or Canadian law or in connection with the regulations/codes of conduct promulgated by the United States Securities and Exchange Commission (SEC). - The insurance coverage shall encompass the assumption of legal defense costs for Supervisory Board Members, including the customary market fees charged by such major international law firms or appropriate, specialized law firms which the Supervisory Board Members may appoint as legal counsel at their discretion. - The insurance coverage owed shall feature an insured period encompassing the entire duration of each Supervisory Board Member s mandate as well as the period falling between the ending of said mandate and the expiry of the limitation period pursuant to Section 116 and Section 93 para. 6 AktG. As regards the insured period following the ending of the Supervisory Board mandate, each former Supervisory Board Member is to be placed in the same position with regard to D&O insurance as the respective current members of the Supervisory Board and Board of Management. In particular, the maximum insured amount is to be allocated equally among these persons. - If developments in the D&O insurance market should make it impossible or unreasonable to keep the above-defined minimum standard of insurance coverage in place, the Company shall be obligated to procure insurance coverage that comes as close as possible to said minimum standard in view of prevailing market conditions. (c) (d) The current Section 16 para. 2 of the Company s Articles of Association shall become Section 16 para. 3. Section 20 para. 2 of the Company s Articles of Association shall be supplemented with sentences 3 and 4, which shall read as follows: - 4 -
Any changes to Section 15a shall require a resolution adopted by a qualified voting majority of at least 90% of the share capital represented during the voting. Any changes to Section 20 para. 2 sentence 3 shall also require a resolution adopted by a qualified voting majority of at least 90% of the share capital represented at the voting. 6. Resolution on the cancellation of the existing authorized capital, the creation of a new authorized capital with the possibility of exclusion of shareholders subscription rights and corresponding amendment of the Articles of Association The existing authorization granted to the Management Board to increase the share capital in accordance with Article 5 para. 5 of the Company s Articles of Association (Authorized Capital 2013) continues in force until May 5, 2018. The Authorized Capital 2013 was created by resolution of the Annual General Meeting of May 6, 2013, and was registered with the Company s commercial register on May 22, 2013. Authorized Capital 2013 has already been partially issued by virtue of the capital increases registered on September 6, 2013 and December 2, 2014, respectively. This leaves the Company with remaining authorized capital of EUR 2,643,126.00. In order for the Company being able to adjust its equity base flexibly and sustainably to needs and opportunities arising in the future, it is proposed to replace the Authorized Capital 2013 by a new approved authorized capital. The new approved authorized capital shall have the maximum volume legally permissible of 50% of the current share capital of the Company, i.e. EUR 4,305,602.00, and may be used until May 6, 2020 (Authorized Capital 2020). The Management Board and the Supervisory Board propose to resolve: a) The Authorized Capital 2013 pursuant to Article 5 para. 5 of the Articles of Association is rescinded. b) The Management Board shall be authorized, with approval of the Supervisory Board, in the period until May 6, 2020, to increase the Company s share capital once or in partial amounts up to a total amount of EUR 4,305,602.00 by issuing up to 4,305,602 new no-par value bearer shares against cash contributions and/or contributions in kind (Authorized Capital 2015). A subscription right shall generally be granted to shareholders. The subscription right may also be granted in such a way that the shares are taken over by one or more credit institutions with an obligation to offer them to the Company s shareholders for subscription (indirect subscription right). The Management Board shall be authorized, with approval of the Supervisory Board, to exclude the subscription right of the shareholders one or more times, (1) in order to exclude any fractional amounts from the shareholders subscription right; (2) to the extent necessary in order to grant holders of option or conversion rights or conversion obligations under bonds or profit sharing rights that provide for conversion and/or option rights or conversion obligations a subscription right to new shares to the same extent as they would be enti- - 5 -
tled to as shareholders after exercise of the option or conversion right or fulfillment of the conversion obligation; (3) in the case the new shares are issued against cash contributions if the proportionate amount of the share capital attributable to the new shares in total does not exceed 10% of the share capital neither at the time this authorization takes effect nor at the time this authorization is exercised ( Maximum Amount ) and the issue price of the new shares is not substantially below the stock exchange price of the Company s shares of the same class already quoted on the stock exchange at the time that the issue price is finally determined; (4) in the case the new shares are issued against contribution in kind, in particular in the form of companies, company parts, shares in companies or claims. To be deducted from the Maximum Amount according to no. (3) above is the proportionate amount of share capital accounted for by newly issued or previously acquired own shares issued or disposed of during the term of this authorization under exclusion of subscription rights pursuant to or in application of Section 186 para. 3 sentence AktG as well as the proportionate amount of share capital accounted for by shares that are issued or must be issued to serve bonds or profit sharing rights that provide for conversion and/or option rights or conversion obligations, provided that the bonds and/or profit sharing rights are issued during the term of this authorization and under exclusion of subscription rights in application of Section 186 para. 3 sentence 4 AktG. A deduction that has been carried out in accordance with the foregoing sentence due to the exercise of authorizations to (i) issue new shares pursuant to Section 203 para. 1 sentence 1, para. 2 sentence 1, Section 186 para. 3 sentence 4 AktG and/or (ii) dispose of own shares in accordance with Section 71 para. 1 no. 8, Section 186 para. 3 sentence 4 AktG and/or (iii) issue bonds or profit sharing rights pursuant to Section 221 para. 4 sentence 2, Section 186 para. 3 sentence 4 AktG is cancelled with effect for the future if and to the extent the respective authorization(s), which exercise have led to the deduction, are granted again by the Annual General Meeting taking into account the respective legal requirements. The Management Board shall be authorized, with approval of the Supervisory Board, to decide on the further details of the capital increase as well as on the terms of the issuance of shares. The Supervisory Board shall be authorized to amend the wording of Section 5 of the Articles of Association in accordance with the full or partial exercise of the Authorized Capital 2015 and, in case the Authorized Capital 2015 is not or not fully utilized until May 6, 2020, after expiration of the authorization period. c) Section 5 para. 6 of the Articles of Association shall be formulated as follows: The Management Board is authorized, with approval of the Supervisory Board, in the period until May 6, 2020, to increase the Company s share capital once or in partial amounts up to a total amount of EUR 4,305,602.00 by issuing up to 4,305,602 new no-par value bearer shares against cash contributions and/or contributions in kind (Authorized Capital 2015). - 6 -
A subscription right will generally be granted to shareholders. The subscription right may also be granted in such a way that the shares are taken over by one or more credit institutions with an obligation to offer them to the Company s shareholders for subscription (indirect subscription right). The Management Board is authorized, with approval of the Supervisory Board, to exclude the subscription right of the shareholders one or more times, a) in order to exclude any fractional amounts from the shareholders subscription right; b) to the extent necessary in order to grant holders of option or conversion rights or conversion obligations under bonds or profit sharing rights that provide for conversion and/or option rights or conversion obligations a subscription right to new shares to the same extent as they would be entitled to as shareholders after exercise of the option or conversion right or fulfillment of the conversion obligation; c) in the case the new shares are issued against cash contributions if the proportionate amount of the share capital attributable to the new shares in total does not exceed 10% of the share capital neither at the time this authorization takes effect nor at the time this authorization is exercised ( Maximum Amount ) and the issue price of the new shares is not substantially below the stock exchange price of the Company s shares of the same class already quoted on the stock exchange at the time that the issue price is finally determined; d) in the case the new shares are issued against contribution in kind, in particular in the form of companies, company parts, shares in companies or claims. To be deducted from the Maximum Amount according to Section 5 para. 6 lit. c) of the Articles of Association is the proportionate amount of share capital accounted for by newly issued or previously acquired own shares issued or disposed of during the term of this authorization under exclusion of subscription rights pursuant to or in application of Section 186 para. 3 sentence 4 AktG as well as the proportionate amount of share capital accounted for by shares that are issued or must be issued to serve bonds or profit sharing rights that provide for conversion and/or option rights or conversion obligations, provided that the bonds and/or profit sharing rights are issued during the term of this authorization and under exclusion of subscription rights in application of Section 186 para. 3 sentence 4 AktG. A deduction that has been carried out in accordance with the foregoing sentence due to the exercise of authorizations to (i) issue new shares pursuant to Section 203 para. 1 sentence 1, para. 2 sentence 1, Section 186 para. 3 sentence 4 AktG and/or (ii) dispose of own shares in accordance with Section 71 para. 1 no. 8, Section 186 para. 3 sentence 4 AktG and/or (iii) issue bonds or profit sharing rights pursuant to Section 221 para. 4 sentence 2, Section 186 para. 3 sentence 4 AktG is cancelled with effect for the future if and to the extent the respective authorization(s), which exercise have led to the deduction, are granted again by the Annual General Meeting taking into account the respective legal requirements. - 7 -
The Management Board is authorized, with approval of the Supervisory Board, to decide on the further details of the capital increase as well as on the terms of the issuance of shares. The Supervisory Board is authorized to amend the wording of Section 5 of the Articles of Association in accordance with the full or partial exercise of the Authorized Capital 2015 and, in case the Authorized Capital 2015 is not or not fully utilized until May 6, 2020, after expiration of the authorization period. Report of the Management Board to the Annual General Meeting on the exclusion of subscription rights regarding agenda item 6 in accordance with Sections 203 para. 2, 186 para. 3 sentence 4, para. 4 sentence 2 AktG: The granting of an authorization to increase the share capital (Authorized Capital 2015) is intended to give the administration for the five following years the opportunity to quickly and flexibly procure equity if needed. The availability of financing instruments independently of the interval between the Annual General Meetings is of particular importance, since the date, to which funds must be generated, cannot be predicted in advance. In addition, potential transactions may in light of competition with other companies only be successfully carried out if secured financial instruments are available at the commencing of the negotiations. The legislator has addressed this need of the companies and provides stock corporations with the power to authorize the administration to increase the share capital for a limited period of time and in a limited amount without another resolution of the Annual General Meeting required. Therefore, the administration proposes to the Annual General Meeting, to issue such authorization until the maximum amount permissible by law of 50% of the nominal share capital. In utilizing the authorization to issue new shares, the shareholders are generally to be granted a subscription right in order to enable them to participate in a capital increase in proportion to their participation and to maintain both the impact of their voting rights and the total value of their ownership in the Company. This is particularly true if the new shares are not directly offered to the shareholders for subscription, but through one or more credit institutions, provided that these are obliged to offer the new shares to the shareholders for subscription by way of indirect subscription rights. The proposed resolution therefore provides for such provision. The authorization of the Management Board pursuant to no. (1) to exclude, with approval of the Supervisory Board, the subscription right of shareholders for fractional amounts, makes it possible to determine a workable subscription rights ratio with respect to the amount of the respective capital increase. The exclusion of subscription rights according to no. (2) in order to grant subscription rights to holders of bonds or profit sharing rights that provide for conversion and/or option rights or conversion obligations is necessary and appropriate to be able to protect the holders against dilution of their rights in the same extent as shareholders. In order to grant such dilution protection it is necessary to grant to the holders of conversion or option rights or conversion obligations a subscription right to new shares to the same extent as they would be entitled to after exercise of the option or conversion right or fulfillment of the conversion obligation. The granting of such a subscription right would obviate the otherwise existing need to reduce the conversion or option price for the shares that are to be issued in accordance with the conditions of the conversion or option bonds. - 8 -
The authorization according to no. (3) to exclude subscription rights one or more times for a partial amount of the authorized capital in the case the new shares are issued against cash contributions if the proportionate amount of the share capital attributable to the new shares in total does not exceed 10% of the share capital neither at the time this authorization takes effect nor at the time the authorization is exercised, is based on Section 186 para. 3 sentence 4 AktG. The limitation of the authorization amount for such capital increase to 10% of the share capital as well as the requirement that the issue price of the new shares is not substantially below the stock exchange price of the Company s shares already quoted on the stock exchange at the time of the final determination of the issue price, ensure that the subscription right s scope of protection namely that of protecting the shareholders from loss of influence and dilution of value is not or only to a reasonable extent - affected. The influence of shareholders excluded from subscription can be safeguarded by supplementary buying on the stock market; the restriction of the exclusion of subscription rights to a capital increase that does not exceed 10% of the share capital ensures that in light of the liquid market in SFC Energy AG shares such supplementary share buying on the stock exchange is indeed possible. For the Company, the capital increase free of subscription rights leads to the greatest possible creation of capital and optimal revenues. The Company is thus enabled to respond quickly and flexibly to favorable stock market situations. While Section 186 para. 2 sentence 2 AktG does permit the subscription price to be published not later than three days prior to expiration of the subscription period, in view of the volatility in the stock markets it must be borne in mind that even in this case there is still a significant market risk namely that of price fluctuations extending over several days which is likely to result in safetymargin deductions when determining the sales price and thus in terms that are not close to market. In addition, granting the subscription right would inhibit the Company from promptly responding to favorable market conditions due to the length of the subscription period. For this reason, the authorization to exclude the subscription right is in the interest of the Company and its shareholders. To further protect shareholders from loss of influence and dilution of value, the authorization to exclude subscription rights is limited by the fact that other capital measures having the effect of a cash capital increase without subscription rights are counted against the amount up to which a cash capital increase is permitted to occur with exclusion of subscription rights in accordance with Section 186 para. 3 sentence 4 AktG. The authorization thus provides that the issuance of new shares or the disposition of shares that the Company has acquired during the term of the authorization reduces the maximum amount just as much as a future issue of warrant-linked and/or convertible bonds against cash contributions if the shareholders subscription right was excluded in application of Section 186 para. 3 sentence 4 AktG. The resolution proposal on item 6 of the Agenda foresees that a deduction that has been carried out in accordance with the aforementioned provision due to the exercise of authorizations to (i) issue new shares pursuant to Section 203 para. 1 sentence 1, para. 2 sentence 1, Section 186 para. 3 sentence 4 AktG and/or (ii) dispose of own shares in accordance with Section 71 para. 1 no. 8, Section 186 para. 3 sentence 4 AktG and/or (iii) issue bonds or profit sharing rights pursuant to Section 221 para. 4 sentence 2, Section 186 para. 3 sentence 4 AktG is cancelled with effect for the future if and to the extent the respective authorization(s), which exercise have led to the deduction, are granted again by the Annual General Meeting taking into account the respective legal requirements. In these cases the Annual General Meeting has decided again on the power of a simplified exclusion of the subscription right, so the reason for the deduction is cancelled again. If (i) new shares can be issued with simplified exclusion of the subscription right in accord- - 9 -
right in accordance with another statutory authorized capital again, (ii) convertible bonds and/or option bonds can be issued with simplified exclusion of the subscription right again or (iii) own shares can be sold with simplified exclusion of the subscription right again, this possibility should also be in place for the Authorized Capital 2015. When the new power of a simplified exclusion of the subscription right takes effect, the barrier with regard to the Authorized Capital 2015 due to exercising the authorization to issue new shares or to issue convertible bonds and/or option bonds or due to the sale of own shares ceases to exist. The majority requirements for such a resolution are identical to those for a resolution on generating authorized capital with the possibility of a simplified exclusion of the subscription right. Therefore, the resolution of the Annual General Meeting on creating (i) a new authorization to issue new shares pursuant to Section 203 para. 1 sentence 1, para. 2 sentence 1, Section 186 para. 3 sentence 4 AktG (thus, a new authorized capital), (ii) a new authorization to issue conversion bonds and/or option bonds pursuant to Section 221 para. 4 sentence 2, Section 186 para. 3 sentence 4 AktG or (iii) a new authorization to dispose of own shares in accordance with Section 71 para. 1 no. 8, Section 186 para. 3 sentence 4 AktG is a confirmation with respect to the resolution on the authorization to issue new shares from authorized capital in accordance with Section 203 para. 2 and Section 186 para. 3 sentence 4, provided that the legal requirements are observed. If an authorization to exclude subscription rights is exercised again in direct or commensurate application of Section 186 para. 3 sentence 4 AktG, the deduction is carried out again. The proposed authorization to exclude the subscription right in accordance with no. (4) should, in particular, enable the Company to acquire companies, company parts, shares in companies or claims in exchange for the granting of shares. This is a common form of acquisition. Practice has shown that, in many cases, the owners of attractive acquisition objects (also) demand shares in the acquiring company in return for the sale of their shareholding or a company. In order to also be able to acquire such acquisition objects, the Company must have the possibility of increasing its subscribed capital, if necessary very quickly, against a contribution in kind, while excluding the subscription rights of the shareholders. In addition, it will enable the Company to acquire companies, company parts, shares in companies and other assets without having to overtax the Company s liquidity. This is also true for the contribution of claims or other assets. The Management Board will carefully examine in each individual case of a possible acquisition of companies, company parts, shares in companies or other assets if it should make use of the authorization to increase the capital with subscription rights excluded and in doing so consider carefully whether the shares granted as consideration will be (wholly or partly) stem from a capital increase or provided that the legal requirements for this are met from the acquisition of own shares. The Management Board will only exclude the subscription right if the acquisition against the issuing of shares in the Company is in the interests of the Company. The Supervisory Board will only give its required approval to the use of the authorized capital with the exclusion of the subscription right if the described and all legal requirements have been fulfilled. The Management Board will report on the details of the use of the authorized capital with exclusion of subscription rights on the General Meeting following the use of the authorized capital. In the light of the foregoing, the authorization to exclude subscription rights is necessary in all four cases of Section 5 para. 5 of the Articles of Association to the described extent and in the interests of the Company due to the preceding explanations. - 10 -
7. Resolution to grant the new authorization to purchase and use Company shares pursuant to Section 71 para. 1 no. 8 AktG and to exclude shareholders subscription rights Except where expressly permitted by law, the Company must obtain a special authorization from the shareholders meeting to acquire its own shares. The authorization granted at the shareholders meeting in May 2010 expires on May 5, 2015, and therefore, the shareholders meeting will be asked to again authorize the Company to acquire its own shares. Under Section 71 para. 1 no. 8 AktG, the authorization can be given for a fiveyear period. The Management Board and the Supervisory Board therefore recommend that the shareholders grant the following new authorization to acquire and use Company shares, and to exclude subscription rights when doing so: a) The Company is authorized until May 6, 2020, to acquire its own shares, up to 10% of the current share capital. Along with other Company shares that are currently in the Company s possession or are attributable to it under Sections 71a ff. AktG, the shares acquired pursuant to this authorization may not exceed 10% of the then-current share capital at any time. The Company is expressly prohibited from acquiring its own shares in order to trade in them. The authorization may be exercised in whole or in part, once or on several occasions, to pursue one or more purposes, by the Company or its subsidiaries or by third parties on behalf of the Company or its subsidiaries. At the Management Board s election, the shares may be acquired on the stock exchange or by means of a public purchase offer directed to all shareholders. If the shares are purchased on the stock exchange, the purchase price per share (excluding ancillary costs) may not be more than 10% above or 20% below the average closing price of the Company s shares of the same class in XETRA trading (or a successor system) on the last five trading days of the Frankfurt Stock Exchange prior to the repurchase. In a public purchase offer or a public solicitation of the submission of offers, the purchase price or the limits of the purchase price range per share may not be more than 10% above or 20% below the average closing price of the Company s shares of the same class in XETRA trading (or a comparable successor system) on the last five trading days of the Frankfurt Stock Exchange prior to publication of the offer. If there are material fluctuations in the relevant price after the publication of a tender offer or a public solicitation of the submission of offers, the offer or the solicitation of offers can be adjusted. In this case, the relevant price will be based on the closing price for Company shares of the same class in Xetra trading (or a comparable successor system) on the last trading day on the Frankfurt Stock Exchange prior to the publication of the adjustment; the 10% limit for exceeding and the 20% limit for falling short is applicable to this amount. The volume of the offer or the public solicitation of the submission of offers can be limited. If the entire acceptance of the offer, or if the offers made by shareholders in response to a public solicitation of the submission of offers, exceed the total number of shares that the Company intends to acquire, the acquisition or the acceptance may be made in quotas. The Company may provide for a privileged acquisition or a privileged acceptance of a lower number of shares, up to 100 shares, to acquire offered Company shares. The offer to buy or the demand to make offers may be made subject to additional conditions. - 11 -
b) The Management Board is authorized to use the Company shares acquired pursuant to this authorization for all purposes permitted by law, including the following purposes: (i) The acquired Company shares can be sold other than via the stock exchange or via an offer to all shareholders if the acquired Company shares are sold at a price that is not materially less than the stock exchange price of Company shares at the time of sale. The stock exchange price for purposes of this rule is the average closing price of Company shares of the same class in Xetra trading (or a comparable successor system) on the last five trading days on the Frankfurt Stock Exchange prior to the sale of the shares. The shareholders subscription rights are excluded. This authorization is limited to the lesser of (1) 10% of the Company s share capital at the time the resolution is adopted by the shareholders meeting on May 7, 2015 or (b) 10% of the Company s capital at the time the shares are sold. When calculating the 10% limit, the proportionate amount of the share capital is to be deducted which is attributable to new or previously acquired Company shares that are issued or sold during the term of this authorization under exclusion of subscription rights pursuant to or analogously to Section 186 para. 3 sentence 4 AktG, and the proportion of the share capital attributable to shares which are or will be issued to service bonds or participatory rights with conversion or options rights or a conversion requirement, provided that the bonds or participation rights are issued during the time of this authorization with subscription rights being excluded pursuant to Section 186 para. 3 sentence 4 AktG. A deduction made according to the provision of the preceding sentence due to the exercise of authorizations (i) for the issuing of new shares pursuant to Section 203 para. 1 sentence 1, para. 2 sentence 1, Section 186 para. 3 sentence 4 AktG and/or (ii) for the selling of Company shares pursuant to Section 71 para. 1 No. 8, Section 186 para. 3 sentence 4 AktG and/or (iii) for the issuing of conversion and/or option bonds pursuant to Section 221 para. 4 sentence 2, Section 186 para. 3 sentence 4 AktG is not applicable with effect for the future if and insofar as the relevant authorization(s), the implementation of which brings about the credit, shall be reissued by the General Meeting in accordance with the legal regulations. (ii) The Company shares acquired can be sold other than via the stock exchange or an offer to all shareholders provided that the sale is for a contribution in kind, including in the context of the acquisition of companies, parts of companies or interests in companies and in the context of mergers or to satisfy the rights of owners or creditors under convertible bonds and/or warrant-linked bonds issued by the Company. Shareholders subscription rights are excluded in each case. (iii) The Management Board is also authorized to call in all or part of the repurchased shares without the need for an additional shareholders resolution. c) The foregoing authorizations to sell or call in Company shares may be exercised in full or in installments, one or more times, and individually or jointly. d) The Supervisory Board may also determine that action by the Management Board pursuant to these resolutions can only be taken with the Supervisory Board s consent. Report by the Management Board to the General Shareholders Meeting on exclusion of subscription rights under Item 7 of the Agenda pursuant to Section 71 pa- - 12 -
para. 1 no. 8, Section 186 para. 3 sentence 4 and Section 186 para. 4 sentence 2 AktG: In Item 7 of the Agenda, the proposal is made to the Annual Shareholders Meeting to authorize the Company pursuant to Section 71 para. 1 no. 8 AktG, through May 6, 2020, to repurchase up to 10% of the share capital that exists at the time of adoption of the resolution by the Annual Shareholders Meeting, including any shares that have already been purchased or that are attributable to the Company. The proposed authorization would replace the existing authorization that was granted by the General Shareholders Meeting on May 6, 2010. The aim of the authorization is to enable the Company to repurchase its own shares through May 6, 2020. The shares may be repurchased only on the stock exchange, by means of a public purchase offer directed to all shareholders or by publicly soliciting the submission of offers. As a result, all shareholders will have an equal opportunity to sell shares to the Company if the Company exercises the authorization to repurchase its own shares. The Company is entitled under the proposed resolution to sell or award the shares that are repurchased pursuant to this authorization, partially excluding the shareholders subscription rights. With the public solicitation of offers, those addressed can themselves decide how many shares they would like to offer the Company. If the extent to which the offer is accepted or, in the case of a solicitation of offers, the volume of offers submitted by shareholders exceeds the total number of shares the Company intends to purchase, purchases/offers can be made/accepted in part. Nevertheless, a preferred acquisition or preferred acceptance of small offers or small portions of offers up to a maximum of 100 shares should be possible in order to avoid their being any fractional amounts and small residual amounts when determining the number of shares to acquire and to make transaction settlement easier. The purchase price offered or the limits of the price spread offered per share (excluding incidental transaction costs) may not exceed by more than 10% or undercut by more than 20% the mean value of the closing prices of the Company s shares in Xetra trading (or a comparable successor system) for the five trading days on the Frankfurt Stock Exchange prior to the date on which the offer or public solicitation of offers is published. If there is substantial fluctuation in the relevant price of the Company s shares after a purchase offer or public solicitation of such an offer is published, the reference price can instead be the closing price in Xetra trading (or a comparable successor system) for shares of the Company that carry the same rights and features on the last trading day on the Frankfurt Stock Exchange immediately prior to publication of the respective price adjustment. The purchase offer or solicitation of offers can contain further terms and conditions. The shares acquired can be used for all purposes allowed by law, and in particular as follows: German law allows the shares repurchased by the Company to be resold to all shareholders on the stock exchange or by means of a public offering directed to all shareholders. Those forms of sale safeguard the rights of shareholders to equal treatment when the shares are reissued. The proposed resolution also states that the Management - 13 -
Board may sell the shares that are repurchased on the basis of the authorization other than on the stock exchange or by means of a public offering directed to all shareholders, if the shares are sold in exchange for cash contributions at a price that is not significantly lower than the market price of shares of SFC Energy AG of the same class at the time of the sale. This authorization, which is equivalent to exclusion from a subscription right, takes advantage of the possibility allowed under Section 71 para. 1 no. 8 AktG in corresponding application of the fourth sentence of Section 186 para. 3 AktG for simplified exclusion from subscription rights. In particular, in the interest of the Company, it will be possible to offer shares of the Company to institutional investors and/or to broaden the shareholder base. This is also intended to enable the Company to respond quickly and flexibly to favorable stock market conditions. The interests of the shareholders are taken into account because the shares can be sold only at a price that is not significantly lower than the market price of shares of SFC Energy AG of the same class at the time the commitment to sell is made. The final determination of the selling price of Company shares will be made immediately prior to their use. The management Board will measure any discount from the stock exchange price as low as possible under the market conditions prevailing at the time of the placement. The discount from the stock exchange price at the time of exercise of the authorization is not expected to be more than 3% and under no circumstances more than 5% of the stock exchange price. This authorization is limited to a total of 10% of the Company s share capital, both at the time when this authorization takes effect and at the time when it is exercised. The 10% limitation includes shares that were issued after this authorization took effect on the basis of an authorization resolved at the time the proposed authorization took effect or another authorization to issue new shares from authorized capital under Section 186 para. 3 sentence 4 AktG, with shareholders subscription rights excluded. Also included in this 10% limitation are shares that are or will be issued to service bonds with conversion or options rights, provided that such bonds were issued after this authorization took effect, on the basis of an authorization that was valid at the time the proposed authorization took effect or an authorization that replaces it by analogous application of Section 186 para. 3 sentence 4 AktG, with shareholders subscription rights excluded. Including such shares in the 10% limit ensures that acquired Company shares are not sold without exclusion of subscription rights under Section 186 para. 3 sentence 4 AktG if doing so would mean that the shareholders subscription rights for more than 10% of the capital are excluded with direct or indirect use of Section 186 para. 3 sentence 4 AktG and without a special objective reason. This more extensive limitation is in the shareholders interest, as they wish to maintain their percentage ownership intact. Moreover, shareholders always have the possibility of maintaining their percentage ownership by purchasing shares of SFC Energy AG on the stock exchange. The authorization is in the Company s interest because it provides the Company with greater flexibility. By way of qualification, the proposed resolution under agenda item 7 provides that a deduction made according to the preceding provision due to the exercise of authorizations (i) for the issuing of new shares pursuant to Section 203 para. 1 sentence 1, para. 2 sentence 1, Section 186 para. 3 sentence 4 AktG and/or (ii) for the selling of Company shares pursuant to Section 71 para. 1 No. 8, Section 186 para. 3 sentence 4 AktG and/or - 14 -
(iii) for the issuing of convertible bonds and/or warrant-linked bonds pursuant to Section 221 para. 4 sentence 2, Section 186 para. 3 sentence 4 AktG ceases to have effect for the future if and insofar as the relevant authorization(s), the implementation of which caused the deduction, is/are reissued by the shareholders meeting in accordance with the legal regulations. For in this case/these cases, the shareholders meeting decided again about the possibility of a simplified exclusion of subscription rights so that the reason for the deduction is no longer valid. Where (i) new shares are again sold under a simplified exclusion of subscription rights in accordance with another authorized capital under the Articles of Association, (ii) convertible bonds and/or warrant-linked bonds are again issued under the simplified exclusion of subscription rights or (iii) the Company is again entitled to sell Company shares subject to a simplified exclusion of subscription rights, this possibility shall again exist for the selling of Company shares. Upon the new authorization in relation to the simplified exclusion of subscription rights taking effect, the bar that arises as a result of the exercise of the authorization to issue new shares or to issue convertible bonds and/or warrant-linked bonds or as a result of the selling of Company shares lapses in relation to Company shares. The requirements for a majority for such a resolution are identical to those of a resolution on the authorization to purchase Company shares with the option of simplifying the exclusion of subscription rights when selling them. For this reason provided the statutory requirements are complied with the resolution by the shareholders meeting on the creation of (i) a new authorization for the issuing of new shares pursuant to Section 203 para. 1 sentence 1, para. 2 sentence 1, Section 186 para. 3 sentence 4 AktG (i.e. not yet authorized capital) and/or (ii) for the issuing of convertible bonds and/or warrant-linked bonds pursuant to Section 221 para. 4 sentence 2, Section 186 para. 3 sentence 4 AktG and/or (iii) for the selling of Company shares pursuant to Section 71 para. 1 No. 8, Section 186 para. 3 sentence 4 AktG at the same time should also be seen as a confirmation of the authorizing resolution regarding the selling of Company shares subject to the simplified exclusion of subscription rights under Section 71 para. 1 No. 8, Section 186 para. 3 sentence 4 AktG. In case of a renewed exercise of an authorization to exclude subscription rights in direct or analogous application of Section 186 para. 4 sentence 4 AktG, the deduction is made once again. The Management Board is to be further authorized to use the shares acquired pursuant to the proposed authorization as consideration for in-kind contributions, including for the acquisition of companies, parts of companies or interests in other companies and in the course of mergers. International competition and the globalization of the economy increasingly require this form of acquisition financing. The proposed authorization is intended to the Company the necessary leeway quickly and flexibly to take advantage of acquisition opportunities that arise on the domestic and international markets. The proposed exclusion of subscription rights also takes this into consideration. In determining the valuation relationships, the Management Board will also ensure that shareholders interests are properly taken into account. The authorized capital resolved by the shareholders meeting on May 6, 2013, or, if that is repealed at the shareholders meeting of May 07, 2015 and replaced by a newly adopted authorized capital (see agenda item 6 Authorized Capital 2015), the Authorized Capital 2015 is also available to the Company for the acquisition of companies or interests in other companies. When deciding on the nature of shares to be provided to finance such transactions, the Management Board will be guided solely by the interests of the Company and its shareholders. - 15 -
The Management Board is to be further authorized, with the Supervisory Board s consent, to use the shares acquired pursuant to the proposed authorization to satisfy the exchange rights or obligations of owners or creditors under the convertible and/or option bonds issued by the Company. If and to the extent that the Company makes use of this possibility, it will not be necessary to implement a conditional capital increase. The shareholders interests are therefore not affected by this additional possibility. The use of the Company s existing own shares instead of a capital increase or a cash payment can make economic sense, and thus the authorization is intended to increase flexibility. The Supervisory Board may, in the exercise of its discretion, provide that measures by the Management Board pursuant to the authorizations granted by the Shareholders Meeting can only be taken with the Supervisory Board s consent, pursuant to Section 71 para. 1 no. 8 AktG. The Management Board will inform the next shareholders meeting of any use of the authorization. 8. Resolution on the authorization to issue convertible bonds and/or warrant-linked bonds (and/or combinations of these instruments) with or without exclusion of subscription rights as well as on the repurposing of the Conditional Capital 2011 and on the creation of a Conditional Capital 2015 and on amending the Company's Articles of Association The authorization to issue convertible bonds and/or warrant-linked bonds granted to the Management Board during the shareholders meeting on May 5, 2011 will expire on May 4, 2016. It is possible that it will expire before the 2016 shareholders meeting. To allow the Company the highest possible degree of flexibility and to maintain the financing flexibility of the Company over the long term, a proposal is made to again authorize the Management Board to issue convertible bonds and/or warrant-linked bonds. To settle the warrant and conversion rights arising from these bonds, the proposal is made to repurpose the Conditional Capital 2011, to adopt an additional Conditional Capital to serve the convertible bonds and/or warrant-linked bonds, and to amend the Company's Articles of Association accordingly. The Management Board and the Supervisory Board therefore propose adoption of the following resolutions: (a) Authorization of the Management Board to issue convertible bonds and/or warrant-linked bonds (and/or combinations of these instruments) (i) Basic authorization, term of authorization, nominal value, number of shares, currency, consideration The Management Board is authorized until May 6, 2020, to issue, with approval by the Supervisory Board, bearer convertible bonds and/or bearer warrant-linked bonds (and/or combinations of these instruments) (collectively referred to as Bonds ) with or without definite maturities in an aggregate nominal amount of up to EUR 14,000,000, and to grant existing bond holders conversion and/or warrant rights to acquire no-par value - 16 -