The Board of Directors was authorized by the AGM on January 28, 2008, with the consent of the Supervisory Board, once or several times up to January 27, 2013,
- to issue bearer participatory certificates (i) to which bearer participatory certificates with warrants are attached or (ii) that are attached to a conversion right for the holder for a maximum term of 20 years as of their issue, and to grant option rights to the holders of participatory certificates with warrants and conversion rights to the holders of convertible participatory certificates to bearer shares in the Company, as detailed by the conditions of the participatory certificates with warrants or convertible participatory certificates
and instead of or in addition
- to issue bearer bonds with warrants and/or bearer convertible bonds and/or bearer income bonds (hereinafter referred to jointly as “bonds with warrants and/or convertible bonds”) with a maximum term of 20 years and to grant option rights to the holders of bonds with warrants and conversion rights to the holders of convertible bonds to bearer shares in the Company, as detailed by the conditions of the bonds with warrants or convertible bonds.
The aggregate principle amount of the participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds to be issued under this authorization shall not exceed €500,000,000.00. Option rights or conversion rights shall only be issued for Company shares that account for a maximum total of €10,000,000.00 of the share capital.
The participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds can also be issued in the legal currency of an OECD country – limited to the corresponding value in euros – in addition to in euros. They can also be issued by a dependent Group company of the Company within the meaning of Section 17 German Stock Corporation Act (AktG); in this case, the Board of Directors is authorized, with the consent of the Supervisory Board, to give a guarantee for participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds on behalf of the Company, and to grant option rights or conversion rights to bearer shares in the Company to holders of participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds. The bonds with warrants and/or convertible bonds can also be issued in exchange for contributions in kind or the granting of rights.
The participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds shall be offered for subscription to the shareholders. They can also be assumed by a bank or a consortium of banks, linked to the obligation to offer them for subscription to the shareholders. Companies operating in accordance with Section 53 (1) Sentence 1 or Section 53b (1) Sentence 1 or (7) of the German Banking Law (KWG) are equivalent to banks. If participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds are issued by dependent Group companies of the Company within the meaning of Section 17 German Stock Corporation Act (AktG), the Company shall ensure that shareholders of the Company are granted the statutory subscription right in accordance with the above sentences. The Board of Directors is authorized, with the consent of the Supervisory Board,
- to exclude fractions from the subscription right of shareholders and also to exclude the subscription right insofar as this is necessary so that holders of previously issued option or conversion rights can be granted a subscription right to new participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds to the extent to which they would be entitled after exercising the option or conversion rights as shareholders;
- to exclude the subscription right of shareholders for all participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds with an option or conversion right or an option or conversion obligation to shares, if the issue price of the participatory certificates with warrants and/or convertible participatory certificates and/or convertible bonds and/or bonds with warrants is not significantly below the theoretical market value of the participatory certificates and/or bonds as determined by acknowledged mathematical methods used in finance; in this case, conversion and/or option rights to shares of up to 10% of the share capital only shall be granted on the participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds issued with the exclusion of the subscription right of shareholders; in calculating the above maximum amount, allowance shall be made for all shares that are issued on the basis of other existing authorizations or authorizations adopted by this AGM to issue shares in the Company with the exclusion of the subscription right pursuant to, or in application mutatis mutandis, of Section 186 (3) Sentence 4 German Stock Corporation Act (AktG);
- to exclude the subscription right of shareholders if and insofar as the participatory certificates with warrants and/or convertible participatory certificates and/or convertible bonds and/or bonds with warrants are issued in exchange for contributions in kind to acquire companies, parts of companies or equity interests (including an increase in the stake) or for carrying out a merger.
The above authorizations to decide on exclusion of the subscription right of shareholders shall be granted independently of each other.
Conversion and/or option rights to shares up to a total of 20% of the share capital only shall be granted on the participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds issued on the basis of one of the above authorizations with exclusion of the subscription right of shareholders; in calculating the above maximum amount, allowance shall be made for all shares that are issued on the basis of other existing authorizations or authorizations adopted by this AGM to issue shares in the Company with the exclusion of the subscription right pursuant to, or in application mutatis mutandis, of Section 186 (3) German Stock Corporation Act (AktG).
Moreover, the above authorizations to decide on excluding the subscription right of shareholders shall not affect the authorization to issue the participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds with granting of a subscription right to shareholders or to a bank or a consortium of banks, linked to the obligation to offer them for subscription to shareholders.
If participatory certificates with warrants and/or bonds with warrants are issued, each participatory certificate or each bond shall have attached one or more warrants that authorize the holder to subscribe to bearer shares in the Company as detailed by the option conditions to be defined by the Board of Directors. For participatory certificates with warrants and/or bonds with warrants denominated in euros and issued by the Company or by dependent Group companies of the Company within the meaning of Section 17 German Stock Corporation Act (AktG), the option conditions can stipulate that the option price may also be settled by the transfer of participatory certificates or bonds and, if applicable, an additional cash payment. In this case, the pro-rate amount of the share capital for shares to be subscribed to for each participatory certificate or bond shall not exceed the principal amount of the participatory certificate with warrants or bond with warrants. The price at which the shares are acquired shall correspond to at least 90% of the arithmetical mean of the closing prices of shares in the Company in Xetra trading (or a comparable successor) on the last five days of stock market trading before the resolution by the Board of Directors on defining the option price. If there are fractions of new shares, it is possible to stipulate that these factions can be added up in accordance with the option conditions, if applicable with an additional cash payment, so that full shares can be acquired.
If convertible participatory certificates and/or convertible bonds are issued, the holders shall obtain the non-retractable right to convert the participatory certificates or bonds into bearer shares in the Company in accordance with the conversion conditions to be defined by the Board of Directors. The conversion ratio shall be derived by dividing the principal amount or the issue amount below the principal amount of a participatory certificate or bond by the set conversion price for a share in the Company and can be rounded up or down to a full number; in addition, an additional cash payment and pooling of or compensation for fractions that cannot be converted can be defined. The conversion price shall correspond to at least 90% of the arithmetical mean of the closing prices of shares in the Company in Xetra trading (or a comparable successor) on the last five days of stock market trading before the resolution by the Board of Directors on defining the conversion price.
Notwithstanding Section 9 (1) German Stock Corporation Act (AktG), the option or conversion price can be reduced pursuant to a dilution protection clause as detailed in the conditions for the participatory certificates with warrants and/or convertible participatory certificates or the conditions for the convertible bonds or bonds with warrants if, during the option of conversion period, the Company increases the share capital and grants an exclusive subscription right to its shareholders, or by means of a capital increase from Company funds or issues further participatory certificates with warrants or convertible participatory certificates or bonds with warrants or convertible bonds or grants or guarantees option or conversion rights or obligations and the holders of existing option or conversion rights or obligations are not granted thereto any subscription right as they would be entitled to after exercising the option or conversion right or fulfilling the option or conversion obligation. Reduction of the option or conversion price can also be effected by a cash payment when the option or conversion right is exercised or when the option or conversion obligation is fulfilled, or by reducing the additional payment. The conditions of the option rights or obligations or participatory certificates with warrants or convertible participatory certificates or bonds with warrants or convertible bonds can also stipulate adjustment of the option or conversion rights or option or conversion obligations in the event of a capital reduction, restructuring, extremely high dividends, a third party gaining control of the Company or comparable measures. In all these cases, the adjustment shall be made in conformity to Section 216 (3) German Stock Corporation Act (AktG) so that the economic value of the conversion or option rights or obligations following the adjustment essentially corresponds to the economic value of the conversion or option rights or obligations directly before the measures that initiated the adjustment. If a third party gains control of the Company, adjustment of the option or conversion price in line with market practice can be provided for.
The bond or option conditions can stipulate that the Company has the right not to grant new shares when the conversion or option right is exercised or the conversion or option obligation is fulfilled, but to pay a cash amount for the number of shares that would otherwise have to be provided that corresponds to the mean closing price of shares in the Company, not weighted by volume, in Xetra trading on the Frankfurt Stock Exchange (or a comparable successor) over the last ten days of stock market trading before notice of exercise of the conversion or option right or fulfillment of the conversion or option obligation is given. The conditions for participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds can also stipulate that the participatory certificates with warrants and/or convertible participatory certificates or bonds with warrants or convertible bonds can, at the discretion of the Company, be converted to existing shares instead of new shares of the Company from Conditional Capital or that the option right or option obligation can be fulfilled by providing such shares.
The conditions for participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds may also provide for a conversion or option obligation at the end of the term or at another time or give the Company the right, upon final maturity of the participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds, to grant the participatory certificate and/or bond creditors shares in the Company in full or in part instead of payment of the due cash amount. In the latter case, the option or conversion price can correspond to the mean price of the Company’s shares, not weighted by volume, in the closing auction in electronic trading on the Frankfurt Stock Exchange over the last five days of stock market trading before the final maturity date, as detailed by the conditions for participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds. Section 9 (1) in conjunction with Section 199 (2) German Stock Corporation Act (AktG) shall be observed.
The interest on the participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds may be variable. In addition, it can be dependent on key profit ratios of the Company and/or the Group (including the net income or the dividend for Company shares set by the resolution on appropriation of the net income). In this case, the participatory certificates and/or bonds must not be assigned a conversion and/or option right. Moreover, a subsequent payment for benefits/payments not provided in previous years can be specified.
The Board of Directors was authorized, with the consent of the Supervisory Board, to define the further details of the issue and rights of the participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds, in particular the rate of interest, issue price, term and denomination, the option or conversion period and the option and conversion price or in agreement with the boards of the associated company of the Company that issues the participatory certificates with warrants and/or convertible participatory certificates and/or bonds with warrants and/or convertible bonds.
With regard to the issue price of shares resulting from contingent share capital, the authorization specifies the principles applying to the determination of the minimum issue price in respect of new shares. The amendment of Section 193 (2) No. 3 of the German Stock Corporation Act (Aktiengesetz – AktG) within the framework of the Act Implementing the Shareholder Rights Directive clarified that the act of determining a minimum issue price or specifying the principles for the determination of a minimum issue price upon issuance of new shares from contingent share capital for the purpose of servicing conversion and option rights for loan instruments shall be sufficient, as previously confirmed by the Federal Court of Justice in its judgment dated May 18, 2009.
