I. Agenda Item 10

10. Adoption of a resolution regarding the creation of new authorized capital (also with the option to disapply subscription rights) by amending Article 4 (Capital Stock) Para. 4 of the Articles of Association

The authorization of the Board of Management granted by the Annual Stockholders’ Meeting on May 26, 2017, to increase the capital stock by up to EUR 9,152,293 (Authorized Capital III) expired on May 25, 2022. The Annual Stockholders’ Meeting shall therefore resolve upon new authorized capital as Authorized Capital II. The volume shall again amount to 10% of the capital stock. However, the term shall be only two years instead of the previous five. Moreover, the new Authorized Capital II shall allow only cash contributions.

Under agenda item 9, Authorized Capital I, which will expire on May 14, 2023, shall also be renewed with a volume of 20% of the current capital stock, so that the company continues to have available authorized capital with a total volume of 30% of the capital stock. Under agenda item 11, a resolution shall also be adopted on the authorization to issue convertible and/or warrant bonds and/or income bonds (or combinations of these instruments) (collectively referred to as “bonds”) plus conditional capital with a volume of up to 10% of the company’s capital stock.

The sum of all new shares issued with subscription rights disapplied in accordance with the new Approved Capital I and II and the new shares issued to service bonds issued with subscription rights disapplied in accordance with the authorization proposed under agenda item 11 may not exceed a total of 10% of the company’s current capital stock.

The Board of Management and the Supervisory Board therefore propose that the following resolution shall be adopted:

For the creation of a new Authorized Capital II of up to EUR 8,634,630 with the option to dis-apply stockholders’ subscription rights, Article 4 Para. 4 of the Articles of Association is revised as follows:

“(4) The Board of Management is authorized, with the approval of the Supervisory Board, to increase the capital stock on one or more occasions until May 23, 2025, by issuing new no-par bearer shares against cash contributions up to a total amount of EUR 8,634,630 (Authorized Capital II). 

In general, stockholders must be granted subscription rights. The subscription rights can also be granted by way of the new shares being acquired by one or more credit institutions or equivalent entities in accordance with Section 186 Para. 5 Sentence 1 AktG with the obligation to offer them to the stockholders of the company for subscription (indirect subscription right). However, the Board of Management is authorized, with the ap-proval of the Supervisory Board, to disapply stockholders’ subscription rights in the following cases: 

a) to eliminate fractional amounts in the event of capital increases; 

b) if the issue price of the new no-par bearer shares is not significantly lower than the stock market price at the time the issue price is definitively fixed, which time should be as close as possible to the placement of the no-par bearer shares (simplified disapplication of subscription rights in accordance with Section 186 Para. 3 Sentence 4 AktG). The shares issued with subscription rights disapplied in accordance with Section 186 Para 3 Sentence 4 AktG may not exceed 10% of the capital stock existing at the time when the resolution is passed by the Annual Stockholders’ Meeting or – if lower – when the resolution regarding the utilization of authorized capital is passed. This upper limit of 10% of capital stock is reduced by the pro rata amount of the capital stock attributable to the shares issued or sold during the term of this authorization with subscription rights disapplied in direct or analogous application of Section 186 Para. 3 Sentence 4 AktG. Furthermore, this limit is decreased by shares that have been or will be issued in order to satisfy warrants or conversion rights or obligations, if the warrants or conversion rights or obligations were granted or imposed with subscription rights disapplied in accordance with Section 186 Para. 3 Sentence 4 AktG during the term of this authorization.

The Board of Management is also authorized to determine the further details of the capital increase and its implementation with the Supervisory Board’s approval.

Shares issued on the basis of this authorization with stockholders’ subscription rights disapplied may not, (i) together with shares issued by the company during the term of this authorization on the basis of other authorizations with subscription rights disapplied or (ii) together with shares issued or to be issued to service warrants or conversion rights or obligations, provided the warrants or conversion rights or obligations were granted or imposed during the term of this authorization with subscription rights disapplied, exceed 10% of the capital stock at the time this authorization becomes effective. Shares issued with subscription rights disapplied to eliminate fractional amounts in the event of capital increases are not counted toward the aforementioned limit.”

Please refer to the reports of the Board of Management to the Annual Stockholders’ Meeting on this agenda item 10 and on agenda items 9 and 11, which are reproduced in the annex to this agenda. The amendments of the Articles of Association proposed by the Board of Management and the Supervisory Board are also presented in the synopsis (Amendments of Articles of Association – Annual Stockholders’ Meeting 2023), which is made available together with the notice convening the Annual Stockholders’ Meeting on the company’s website.