provisions in the articles of association regarding profit appropriation
Article 29 Profit and contributions
29.1 Profit distributions can only be made to the extent the company’s equity exceeds the amount of the paid-up and called-up part of the capital plus the reserves that are to be maintained pursuant to the law or these Articles of Association.
29.2 The first distribution on the preference shares to be made from the profit as shown in the profit and loss account for the most recently ended financial year shall be, where possible, the percentage referred to below of the amount that was mandatorily paid on those shares.
The percentage referred to above shall be equal to the average of the base refinancing rate of the European Central Bank – weighted according to the number of days this interest rate applied – during the financial year or part of the financial year for which the distribution is made, plus an allowance set by the Executive Board and approved by the Supervisory Board in the amount of at least one and a half (1.5) percentage points and with a maximum of four (4) percentage points, depending on the situation at such time. If, in the financial year in which the distribution referred to above is made, the amount mandatorily paid up on the Preference Shares is reduced or, pursuant to a resolution for an additional payment, is increased, the distribution shall be reduced or, if possible, raised, respectively, by an amount equal to said percentage of the amount of the reduction or increase, respectively, calculated as from the time the additional payment became mandatory.
29.3 If and to the extent that the profit is insufficient to make the distribution referred to in Article 29.2 above, the deficit shall be distributed and charged to the reserves, to the extent this does not involve any actions contrary to the provisions of article 29.1.
If and to the extent such a distribution cannot be charged to the reserves, such a distribution shall first be made to the holders of preference shares from the profits earned in subsequent years that the deficit is fully cleared, before the provisions of the next paragraphs of this article 29 can be applied.
29.4 If the profit of a financial year is determined and one or more preference shares were redeemed in that financial year, the parties that were holders of preference shares as shown in the register of holders of preference shares referred to in article 5.2 at the time of said redemption shall have an inalienable right to profit distribution as described below. The profit that is distributed to said holder(s) if possible shall be equal to the amount of the distribution, to which he would be entitled pursuant to the right determined above in this article 29, if he had been a holder of the preference shares referred to above at the time the profit was determined, to be calculated time-proportionately for the period that he was a holder of these preference shares in said financial year, which distribution shall be reduced by the amount of the distribution that was made in accordance with the provisions of article 29.10.
If, in the course of any financial year, preference shares were issued, the dividend on the relevant preference shares for that financial year shall be reduced proportionately until the relevant day of issue.
29.5 No distributions shall be made on the preference shares other than as provided for in this article 29 and in article 37.
29.6 Subject to the approval of the Supervisory Board, the Executive Board shall determine what part of the profit remaining after application of the provisions of the preceding paragraphs of this article 29 is to be reserved.
29.7 The remaining profit shall be at the disposal of the General Meeting of Shareholders.
29.8 Provided that an interim statement of assets and liabilities signed by the Executive Board evidences that the requirement referred to in article 29.1 concerning the capital position has been satisfied, the Executive Board may make one or more interim distributions to the holders of ordinary shares and/or the holders of preference shares with the approval of the Supervisory Board, with due observance, however, of the maximum referred to in articles 29.2, 29.3 and 29.4.
29.9 Subject to the approval of the Supervisory Board, the Executive Board is authorised to determine that a distribution on ordinary shares will not be made in cash but in the form of ordinary shares, or to determine that holders of ordinary shares may choose to accept the distribution in cash and/or in the form of ordinary shares, all this from the profit and/or from a reserve and all this to the extent the Executive Board has been designated by the General Meeting in accordance with articles 7.1 and 7.3. Subject to the approval of the Supervisory Board, the Executive Board shall set the conditions under which such a choice may be made.
29.10 In the event that preference shares are redeemed, a distribution shall be made on the cancelled preference shares on the day of redemption, which distribution shall be calculated as much as possible in accordance with the provisions of articles 29.2, 29.3 and 29.4, on the period for which no distribution referred to in article 29.2, first sentence, has yet been made until the day of redemption, all this provided that the requirement in article 29.1 has been satisfied, which must be evidenced by an (interim) statement of assets and liabilities drawn up in accordance with the provisions prescribed by law.
Article 30 Release for payment. Entitlement
30.1 Dividends and other distributions shall be made payable within four weeks after adoption, unless the General Meeting determines another date at the proposal of the Executive Board. Different payment release dates may be designated for the ordinary shares and the preference shares.
30.2 A deficit may only be offset against the reserves prescribed by law to the extent this is permitted by law.