The following information comprises disclosures pursuant to section 315 (4) of the German Commercial Code (HGB) and the explanatory report pursuant to section 176 (1) sentence 1 of the German Stock Corporation Act (AktG).
As of the balance sheet date, the company’s subscribed capital is divided into 64,621,125 no-par value bearer shares plus one registered share. Each share therefore corresponds to € 2.60 of the share capital. The holder of the registered share is E. Merck Beteiligungen KG. It is entitled and obliged to appoint one-third of the members of the Supervisory Board representing the limited liability shareholders. If the holder of the registered share is a general partner, he or she has no such right of appointment. The transfer of the registered share requires the company’s approval. The approval is granted at the sole discretion of the personally liable general partner with an equity interest, namely E. Merck KG.
According to the Articles of Association of Merck, the general partners not holding an equity interest who form the Executive Board are admitted by E. Merck KG with the consent of a simple majority of the other general partners. A person may only be a general partner not holding an equity interest if he or she is also a general partner of E. Merck KG. In addition, at the proposal of E. Merck KG and with the approval of all general partners not holding an equity interest, further persons who are not general partners not holding an equity interest may be appointed to the Executive Board.
The Articles of Association can be amended by a resolution of the General Meeting that requires the approval of the general partners. The resolutions of the General Meeting are, notwithstanding any mandatory statutory provisions to the contrary, adopted by a simple majority of the votes cast. Where the law requires a capital majority in addition to the voting majority, resolutions are adopted by a simple majority of the share capital represented in the vote. The Articles of Association specify the authorized share capital. The Executive Board is authorized, with the approval of the Supervisory Board and of E. Merck KG, to increase the share capital on one or several occasions until April 3, 2014 by up to a total of € 56,521,124.19 by issuing new shares against cash or contributions in kind. If the authorized capital is utilized, the Executive Board is authorized, with the approval of the Supervisory Board, to exclude shareholders’ subscription rights in the case of a capital increase of up to 10% of the share capital by issuing new shares against cash contributions if the issue price of the new shares is not materially lower than the market price. In addition, with the approval of the Supervisory Board, the shareholders’ subscription rights can be excluded in order to enable E. Merck KG to exercise its right pursuant to Article 32 (3) of the Articles of Association to participate in a capital increase by issuing shares or freely transferable share subscription rights. Lastly, with the approval of the Supervisory Board, the subscription rights can also be excluded in order to enable E. Merck KG to exercise its right pursuant to Article 33 of the Articles of Association to convert its equity interest into share capital. The Articles of Association also encompass contingent capital. Accordingly, the share capital is contingently increased by up to € 66,406,298.40 divided into 25,540,884 shares. The contingent capital increase serves to grant exchange rights to E. Merck KG in accordance with Article 33 of the Articles of Association to enable it to convert its equity interest into shares. The company is not authorized to acquire its own shares.
The company has not entered into any material agreements subject to a change of control pursuant to a takeover offer nor has it concluded any compensation agreements with the members of the Executive Board or employees in the event of a takeover offer.