Declaration by the Board of Management and the Supervisory Board of Energiekontor AG on the recommendations of the "Government Commission on the German Corporate Governance Code" pursuant to Section 161 of the German Stock Corporation Act (AktG).
1. Since the last declaration of conformity in March 2020, Energiekontor AG has complied with the recommendations of the "Government Commission on the German Corporate Governance Code" in accordance with the then applicable version of the German Corporate Governance Code dated 7 February 2017, with the exceptions to sections 3.8 Abs. 3, 4.1.5, 5.1.2, 5.4.1 and 7.1.2:
2. Energiekontor AG will comply with the recommendations of the "Government Commission on the German Corporate Governance Code" in the version dated 16 December 2019 with the exceptions listed below:
Section A.1 When filling management positions, the Executive Board shall be guided by the requirements of the relevant function and shall look for the best possible person who meets these requirements. If several equally qualified female or male candidates are available, the executive board shall pay attention to diversity and an appropriate consideration of women in the Company when making appointments, without making these criteria a primary principle.
Section B.1 The Supervisory Board bases its appointments to the Executive Board on suitability and qualifications and seeks the best possible appointments to Executive Board positions. Furthermore, the Supervisory Board considers it appropriate not to make the selection of Executive Board members dependent on criteria such as individual orientation or gender, but rather solely on their personality and expertise. In the opinion of the Company, the special weighting of further criteria prescribed by the Code would limit the selection of possible female or male candidates for the Executive Board.
Section C.1 The recommendations in C.1 were not complied with. Suitability, experience and qualifications are also the decisive selection criteria for appointments to the Supervisory Board. Being bound by specifications regarding future appointments restricts flexibility without any other advantages for the Company. This applies all the more as the Supervisory Board consists of only three members.
Section C.7 The current Supervisory Board consists of three persons. Two members are the founders of the Company. In order to comply with the recommendation of the GCGC, the supervisory board would have to be expanded to at least 5 persons. This is not considered appropriate.
Section C87 In the opinion of the Supervisory Board, no conclusion can be drawn from the length of membership of the Supervisory Board as to the independence of the respective member and, furthermore, there have been no indications to date of a lack of independence on the part of Dr Bodo Wilkens or Mr Günter Lammers.
Section C.10 The Company's Supervisory Board consists of three members. Committees cannot be sensibly formed and are not necessary from the point of view of the Supervisory Board. The Chairman of the Supervisory Board, Dr Bodo Wilkens, has been a member of the Supervisory Board of Energiekontor AG for more than 12 years, but is considered independent of the Company with reference to recommendation C.8.
Section D2-5 and D.11 The Company's Supervisory Board consists of three members. Committees cannot reasonably be formed and are not necessary from the Supervisory Board's point of view. The formation of an audit committee and a nomination committee would not result in an efficient division of labour within the Supervisory Board, as the relevant complexes of topics and issues are discussed in plenary sessions. The circumstances of the Company do not require the formation of other committees.
Section G1 A remuneration system following the recommendations of G.1 has not yet been decided. The Supervisory Board will decide on such a remuneration system in good time before the invitation to the Annual General Meeting in 2021 and present it to the shareholders for approval at the Annual General Meeting following 31 December 2020 in accordance with the transitional provision of § 26j of the Introductory Act to the German Stock Corporation Act. After approval of the remuneration system by the Annual General Meeting on 20 May 2021, the Declaration of Conformity will be updated accordingly.
Section G2 The remuneration system to be determined in accordance with recommendation G.1 has not yet been resolved. Following the resolution of the Annual General Meeting on the new remuneration system, the Supervisory Board intends to take recommendation G.2 into account when concluding new Executive Board contracts.
Section G10 Recommendation G.10 was newly introduced. Recommendation G.10 is not complied with. The Supervisory Board intends to take into account the recommendation of a partial share-based variable remuneration when concluding new Executive Board contracts, if appropriate in the individual case.
Section G11 Recommendation G.11 was newly introduced. Recommendation G.11 is not complied with. As a matter of principle, variable performance-based remuneration is only paid out if agreed targets have been achieved. A clawback of variable remuneration is therefore not applicable due to the achievement of targets.
Section G13 Recommendation G.13 was newly introduced. Recommendation G.13 is currently not complied with. The Supervisory Board intends to take recommendation G.13 into account when concluding new Executive Board contracts.
Bremen, March 2021
For the Management Board
Chairman of the Management Board
For the Supervisory Board
Dr. Bodo Wilkens
Chairman of the Supervisory Board