Full Press Release Details
Invitation to the Annual General Meeting
Fresenius Medical Care AG & Co. KGaA
ISIN: DE0005785802 // Securities Identification No.: 578580
ISIN: DE000A254VN2 // Securities Identification No.: A254VN
ISIN: US3580291066 // CUSIP: 358029106
We hereby invite our shareholders to the
Annual General Meeting
to be held on Thursday, 27 August 2020, at 10:00 hours Central European Summer Time (CEST).
Against the background of the spread of the coronavirus SARS-CoV-2, the Annual General Meeting will be held as a virtual General Meeting without the physical presence of shareholders or their proxies.
1. Presentation of the annual financial statements and consolidated group financial statements each approved by the Supervisory Board, the management reports for Fresenius Medical Care AG & Co. KGaA and the consolidated group, the explanatory report by the General Partner on the information pursuant to sections 289a, 315a of the German Commercial Code (Handelsgesetzbuch HGB) and the report by the Supervisory Board of Fresenius Medical Care AG & Co. KGaA for fiscal year 2019; resolution on the approval of the annual financial statements of Fresenius Medical Care AG & Co. KGaA for fiscal year 2019
The Supervisory Board approved the annual financial statements and the consolidated group financial statements drawn up by the General Partner according to section 171 German Stock Corporation Act (Aktiengesetz AktG). According to section 286 (1) AktG, the
annual financial statements are to be submitted for approval by the General Meeting; otherwise, the aforementioned documents are to be made available to the General Meeting without requiring a further resolution in this regard.
The General Partner and the Supervisory Board propose that the annual financial statements of Fresenius Medical Care AG & Co. KGaA for fiscal year 2019 as presented, showing a profit of EUR 3,396,526,947.19, be approved.
2. Resolution on the allocation of distributable profit
The General Partner and the Supervisory Board propose to allocate the distributable profit shown in the annual financial statements in the amount of EUR 3,396,526,947.19 for fiscal year 2019 as follows:
| Payment of a dividend of EUR 1.20 for each of the | ||
| 292,641,774 shares entitled to a dividend | EUR | 351,170,128.80 |
| Profit carried forward to new account | EUR | 3,045,356,818.39 |
| Distributable profit | EUR | 3,396,526,947.19 |
The proposal on the allocation of distributable profit reflects the 11,795,102 treasury shares that are held by the Company at the time of the convening of the General Meeting and that are not entitled to a dividend pursuant to section 71b AktG. If the number of shares entitled to a dividend for fiscal year 2019 changes until the General Meeting, the General Meeting will be presented with a proposal that will be adjusted accordingly, with an unchanged dividend of EUR 1.20 for each share entitled to a dividend as well as accordingly amended amounts for the dividend sum and the profit carried forward to new account.
The dividend is due on 1 September 2020.
3. Resolution on the approval of the actions of the General Partner for fiscal year 2019
The General Partner and the Supervisory Board propose the approval of the actions of the General Partner of the Company for fiscal year 2019.
4. Resolution on the approval of the actions of the Supervisory Board for fiscal year 2019
The General Partner and the Supervisory Board propose the approval of the actions of the members of the Supervisory Board of the Company for fiscal year 2019.
5. Election of the auditor and consolidated group auditor for fiscal year 2020 as well as the auditor for the potential review of interim financial information
The Supervisory Board based on the recommendation of its Audit and Corporate Governance Committee (Pr fungs- und Corporate-Governance-Ausschuss) proposes the election of PricewaterhouseCoopers GmbH Wirtschaftspr fungsgesellschaft, Frankfurt am Main,
as auditor and consolidated group auditor for fiscal year 2020,
as auditor for the potential review of interim financial information for fiscal year 2020 prepared after the Annual General Meeting 2020, and
as auditor for the potential review of interim financial information for fiscal year 2021 prepared prior to the Annual General Meeting 2021.
The Audit and Corporate Governance Committee of the Supervisory Board has carried out a selection procedure in accordance with Article 16 of the EU Statutory Audit Regulation (Regulation (EU) No. 537/2014). On the basis of this selection procedure, the Audit and Corporate Governance Committee recommended that the Supervisory Board propose to the General Meeting either PricewaterhouseCoopers GmbH Wirtschaftspr fungsgesellschaft, Frankfurt am Main, or Ernst & Young GmbH Wirtschaftspr fungsgesellschaft, Eschborn, for election. The Audit and Corporate Governance Committee indicated that it prefers PricewaterhouseCoopers GmbH Wirtschaftspr fungsgesellschaft, Frankfurt am Main.
The Audit and Corporate Governance Committee stated that its recommendation is free from undue influence by a third party and that no clause restricting the choice in the meaning of Article 16 (6) of the EU Statutory Audit Regulation (Regulation (EU) No. 537/2014) has been imposed upon it.
6. Resolution on the approval of the compensation system for the members of the Management Board of the General Partner
The German Act Implementing the Second Shareholder Rights Directive (ARUG II) has supplemented the German Stock Corporation Act by, inter alia, the provision of section 120a AktG. Section 120a (1) AktG provides that the General Meeting of listed companies must resolve on the approval of the compensation system for the members of the Management Board, as presented by the Supervisory Board, in each case of a material change, but at least every four years. In accordance with the statutory transitional provisions, the first resolution on the compensation system must be adopted in the Annual General Meeting 2021 at the latest.
The compensation system for the members of the Management Board of the General Partner is intended to be amended with effect as from 1 January 2020 (Compensation System 2020+). Against this background and for the purpose of early shareholder participation, a resolution on the approval of the compensation system, as presented by the Supervisory Board, shall already be passed at the Annual General Meeting 2020.
The Compensation System 2020+ is part of this notice on the convening of the Annual General Meeting and is published and described in detail subsequent to the agenda in Section II.
The Supervisory Board proposes to approve the compensation system for the members of the Management Board of the General Partner (Compensation System 2020+) as submitted to the General Meeting and published in Section II.
7. Resolution on the remuneration of the members of the Supervisory Board and on the amendment of Article 13 and Article 13e (3) of the Articles of Association
The German Act Implementing the Second Shareholder Rights Directive (ARUG II) also led to an amendment of section 113 (3) AktG. Pursuant to Section 113 (3) sentences 1 and 2 AktG as amended by the ARUG II, the General Meeting of listed companies must resolve on the remuneration of Supervisory Board members at least every four years, with a resolution confirming the remuneration being permissible. A corresponding resolution on the remuneration of the Supervisory Board members must be passed at the Annual General Meeting 2021 at the latest. In order to ensure that a corresponding resolution is adopted by the General Meeting as early as possible and in parallel with the compensation system for the members of the Management Board of the General Partner, the resolution of the General Meeting on the remuneration of the members of the Supervisory Board shall already be passed at the Annual General Meeting 2020.
The remuneration of the members of the Supervisory Board shall be amended with effect as from 1 January 2021. Until that date, the existing remuneration regulation shall remain unchanged.
Article 13 of the Company s Articles of Association so far provides that in addition to fixed remuneration components the members of the Supervisory Board receive a variable remuneration which is determined on the basis of the respective average growth rate of the earnings per share of the Company over a three-year period. In accordance with the corresponding suggestion of the revised German Corporate Governance Code (DCGK) in the version of 16 December 2019, the predominant practice of large listed companies in Germany and the recommendations of voting rights advisors, this variable remuneration component shall be abolished as from 1 January 2021 by a corresponding amendment of Article 13 of the Company s Articles of Association and, in return, an increase in the fixed remuneration as well as an appropriate adjustment of the remuneration for serving on a committee shall be introduced. Serving in the Nomination Committee shall also be remunerated. Otherwise, the remuneration for the members of the Supervisory Board shall remain unchanged, and Article 13 of the Company s Articles of Association shall only be revised editorially. Article 13e (3) of the Company s Articles of Association is to be editorially adjusted to the amendment of Article 13 of the Articles of Association.
The remuneration of the members of the Supervisory Board and the proposed changes are published and described in detail subsequent to the agenda in Section III.
The General Partner and the Supervisory Board propose to resolve as follows:
a) The current remuneration of the members of the Supervisory Board as provided for in Article 13 of the Company s Articles of Association and as described under Section III. is confirmed.
b) The remuneration of the members of the Supervisory Board effective as from 1 January 2021 and as described in Section III. is approved, and Article 13 and Article 13e (3) of the Company s Articles of Association are revised as follows:
aa) Article 13 of the Company s Articles of Association is revised as follows:
Art. 13 Remuneration of Supervisory Board Members
(1) The members of the supervisory board shall be reimbursed for the expenses incurred in the exercise of their office, including any statutory value-added tax owed by them.
(2) Each member of the supervisory board shall receive a fixed fee of USD 160,000.00 per annum for each full fiscal year, payable in four equal installments at the end of each calendar quarter.
(3) The chairman of the supervisory board shall receive additional remuneration in the amount of USD 160,000.00 and his deputy additional remuneration in the amount of USD 80,000.00.
(4) As a member of a committee, a supervisory board member shall receive an additional amount of USD 40,000.00 per year. As chairman of a committee, a member of the committee shall in addition receive USD 40,000.00 per year and as deputy chairman an additional USD 20,000.00 respectively, payable in each case in four equal installments at the end of each calendar quarter. For membership in the Joint Committee (Articles 13a et seqq.) as well as in the capacity of the chairman and deputy chairman of this committee, no separate remuneration shall be granted. Article 13e (3) shall remain unaffected.
(5) In the event that the general meeting, taking into consideration the respective relevant annual results, resolves a higher remuneration by a three fourths majority of the votes cast, such higher remuneration shall be payable.
(6) If a fiscal year is not a complete calendar year, the remuneration relating to a full fiscal year shall be paid on a pro rata temporis basis.
(7) To the extent that a member of the supervisory board is at the same time a member of the supervisory board of the General Partner Fresenius Medical Care Management AG and receives remuneration for his services as a member of the supervisory board of Fresenius Medical Care Management AG, the remuneration according to Article 13 (2) will be reduced to half. The same shall apply in relation to additional remuneration of the chairman and his deputy according to Article 13 (3) if such person is, at the same time, the chairman or deputy chairman, respectively, of the supervisory board of Fresenius Medical Care Management AG. If the deputy chairman of the supervisory board of the Company is at the same time chairman of the supervisory board of Fresenius Medical Care Management AG, he shall not receive additional remuneration according to Article 13 (3) for his services as deputy chairman of the supervisory board of the Company.
(8) To the extent that a member of a committee is at the same time a member of a supervisory board committee of Fresenius Medical Care Management AG and receives remuneration for his services as a member of such supervisory board committee, this remuneration will be set off against the respective amount of remuneration received pursuant to Article 13 (4) if the committees in both companies have the same type of functions and competences; apart from that, no further set-off or adjustment shall take place.
(9) The Company shall pay the remuneration of the supervisory board members subject to statutory deductions.
(10) The Company shall provide the members of the supervisory board with an insurance protection regarding the fulfillment of their duties as such members of the supervisory board which is subject to an appropriate deductible.
bb) Article 13e (3) sentence 2 of the Company s Articles of Association is revised as follows:
Article 13 (1), (9), and (10) of the Articles of Association shall be applied accordingly.
Otherwise, Article 13e of the Company s Articles of Association shall remain unchanged.
cc) The General Partner is instructed to apply for the registration of the resolved amendments to the Articles of Association in the commercial register no earlier than 1 January 2021.
8. Resolution on the cancellation of the existing authorized capitals, on the creation of new authorized capitals including the possibility of the exclusion of subscription rights as well as on corresponding amendments to Article 4 (3) and (4) of the Articles of Association of the Company
The General Partner was authorized pursuant to Article 4 (3) of the Articles of Association to increase the share capital of the Company with the approval of the Supervisory Board by up to EUR 35,000,000.00 by issuing new bearer ordinary shares for cash on one or more occasions (Authorized Capital 2015/I). The General Partner was further authorized pursuant to Article 4 (4) of the Articles of Association to increase the share capital of the Company with the approval of the Supervisory Board by up to EUR 25,000,000.00 by issuing new bearer ordinary shares for cash and/or contributions in kind on one or more occasions (Authorized Capital 2015/II). These authorizations have each expired on 18 May 2020. The authorizations have not been used. The creation of new authorized capitals is proposed hereinafter in order to continue to enable the Company to increase the share capital in a flexible manner and without further resolution of the General Meeting. The amounts of these new authorized capitals shall be identical to the existing authorized capitals.
The General Partner and the Supervisory Board propose to resolve as follows:
a) The Authorized Capital 2015/I in Article 4 (3) of the Articles of Associations shall be canceled by annulling Article 4 (3) of the Articles of Associations in its current form.
b) The General Partner shall be authorized until 26 August 2025 to increase the share capital of the Company with the approval of the Supervisory Board by up to a total of EUR 35,000,000.00 (in words: thirty-five million Euros) for cash by issuing new bearer ordinary shares on one or more occasions (Authorized Capital 2020/I). The number of shares must be increased in the same proportion as the share capital. In principle, the shareholders have subscription rights. The new shares can also be obtained by a credit institution or a company operating in accordance with section 53 (1) sentence 1 or section 53b (1) sentence 1 or (7) of the German Banking Act (Kreditwesengesetz KWG) (financial institution) or a consortium of such credit institutions and/or financial institutions retained by the General Partner with the obligation to offer the shares to the Company s shareholders for subscription.
However, the General Partner shall be authorized with the approval of the Supervisory Board to exclude the shareholders subscription rights in order to eliminate fractional amounts from the subscription right.
The General Partner may only exercise the aforementioned authorization to exclude subscription rights to the extent that the proportional amount of the total shares issued subject to an exclusion of subscription rights exceeds 10 % of the share capital neither at the time of this authorization coming into effect nor at the time of the exercise of this authorization. If, during the period of validity of the Authorized Capital 2020/I until its utilization, other authorizations on the issuance or on the sale of shares of the Company or the issuance of rights which authorize or bind to the subscription of shares of the Company are exercised and the subscription rights are excluded, such subscription rights will be taken into account with regard to the aforementioned limit.
The General Partner shall also be authorized with the approval of the Supervisory Board to determine the further details for the implementation of capital increases from the Authorized Capital 2020/I. Following a total or partial implementation of the increase of the share capital from the Authorized Capital 2020/I, the Supervisory Board shall be authorized to amend the wording of the corresponding provisions of the Articles with respect to the volume of such capital increase.
Article 4 (3) of the Articles is revised as follows:
The General Partner is authorized until 26 August 2025 to increase the share capital of the Company with the approval of the Supervisory Board by up to a total of
EUR 35,000,000.00 (in words: thirty-five million Euros) for cash by issuing new bearer ordinary shares on one or more occasions (Authorized Capital 2020/I). The number of shares must be increased in the same proportion as the share capital. In principle, the shareholders have subscription rights. The new shares can also be obtained by a credit institution or a company operating in accordance with section 53 (1) sentence 1 or section 53b (1) sentence 1 or (7) KWG (financial institution) or a consortium of such credit institutions and/or financial institutions retained by the General Partner with the obligation to offer the shares to the Company s shareholders for subscription.
However, the General Partner is authorized with the approval of the Supervisory Board to exclude the shareholders subscription rights in order to eliminate fractional amounts from the subscription right.
The General Partner may only exercise the aforementioned authorization to exclude subscription rights to the extent that the proportional amount of the total shares issued subject to an exclusion of subscription rights exceeds 10 % of the share capital neither at the time of this authorization coming into effect nor at the time of the exercise of this authorization. If, during the period of validity of the Authorized Capital 2020/I until its utilization, other authorizations on the issuance or on the sale of shares of the Company or the issuance of rights which authorize or bind to the subscription of shares of the Company are exercised and the subscription rights are excluded, such subscription rights will be taken into account with regard to the aforementioned limit.
The General Partner is also authorized with the approval of the Supervisory Board to determine the further details for the implementation of capital increases from the Authorized Capital 2020/I. Following a total or partial implementation of the increase of the share capital from the Authorized Capital 2020/I, the Supervisory Board is authorized to amend the wording of the corresponding provisions of the Articles with respect to the volume of such capital increase.
c) The Authorized Capital 2015/II in Article 4 (4) of the Articles of Associations shall be canceled by annulling Article 4 (4) of the Articles of Associations in its current form.
d) The General Partner shall be authorized until 26 August 2025 to increase the share capital of the Company with the approval of the Supervisory Board by up to a total
of EUR 25,000,000.00 (in words: twenty-five million Euros) for cash and/or contributions in kind by issuing new bearer ordinary shares on one or more occasions (Authorized Capital 2020/II). The number of shares must be increased in the same proportion as the share capital. In principle, the shareholders have subscription rights. The new shares can also be obtained by a credit institution or a company operating in accordance with section 53 (1) sentence 1 or section 53b (1) sentence 1 or (7) KWG (financial institution) or a consortium of such credit institutions and/or financial institutions retained by the General Partner with the obligation to offer the shares to the Company s shareholders for subscription.
However, the General Partner shall be authorized with the approval of the Supervisory Board to exclude the shareholders subscription rights in the following cases:
in the case of one or more capital increases for contributions in kind for the purpose of acquiring companies, parts of companies, interests in companies or other assets, or
in the case of one or more capital increases for cash if the issue price for the shares does not significantly fall below the stock exchange price of the shares already listed and the proportionate amount of the share capital of the Company attributable to the shares issued with exclusion of subscription rights exceeds 10 % of the share capital neither at the time of this authorization coming into effect nor at the time of the use of this authorization. To be set off against this limitation is the proportionate amount of share capital attributable to new shares or treasury shares previously acquired by the Company which are issued or sold during the period of validity of this authorization with exclusion of subscription rights in direct, analogous or corresponding application of section 186 (3) sentence 4 AktG and the proportionate amount of the share capital attributable to shares issued or to be issued to satisfy option or conversion rights or discharge option or conversion obligations from bonds, if the bonds are issued during the period of validity of this authorization with exclusion of subscription rights in analogous application of section 186 (3) sentence 4 AktG.
The General Partner may only exercise the aforementioned authorizations to exclude subscription rights to the extent that the proportional amount of the total shares issued subject to an exclusion of subscription rights exceeds 10 % of the share capital neither at the time of these authorizations coming into effect nor at the time of the exercise of these authorizations. If, during the period of validity of
the Authorized Capital 2020/II until its utilization, other authorizations on the issuance or on the sale of shares of the Company or the issuance of rights which authorize or bind to the subscription of shares of the Company are exercised and the subscription rights are excluded, such subscription rights will be taken into account with regard to the aforementioned limit.
The General Partner shall also be authorized with the approval of the Supervisory Board to determine the further details for the implementation of capital increases from the Authorized Capital 2020/II. Following a total or partial implementation of the increase of the share capital from the Authorized Capital 2020/II, the Supervisory Board shall be authorized to amend the wording of the corresponding provisions of the Articles with respect to the volume of such capital increase.
Article 4 (4) of the Articles is revised as follows:
The General Partner is authorized until 26 August 2025 to increase the share capital of the Company with the approval of the Supervisory Board by up to a total of EUR 25,000,000.00 (in words: twenty-five million Euros) for cash and/or contributions in kind by issuing new bearer ordinary shares on one or more occasions (Authorized Capital 2020/II). The number of shares must be increased in the same proportion as the share capital. In principle, the shareholders have subscription rights. The new shares can also be obtained by a credit institution or a company operating in accordance with section 53 (1) sentence 1 or section 53b (1) sentence 1 or (7) KWG (financial institution) or a consortium of such credit institutions and/or financial institutions retained by the General Partner with the obligation to offer the shares to the Company s shareholders for subscription.
However, the General Partner is authorized with the approval of the Supervisory Board to exclude the shareholders subscription rights in the following cases:
in the case of one or more capital increases for contributions in kind for the purpose of acquiring companies, parts of companies, interests in companies or other assets, or
in the case of one or more capital increases for cash if the issue price for the shares does not significantly fall below the stock exchange price of the shares already listed and the proportionate amount of the share capital of the Company attributable to the shares issued with exclusion of subscription rights exceeds
10 % of the share capital neither at the time of this authorization coming into effect nor at the time of the use of this authorization. To be set off against this limitation is the proportionate amount of share capital attributable to new shares or treasury shares previously acquired by the Company which are issued or sold during the period of validity of this authorization with exclusion of subscription rights in direct, analogous or corresponding application of section 186 (3) sentence 4 AktG and the proportionate amount of the share capital attributable to shares issued or to be issued to satisfy option or conversion rights or discharge option or conversion obligations from bonds, if the bonds are issued during the period of validity of this authorization with exclusion of subscription rights in analogous application of section 186 (3) sentence 4 AktG.
The General Partner may only exercise the aforementioned authorizations to exclude subscription rights to the extent that the proportional amount of the total shares issued subject to an exclusion of subscription rights exceeds 10 % of the share capital neither at the time of these authorizations coming into effect nor at the time of the exercise of these authorizations. If, during the period of validity of the Authorized Capital 2020/II until its utilization, other authorizations on the issuance or on the sale of shares of the Company or the issuance of rights which authorize or bind to the subscription of shares of the Company are exercised and the subscription rights are excluded, such subscription rights will be taken into account with regard to the aforementioned limit.
The General Partner is also authorized with the approval of the Supervisory Board to determine the further details for the implementation of capital increases from the Authorized Capital 2020/II. Following a total or partial implementation of the increase of the share capital from the Authorized Capital 2020/II, the Supervisory Board is authorized to amend the wording of the corresponding provisions of the Articles with respect to the volume of such capital increase.
Pursuant to section 278 (3) AktG in connection with sections 203 (2) sentence 2, 186 (4) sentence 2 AktG, the General Partner has submitted a written report on the reasons for the exclusion of subscription rights in certain cases according to the paragraphs b) and d) above. The contents of this report are part of this notice on the convening of the Annual General Meeting and are published under Section IV. below. The report will also be available on the Company s website under www.freseniusmedicalcare.com/en/agm/ from the time of the convening of the Annual General Meeting.
9. Resolution on the amendment of Article 15 (1) sentence 2 of the Company s Articles of Association (Alignment with the German Stock Corporation Act as amended by the ARUG II)
Pursuant to Article 15 (1) sentence 1 of the Company s Articles of Association, only those shareholders are entitled to attend the General Meeting and to exercise the voting right who have registered and provided evidence of their entitlement. Pursuant to Article 15 (1) sentence 2 of the Company s Articles of Association, evidence of entitlement requires evidence of the shareholding by the depositary institution.
The provision of the German Stock Corporation Act on which Article 15 (1) sentence 2 of the Company s Articles of Association is based was partially amended by the German Act Implementing the Second Shareholder Rights Directive (ARUG II) for General Meetings convened after 3 September 2020. In particular, section 123 (4) AktG refers to the newly introduced section 67c (3) AktG. As a consequence of this, pursuant to the new legal terminology, evidence of the shareholding must be provided by the so-called ultimate intermediary and no longer by the depositary institution .
Article 15 (1) sentence 2 of the Company s Articles of Association shall be amended in order to continue to comply with the corresponding provision of the German Stock Corporation Act.
The General Partner and the Supervisory Board propose to resolve as follows:
a) Article 15 (1) sentence 2 of the Company s Articles of Association shall be revised as follows:
As evidence of entitlement, evidence of the shareholding by the ultimate intermediary is required.
Otherwise, Article 15 (1) of the Company s Articles of Association shall remain unchanged.
b) The General Partner is instructed to apply for the registration of the resolved amendment to the Articles of Association in the commercial register no earlier than 3 September 2020.
II. COMPENSATION SYSTEM FOR THE MEMBERS OF THE MANAGEMENT BOARD OF THE GENERAL PARTNER