Capital, shareholders, statutes

The summary below shows the subscribed capital of Fresenius SE:

  December 31, 2009 December 31, 2008
  Number of shares Subscribed
capital €
% of
subscribed capital
Number of shares Subscribed
capital €
Ordinary shares / capital 80,657,688 80,657,688.00 50 % 80,571,867 80,571,867.00
Preference shares / capital 80,657,688 80,657,688.00 50 % 80,571,867 80,571,867.00
Total 161,315,376 161,315,376.00 100 % 161,143,734 161,143,734.00

  December 31, 2009 December 31, 2008
  Number of shares Subscribed
capital €
% of
subscribed capital
Number of shares Subscribed
capital €
Ordinary shares / capital 80,657,688 80,657,688.00 50 % 80,571,867 80,571,867.00
Preference shares / capital 80,657,688 80,657,688.00 50 % 80,571,867 80,571,867.00
Total 161,315,376 161,315,376.00 100 % 161,143,734 161,143,734.00

The shares of Fresenius SE are non-par-value bearer shares. Shareholders’ rights are regulated by the SE Regulation and the German Stock Corporation Act (AktG – Aktiengesetz). Additionally, the statutes of Fresenius SE contain the following three provisions for the holders of non-voting preference shares:

  • From retained earnings for the year they will receive a € 0.01 higher dividend than for an ordinary share and a minimum dividend of € 0.02 per preference share.
  • The minimum dividend payable on preference shares takes precedence over payment of a dividend on ordinary shares.
  • If the retained earnings of one or more fiscal years is not sufficient to pay a dividend of € 0.02 per preference share, the amounts not distributed will be paid in arrears without interest from the retained earnings in subsequent fiscal years, after distributing the minimum preference dividend for those fiscal years and before payment of a dividend on the ordinary shares. The deferred payment right is a constituent of the share of profits from retained earnings of that fiscal year for which the deferred payment is made.

At the Annual General Meeting on May 8, 2009, resolutions were passed revoking the previous Approved Capitals I and II. At the same time, the Management Board was authorized, subject to the consent of the Supervisory Board:

  • to increase the subscribed capital by a total amount of € 12,800,000.00 by May 7, 2014 through a single or multiple issuance of bearer ordinary shares and / or non-voting bearer preference shares against cash contributions (Approved Capital I).
  • to increase the subscribed capital by a total amount of € 6,400,000.00 by May 7, 2014 through a single or multiple issuance of bearer ordinary shares and / or non-voting bearer preference shares against cash contributions and / or contributions in kind (Approved Capital II). Shareholders’ pre-emptive rights of subscription can be excluded.

The Approved Capitals I and II were entered in the Commercial Register on July 15, 2009. Against the resolutions of the Annual General Meeting dated May 8, 2009 creating Approved Capitals I and II, two challenging complaints (Anfechtungsklagen) were lodged. The Frankfurt Regional Court has decided in favor of one complaint through judgment dated February 2, 2010, the other complaint was rejected. The judgment of the Frankfurt Regional Court dated February 2, 2010 is not yet final and binding. The clearance procedure pursuant to section 264a of the German Stock Corporation Act (AktG) is pending before the Higher Regional Court in Frankfurt am Main with the view of securing the validity of the approved capital which has already been registered in the commercial register.

In addition, there is the following conditional capital:

  • The subscribed capital is conditionally increased by up to € 1,364,934.00 through the issuance of new bearer ordinary shares and non-voting bearer preference shares (Conditional Capital I). The conditional capital increase will only be executed to the extent that subscription rights for ordinary and preference shares are issued under the 1998 Stock Option Plan and the holders of these subscription rights exercise their rights.
  • The subscribed capital is conditionally increased by up to € 4,418,250.00 through the issuance of new bearer ordinary shares and non-voting bearer preference shares (Conditional Capital II). The conditional capital increase will only be executed to the extent that convertible bonds for ordinary and preference shares are issued under the 2003 Stock Option Plan and the holders of these convertible bonds exercise their conversion rights.
  • The subscribed capital is conditionally increased by up to € 6,200,000.00 through the issuance of new bearer ordinary shares and non-voting bearer preference shares (Conditional Capital III). The conditional capital increase will only be executed to the extent that subscription rights for ordinary and preference shares are issued under the 2008 Stock Option Plan and the holders of these subscription rights exercise their rights.

Fresenius SE does not have a share buyback program.

Direct and indirect ownership interests in Fresenius SE are listed on note 26, Noncontrolling interest. The Else Kröner-Fresenius- Stiftung informed Fresenius SE on December 23, 2009, that it holds 46,871,154 ordinary shares of Fresenius SE. This corresponds to a voting interest of 58.11 %.

Changes to the statutes are made in accordance with Article 59 of the SE Regulation in accordance with Section 18 (3) of the statutes. Unless mandatory legal provisions require otherwise, amendments of the statutes require a majority of two-thirds of the votes cast or, if at least half of the subscribed capital is represented, the simple majority of the votes cast. If, for the effectiveness of the passing of resolutions, mandatory legal provisions require that, in addition, a majority of the subscribed capital be represented when the resolution is passed, the simple majority of the subscribed capital represented shall be sufficient, to the extent that this is permitted by law. If the voting results in a tie, a motion is deemed rejected. The Supervisory Board is entitled to make such amendments to the statutes which only concern their wording without a resolution of the General Meeting.

A change of control as the result of a takeover bid under certain circumstances could impact some of our long-term financing agreements embodying change of control agreements. These are customary change of control clauses that grant creditors the right of premature call in the event of a change of control, whereby the right of premature call usually only becomes effective if the change of control is followed by a downgrading of the Company’s rating.

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