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Capital, shareholders, articles of association

The summary below shows the subscribed capital of Fresenius SE & Co. KGaA. The shares of Fresenius SE & Co. KGaA are nonpar-value bearer shares. Shareholders’ rights are regulated by the German Stock Corporation Act (AktG – Aktiengesetz).

The change of legal form to a KGaA was registered with the commercial register on January 28, 2011, and thereby became effective. In accordance with the resolution of the General Meeting and the articles of association of Fresenius SE & Co. KGaA, all the ordinary shares of Fresenius SE thereby became ordinary shares of Fresenius SE & Co. KGaA. At the same time, all non-voting preference shares of Fresenius SE were mandatorily converted at a 1 : 1 exchange ratio into voting ordinary shares of Fresenius SE & Co. KGaA. The Company’s total share capital remained unchanged.

  December 31, 2011 December 31, 2010
  Number of shares Subscribed capital € Number of shares Subscribed capital €
Ordinary shares/capital 163,237,336 163,237,336.00 81,225,045 81,225,045.00
Preference shares/capital 0 0 81,225,045 81,225,045.00
Total 163,237,336 163,237,336.00 162,450,090 162,450,090.00

  December 31, 2011 December 31, 2010
  Number of shares Subscribed capital € Number of shares Subscribed capital €
Ordinary shares/capital 163,237,336 163,237,336.00 81,225,045 81,225,045.00
Preference shares/capital 0 0 81,225,045 81,225,045.00
Total 163,237,336 163,237,336.00 162,450,090 162,450,090.00

By resolution of the Annual General Meeting on May 13, 2011, the previous Authorized Capitals I to V were revoked and a new Authorized Capital I was created.

Accordingly, Fresenius Management SE, as general partner, is authorized, subject to the consent of the Supervisory Board of Fresenius SE & Co. KGaA:

  • to increase the subscribed capital of Fresenius SE & Co. KGaA by a total amount of up to €40,320,000.00 until May 12, 2016, through a single or multiple issuance of new bearer ordinary shares against cash contributions and/or contributions in kind (Authorized Capital I). Shareholders’ pre-emptive rights of subscription can be excluded.

In addition, there are the following Conditional Capitals, adjusted for stock options that have been exercised in the meantime:

  • The subscribed capital is conditionally increased by up to €888,428.00 through the issuance of new bearer ordinary shares (Conditional Capital I). The conditional capital increase will only be executed to the extent that subscription rights have been 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 €2,976,630.00 through the issuance of new bearer ordinary shares (Conditional Capital II). The conditional capital increase will only be executed to the extent that convertible bonds for ordinary shares have been 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 €6,024,524.00 through the issuance of new bearer ordinary shares (Conditional Capital III). The conditional capital increase will only be executed to the extent that subscription rights have been or will be issued under the 2008 Stock Option Plan, the holders of these subscription rights exercise their rights, and the Company does not use its own treasury shares to service the subscription rights or does not exercise its right to make payment in cash, whereby the granting of subscription rights to the Management Board of the general partner, and their settlement, shall be solely and exclusively the responsibility of its Supervisory Board.

Fresenius SE & Co. KGaA does not have a share buyback program.

Direct and indirect ownership interests in Fresenius SE & Co. KGaA are listed in the Notes. The Else Kröner-Fresenius-Stiftung, as the largest shareholder, informed the Company on December 30, 2011, that it held 46,871,154 ordinary shares of Fresenius SE & Co. KGaA. This corresponds to an equity interest of 28.71% as of December 31, 2011.

Amendments to the articles of association are made in accordance with Section 278 (3), Section 179 (2) of the German Stock Corporation Act (AktG) in conjunction with Section 17 (3) of the articles of association of Fresenius SE & Co. KGaA. Unless mandatory legal provisions require otherwise, amendments of the articles of association require a simple majority of the subscribed capital represented in the resolution. If the voting results in a tie, a motion is deemed rejected. Furthermore, in accordance with Section 285 (2) sentence 1 of the German Stock Corporation Act (AktG), amendments to the articles of association require the consent of the general partner, Fresenius Management SE. The Supervisory Board is entitled to make such amendments to the articles of association 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 agreements are customary change of control clauses that grant creditors the right of premature call in the event of a change of control. However, 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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