Articles of Association of BayWa AG

Transcription

1 Articles of Association of BayWa AG As amended on 27 October 2015

2 Dear reader Below you will find the current version of the Articles of Association of BayWa Aktiengesellschaft, Munich, which are adopted by the general meeting as amended from time to time. We both the board of management and the employees see it not only as a legal, but also as a personal obligation to comply with these Articles of Association given to us by our shareholders in managing and developing BayWa in accordance with its economic purpose and social responsibility. As a consequence, our Articles of Association reflect both our business model and the co-operative concept of BayWa AG, which distinguishes us from many other listed companies. Our Articles of Association show that BayWa AG, keeping a firm eye on the future, responds to new challenges, but at the same time feels strongly committed to its original values and the co-operative idea. Yours sincerely Klaus Josef Lutz Chairman of the Board of Management of BayWa AG 2

3 . Translation from German into English Articles of Association of BayWa AG I. Name and seat of the Company; Object of the Company, 1-2 II. Announcements and information; Place of jurisdiction, 3-4 III. Share capital and shares, 5-7 IV. Corporate bodies, 8-24 a) Board of management, 9-12 b) Supervisory board, c) General meeting, V. Financial year, annual accounts and appropriation of profits, VI. Co-operative council,

4 I. Name and seat of the Company; Object of the company 1 Name and seat The name of the Company is BayWa Aktiengesellschaft. The Company s seat is Munich. 2 - Object of the Company 1. The Company operates an international group of companies. The business segments in which the company and its companies do business include: a) the agriculture industry, in particular the production, collection and marketing of, as well as trading with, produce and products from the agricultural, forestry and food sectors including agricultural equipment, as well as trading with capital goods for the agricultural and forestry industry and municipalities and businesses; b) the construction and garden industry, in particular the marketing of and trading with building materials and garden products, as well as rendering construction, construction planning, construction logistics and general contractor services; c) the energy industry, in particular trading with fossil and renewable fuels and lubricants and the development, production and marketing of, as well as trading with technologies, or technology concepts primarily in the renewables field; d) the provision of services related to the aforementioned business segments, in particular consultancy, agency, logistics and financing services, as well as performing group management activities. 4

5 2. The Company shall be entitled to enter into any transactions and take any measures that are related to, or may be deemed apt to directly or indirectly serve, the object of the Company as described under 2 para. 1; in particular, it may enter into domination and/or profit and loss transfer agreements, joint-venture agreements or similar agreements. The Company shall be entitled to establish branches or subsidiaries in Germany and abroad as well as to acquire other German or foreign companies, or interests in such companies. It may spin-off its operations, in whole or in part, to affiliates. II. Announcements and information; Place of jurisdiction 3 Announcements and information 1. Announcements of the Company shall be published in the Federal Gazette (Bundesanzeiger). 2. Information to shareholders may also be provided through electronic media. 4 Place of jurisdiction The place of jurisdiction for any disputes arising between shareholders on the one hand and the Company or its bodies on the other shall be Munich. III. Share Capital and shares 5 Share capital 1. The Company s share capital amounts to 89,046,988.80and is divided into registered no-par value shares. 5

6 2. The board of management shall be authorised to increase, subject to the consent of the supervisory board, the share capital one or several times on or before 18 May 2020 by a nominal amount of up to 4,689, by issuing new registered no-par-value shares with restricted transferability against cash contribution to employees of BayWa AG or its affiliates as defined by sections 15 et seqq. of the German Stock Exchange Act (Aktiengesetz AktG). Shareholders subscription rights shall be excluded. The board of management shall be authorised to determine, subject to the consent of the supervisory board, the further terms and conditions under which the shares are to be issued (Authorised Capital 2015). 3. The board of management shall be authorised to increase, subject to the consent of the supervisory board, the share capital one or several times on or before 31 May 2016 by a nominal amount of up to 12,500,000 by issuing new registered no-par-value shares with restricted transferability against non-cash contributions. This authorisation may be utilised in partial amounts. Shareholders subscription rights shall be excluded. The board of management shall be authorised to determine, subject to the consent of the supervisory board, the further terms and conditions under which the shares are to be issued (Authorised Capital 2011). 4. The board of management shall be authorised to increase, subject to the consent of the supervisory board, the share capital one or several times on or before 31 May 2018 by a nominal amount of up to 10,000,000 by issuing new registered no-par-value shares against non-cash contributions. This authorisation may be utilised in partial amounts. Shareholders subscription rights shall be excluded. The board of management shall be authorised to determine, subject to the consent of the supervisory board, the further terms and conditions under which the shares are to be issued (Authorised Capital 2013). 6 - Shareholders Shares may be purchased by: a) Bayerische Raiffeisen-Beteiligungs-Aktiengesellschaft in Munich, b) co-operatives or other members associated with the Genossenschaftsverband Bayern (Raiffeisen/Schulze-Delitzsch) e.v., 6

7 c) members of the boards of management and the supervisory boards of Bayerische Raiffeisen-Beteiligungs-Aktiengesellschaft in Munich and BayWa Aktiengesellschaft in Munich, d) subject to the board of management s consent, other individuals and legal entities under civil and public law. In the case of members of associations that are members of the Deutsche Genossenschafts- und Raiffeisenverband e.v., the board of management shall withhold its consent only for good cause. Consent is required neither for the bearer shares converted into registered shares by resolution of the extraordinary general meeting of June 1960 nor for the new registered shares with unrestricted transferability created under the Authorised Capital 98 by resolution of the board of management dated 21 May 2003 with the supervisory board s consent. 7 Share issue; Form and content of share certificates, dividend coupons and renewal talons 1. Shares may be issued at a price exceeding the proportionate amount in the share capital attributable to an individual no-par value share. 2. The right of shareholders to individual certificates evidencing their shares shall be excluded. The Company may issue global certificates representing a number of shares. Notwithstanding the foregoing, the form and content of share certificates, dividend coupons and renewal talons shall be determined by the board of management with the supervisory board s consent. IV. Corporate bodies 8 The Company has the following bodies: a) the board of management, b) the supervisory board, c) the general meeting. 7

8 a) Board of management Translation from German into English 9 Composition and remuneration 1. The board of management shall consist of several, but no more than nine, members; one member of the board of management shall be primarily responsible for human resources and social affairs. The number of the members of the board of management shall be determined by the supervisory board in accordance with sentence 1 above. The members of the board of management shall be appointed by the supervisory board. Their term of appointment shall not exceed five years; re-appointments shall be permissible. 2. The chairman of the board of management shall be appointed by the supervisory board. 3. The supervisory board shall determine the remuneration of the members of the board of management Representation 1. The Company may be represented in judicial and extrajudicial affairs jointly by two members of the board of management. 2. The board of management may appoint authorised signatories with special statutory power of attorney (Prokura). In such case, a member of the board of management and an authorised signatory shall be authorised to jointly represent, and sign on behalf of, the Company, with the authorised signatory being required to indicate his special statutory power of attorney Management 1. The board of management shall manage the Company on its own authority as required for the purpose and the good of the Company in accordance with the law, these Articles of Association and the rules of procedure for the board of management. The board of management shall need the supervisory board s consent only where required by law, these Articles of Association, the rules of procedure for the board of management or resolution of the supervisory board. The board of 8

9 management shall report to the supervisory board as required by law, these Articles of Association, the rules of procedure for the board of management or resolution of the supervisory board. 2. The members of the board of management shall perform their management duties with the care that a prudent business manager would take. 3. Members of the board of management who violate their duties shall be liable for any damages arising from such violation as joint and several debtors. 12 Resolutions and rules of procedure 1. The board of management shall adopt its resolutions by a simple majority, unless a larger majority is required by law. In the event of a tie, the chairman shall have the casting vote. 2. All matters of fundamental or material significance shall be decided by resolution of the entire board of management. 3. The board of management shall adopt its own rules of procedure. b) Supervisory board 13 - Composition 1. The supervisory board consists of sixteen members. 2. Each member of the supervisory board shall be elected for a period ending upon the conclusion of the general meeting that resolves on the formal approval of the acts of the board of management for the fourth financial year after his election; for purposes of calculation, the financial year in which the term of office commences shall be disregarded. 3. The shareholders may, as permitted by law, elect up to four substitute members for the ordinary supervisory board members to be elected by the general meeting as shareholders representatives. If an ordinary supervisory board member prematurely ceases to hold office, the substitute member shall replace the leaving member in the supervisory board. The term of office of 9

10 the substitute member shall end upon the conclusion of the next general meeting. If a supervisory board member elected by the general meeting prematurely ceases to hold office and is not replaced by a substitute member, a new election shall be held at the next general meeting. In such case, the term of office of the newly elected supervisory board member shall not exceed the remaining term of office of the member having left the supervisory board. The term of office of a substitute member elected by the employees shall be equal to the remaining term of office of the member having left the supervisory board. 4. Re-elections shall be permissible. 5. Each member of the supervisory board may resign from office, with or without cause, at any time by giving notice to the chairman of the supervisory board Declarations The chairman of the supervisory board shall make and accept on the supervisory board s behalf any declarations necessary to implement the supervisory board s resolutions Chairman The supervisory board, led by the eldest present supervisory board member, shall elect a chairman and a deputy chairman from among its members in accordance with section 27 paras. 1 and 2 of the German Co-Determination Act (Mitbestimmungsgesetz MitbestG). The supervisory board may also elect further deputies from among its members. Unless a shorter term is determined upon the election, the term of office of the chairman and his deputies shall be equal to their terms as members of the supervisory board. If the chairman or a deputy retires from the supervisory board during his term of office, the supervisory board shall elect a new chairman or deputy, as applicable, without undue delay Meetings, resolutions and rules of procedure 1. The supervisory board shall be convened by the chairman or, in his unavoidable absence, by a deputy by giving one week s notice specifying the items on the agenda. In cases of urgency, the chairman of the 10

11 supervisory board may call a meeting at an appropriate shorter notice. Meetings of the supervisory board shall be held on a quarterly basis, and in addition whenever there is business for a meeting. Each supervisory board member or the board of management may request, specifying the purpose and the reasons, the chairman of the supervisory board to convene a supervisory board meeting without undue delay. Such meeting shall be held within two weeks after the request was made. If a request made by at least two supervisory board members or by the board of management is not met, the requesters may convene a supervisory board meeting themselves, communicating the circumstances having led to such convocation. 2. The board of management shall attend the meetings of the supervisory board, unless the supervisory board decides otherwise on a case-by-case basis. 3. The supervisory board shall have a quorum of eight or if the chairman does not vote on a resolution of twelve members. A member abstaining from voting shall be disregarded in the calculation of the quorum. Absent supervisory board members may vote on a resolution by having another member submit their written vote. The casting vote of the chairman as defined in 16 no. 6 sentence 3 may also be submitted in writing. 4. Motions and items that are not on the agenda may only be voted on if a majority of at least three-fourths of the supervisory board members have agreed to do so. 5. At the instigation of the chairman of the supervisory board, resolutions of the supervisory board or one of its committees may also be passed in writing or by telephone, fax or electronic means. 6. Resolutions shall be passed by simple majority of the votes cast; in the event of a tie, the motion shall be deemed rejected. In such a case, at the request of the chairman of the supervisory board or another supervisory board member and to the extent permitted by law, the rejected motion may be voted on again. In such second vote, the chairman of the supervisory board shall have the casting vote in the event of another tie. 11

12 7. Minutes of supervisory board meetings shall be taken, which shall specify the place and date of the meeting, the attendees, the items on the agenda, the substantial contents of the debates and the resolutions. The minutes shall be signed by the chairman, a second supervisory board member and the keeper of the minutes. 8. The supervisory board shall adopt its own rules of procedure. 17 Scope of responsibilities 1. The supervisory board shall have the rights and duties set forth in the German Stock Corporation Act. In particular, the supervisory board shall supervise the management activities of the board of management. It shall convene the general meeting if the Company s well-being so requires. 2. Management measures shall not fall within the supervisory board s scope of responsibilities. 3. The supervisory board may reserve the right to give its prior consent to individual measures of particular importance. 4. The supervisory board shall be authorised to make amendments to these Articles of Association that only relate to their phrasing, in particular to adapt the wording of the Articles of Association in the event of full or partial share capital increases based on the utilisation of authorised or conditional capital or upon the expiry of periods allowing for such utilisation Committees 1. The supervisory board may form committees from among its members and may, to the extent permitted by law, also delegate tasks to such committees. 2. If the chairman is a member of a committee, 16 para. 6 sentences 2 and 3 shall apply accordingly. 12

13 19 Remuneration and reimbursement of expenses 1. The supervisory board members shall receive a) fixed annual remuneration of 10,000, payable at the end of the respective financial year, and b) variable remuneration of 250 for each cash dividend portion of 0.01 per share approved by the general meeting which is distributed to the shareholders in excess of a share in profit of 0.10 per share. Variable remuneration shall become due and payable at the end of the general meeting which has passed a resolution on the aforementioned cash dividend portion. 2. The chairman of the supervisory board shall receive three times the amount and the deputy chairmen twice the amount of remuneration paid as described in para. 1 above. 3. Additional fixed remuneration of 2,500 per year shall be paid for committee work. The chairmen shall receive three times the respective amount. 4. Supervisory board members who serve on the supervisory board and/or its committees for only part of the financial year shall receive remuneration on a proportionate basis. 5. In addition, they shall be reimbursed for their expenses and any value added tax incurred during their activities as a member of the supervisory board or its committees. Moreover, supervisory board members will be included in any D&O insurance taken out in the interest of the Company covering personal liability in an appropriate amount. The Company shall pay the insurance premium. 20 Reporting and confidentiality 1. Pursuant to section 90 of the German Stock Corporation Act, reports to the supervisory board or individual supervisory board members shall only be made by the board of management. 13

14 2. The supervisory board members shall maintain confidentiality of all confidential information and trade and business secrets of the Company of which they have obtained knowledge due to their activities as members of the supervisory board, and they will not disclose such information and secrets to any third parties. 3. Supervisory board members who breach their duties shall be jointly and severally liable to the Company for any damages resulting from such breach. c) General meeting 21 Functions and voting rights 1. The shareholders shall exercise their rights with respect to the matters of the Company, in particular the management activities, by passing respective resolutions in the general meeting. 2. The voting right shall be exercised according to the number of no-par value shares; each no-par value share confers one vote. The voting right may be exercised by a proxy. Unless otherwise provided by law, the relevant proxy notice, its revocation and proof of such proxy notice to be provided to the Company need to be issued in text form (section 126b of the German Civil Code (Bürgerliches Gesetzbuch BGB)). Proof of the proxy notice may also be delivered by electronic means as further specified in the relevant notice of meeting. 3. The general meeting shall pass resolutions in the cases explicitly stipulated by law and in these Articles of Association. 22 Convening and place of the general meeting 1. As a general rule, the general meeting shall be convened by the board of management within the first eight months of a year; in the remaining cases laid down by the law, it shall be convened by the board of management or the supervisory board. In addition, the general meeting shall be convened as often as the board of management, the supervisory board or shareholders whose shares, taken together, equal or exceed 5% of the share capital so require. The shareholders shall request the board of management in writing to convene the general meeting, indicating the purpose of and the reasons for such request. Equally, shareholders whose shares, taken 14

15 together, equal or exceed 5% of the share capital or the proportionate amount of 500,000 shall be entitled to request that certain items be put on the agenda and duly announced. If such request is not complied with, the competent court may authorise the shareholders who have submitted the request to convene the general meeting or to duly announce the relevant agenda item. 2. The convening of the general meeting shall be announced in the Federal Gazette (Bundesanzeiger) at least 30 days prior to the day by the end of which the shareholders must register for the general meeting. For the purposes of calculating this period, the day of convening the general meeting and the last day of the registration period shall be disregarded. 3. The general meeting shall be take place at the seat of the Company; the board of management may also determine another German city having more than 100,000 inhabitants. 23 Right to attend the general meeting 1. Any shareholder who is registered in the share register and has registered for the general meeting in due time shall have the right to attend the general meeting either in person or by proxy. 2. The Company must have received the registration at the address specified for these purposes in the notice of meeting at least six days prior to the general meeting. The notice of meeting may provide for a shorter period (expressed in days). 24 Conduct of the general meeting 1. The general meeting shall be chaired by the chairman of the supervisory board or, if he is unable to attend, by a supervisory board member appointed by him. Should the chairman not accept such appointment, the shareholder representatives sitting on the supervisory board shall appoint from their midst a person chairing the meeting. 2. The agenda of the general meeting shall be published together with the notice of meeting. If the minority has requested that certain items be put on the agenda and duly announced ( 22 para. 1 sentence 4) such items shall either be published together with the notice of meeting or without undue 15

16 delay upon receipt of the request. No resolutions shall be passed with respect to agenda items that have not been duly announced. 3. The general meeting shall pass its resolutions by a simple majority of votes cast, unless otherwise stipulated by law or in these Articles of Association. In the event of a tie, the subject of the resolution shall be deemed rejected. In the case of elections, the proposal that obtains most votes shall be deemed accepted; in the event of a tie, elections shall be decided by the chairman of the meeting drawing a lot. 4. Resolutions to amend these Articles of Association or to remove supervisory board members shall require a three-quarters majority of the votes cast. 5. The chairman of the general meeting shall determine the order of speakers. To the extent required for the proper conduct of the general meeting, he shall be entitled to set a reasonable time limit for shareholders questions or speeches or to end the debates on particular agenda items. In particular, he is entitled, already at the beginning or in the course of the general meeting, to set a reasonable timeframe for the course of the meeting, for debates on particular agenda items and for specific speakers. The chairman of the general meeting shall also determine the order of agenda items and voting as well as the manner of casting votes. He may stipulate that several votes be collected together. 6. Resolutions passed by the general meeting shall be recorded and notarised. The voting results, including the information to be provided in line with section 130 para. 2 sentence 2 of the German Stock Corporation Act, shall be published on the Company s website within seven days after the general meeting. 7. The chairman of the meeting may also admit guests to the general meeting. 8. The chairman of the meeting may permit audio-visual transmission of the general meeting, also in a form allowing for unrestricted public access. 16

17 V. Financial year, annual accounts and appropriation of profits 25 Financial year The financial year shall be the calendar year. 26 Annual accounts 1. Within the first three months of a financial year, the board of management shall draw up the annual accounts, the management report as well as the consolidated annual accounts and the group management report for the past financial year and submit them to the auditor and the supervisory board. The proposal for the appropriation of profits which the board of management intends to present to the general meeting shall be submitted to the supervisory board together with the annual accounts and the management reports. 2. The supervisory board shall review the annual accounts, the management report and the proposal for the appropriation of profits as well as the consolidated annual accounts and the group management report; it shall produce a written report on the results of the review for the general meeting and submit such report to the board of management within one month from receipt of the relevant documents. 3. If the supervisory board approves the annual accounts, they shall be deemed adopted; the same shall apply to the consolidated annual accounts. The resolutions passed by the board of management and the supervisory board on the adoption of the annual accounts shall be included in the supervisory board s report to the general meeting. 4. The board of management shall convene the annual general meeting without undue delay after receipt of the supervisory board s report. The annual general meeting shall take place within the first eight months of the financial year. The annual accounts and the pertaining management report, the consolidated annual accounts and the group management report as well as the report of the supervisory board and the board of management s proposal for the appropriation of profits shall be made available as required by law from the date of convening the general 17

18 meeting. Translation from German into English 27 - Appropriation of profits 1. 5% of the net income for a financial year reduced by the loss carry forward of the previous year shall be appropriated to a legal reserve until such legal reserve and the capital reserves, taken together, will equal or exceed, for the first time or repeatedly, 25% of the share capital. 2. If the board of management and the supervisory board adopt the annual accounts, they may appropriate amounts not exceeding half of the net income for a financial year to other retained earnings. In addition, the board of management and the supervisory board shall be entitled to appropriate further amounts not exceeding a quarter of the net income for such financial year to other retained earnings; this shall not apply if the other retained earnings exceed, or would exceed after appropriation, half of the Company s share capital. VI. Co-operative council 28 Co-operative council and its members 1. The Company shall have a co-operative council. 2. The number of members shall be determined by the board of management subject to the supervisory board s consent. The board of management shall nominate the members and appoint them for a period of up to 4 years, which is also subject to the consent of the supervisory board. Subject to the latter s approval, a member may only be removed by the board of management if there is good cause or if the requirements for such appointment cease to exist. 3. Only individuals who are members of a co-operative may be appointed as members of the co-operative council. 4. Repeated appointments shall be permitted. 18

19 5. The chairman of the supervisory board and another individual elected by the supervisory board s shareholder representatives from their midst shall also become members of the co-operative council in addition to those appointed in accordance with para. 2 above. 6. The co-operative council shall elect the chairman and his deputies from among its members; it may also form committees from its ranks. 7. Each member of the co-operative council may resign from office at any time by giving notice to the chairman of the co-operative council. 8. The members of the co-operative council shall receive remuneration for their activities which is to be determined by the board of management subject to the consent of the supervisory board. In addition, they shall be reimbursed for their expenses Tasks 1. The co-operative council shall exercise advisory functions to safeguard the co-operatives interests. It may submit proposals and recommendations to the board of management and the supervisory board provided that such proposals and recommendations are accepted by a majority of votes (in the event of a tied vote, they shall be deemed rejected). 2. The co-operative council shall not be entitled to attend the meetings of the supervisory board. 3. Powers of the board of management or the supervisory board shall not be delegated to the co-operative council. 30 Meetings of the co-operative council 1. The co-operative council shall be convened by the chairman or its deputy, respectively, at least twice a year. Place and date of the meetings shall be determined by the chairman. 2. The board of management shall be invited to attend the meetings of the co-operative council in order to report on its current activities. 19

20 31 - Confidentiality Translation from German into English 1. The members of the co-operative council shall maintain confidentiality of all confidential information and trade and business secrets of the Company of which they have obtained knowledge due to their activities as members of the co-operative council, and they will not disclose such information and secrets to any third parties. 2. Members of the co-operative council who breach their duties shall be jointly and severally liable to the Company for any damages resulting from such breach. 20

21 Registered in the Companies Register (Gesellschaftsregister) of the Local Court (Amtsgericht) of Munich on 16 February Restated version registered in the Commercial Register (Handelsregister) of the Local Court of Munich on 28 June As of 27 October