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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/20/24 Fresenius Medical Care AG 20-F 12/31/23 204:52M Toppan Merrill/FA |
Document/Exhibit Description Pages Size
1: 20-F Annual or Annual-Transition Report by a Foreign HTML 11.74M
Non-Canadian Issuer
2: EX-1.1 Underwriting Agreement or Conflict Minerals Report HTML 107K
3: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, HTML 122K
Liquidation or Succession
4: EX-2.2 Plan of Acquisition, Reorganization, Arrangement, HTML 434K
Liquidation or Succession
6: EX-4.12 Instrument Defining the Rights of Security Holders HTML 117K
7: EX-4.17 Instrument Defining the Rights of Security Holders HTML 141K
8: EX-4.18 Instrument Defining the Rights of Security Holders HTML 772K
9: EX-4.19 Instrument Defining the Rights of Security Holders HTML 1.27M
10: EX-4.20 Instrument Defining the Rights of Security Holders HTML 167K
5: EX-4.4 Instrument Defining the Rights of Security Holders HTML 70K
14: EX-13.1 Annual or Quarterly Report to Security Holders HTML 58K
15: EX-13.2 Annual or Quarterly Report to Security Holders HTML 58K
16: EX-97 Clawback Policy re: Recovery of Erroneously HTML 151K
Awarded Compensation
11: EX-11.3 Statement re: the Computation of Earnings Per HTML 166K
Share
12: EX-12.1 Statement re: the Computation of Ratios HTML 62K
13: EX-12.2 Statement re: the Computation of Ratios HTML 62K
22: R1 Document and Entity Information HTML 138K
23: R2 Consolidated statements of income HTML 120K
24: R3 Consolidated statements of comprehensive income HTML 107K
25: R4 Consolidated balance sheets HTML 171K
26: R5 Consolidated balance sheets (Parenthetical) HTML 64K
27: R6 Consolidated statements of cash flows HTML 160K
28: R7 Consolidated statements of shareholders' equity HTML 124K
29: R8 The Company, basis of presentation and significant HTML 317K
accounting policies
30: R9 Significant judgments and sources of estimation HTML 211K
uncertainties
31: R10 Acquisitions, business combinations, investments HTML 86K
(including debt securities), purchases of
intangible assets, divestitures and sale of debt
securities
32: R11 Disposal groups classified as held for sale HTML 84K
33: R12 Notes to the consolidated statements of income HTML 441K
34: R13 Related party transactions HTML 201K
35: R14 Cash and cash equivalents HTML 66K
36: R15 Trade accounts and other receivables from HTML 198K
unrelated parties
37: R16 Inventories HTML 69K
38: R17 Other current financial and non-financial assets HTML 91K
39: R18 Property, plant and equipment HTML 271K
40: R19 Intangible assets and goodwill HTML 469K
41: R20 Interests in associates HTML 130K
42: R21 Other non-current financial assets HTML 71K
43: R22 Current provisions and other current financial and HTML 135K
non-financial liabilities
44: R23 Short-term debt HTML 72K
45: R24 Long-term debt HTML 153K
46: R25 Non-current provisions and other non-current HTML 135K
financial and non-financial liabilities
47: R26 Employee benefit plans HTML 299K
48: R27 Shareholders' equity HTML 83K
49: R28 Capital management HTML 84K
50: R29 Earnings per share HTML 76K
51: R30 Share-based plans HTML 217K
52: R31 Leases HTML 252K
53: R32 Commitments and contingencies HTML 91K
54: R33 Financial instruments HTML 651K
55: R34 Other comprehensive income (Loss) HTML 149K
56: R35 Supplementary cash flow information HTML 203K
57: R36 Segment and corporate information HTML 289K
58: R37 Subsequent events HTML 59K
59: R38 Compensation of the Management Board and the HTML 63K
Supervisory Board
60: R39 Principal accountant fees and services HTML 91K
61: R40 The Company, basis of presentation and significant HTML 327K
accounting policies (Policies)
62: R41 The Company, basis of presentation and significant HTML 228K
accounting policies (Tables)
63: R42 Significant judgments and sources of estimation HTML 173K
uncertainties (Tables)
64: R43 Acquisitions, business combinations, investments HTML 75K
(Including Debt Securities), Purchases of
Intangible Assets, Divestitures and Sale of Debt
Securities (Tables)
65: R44 Disposal groups classified as held for sale HTML 78K
(Tables)
66: R45 Notes to the consolidated statements of income HTML 439K
(Tables)
67: R46 Related party transactions (Tables) HTML 189K
68: R47 Cash and cash equivalents (Tables) HTML 66K
69: R48 Trade accounts and other receivables from HTML 199K
unrelated parties (Tables)
70: R49 Inventories (Tables) HTML 67K
71: R50 Other current financial and non-financial assets HTML 90K
(Tables)
72: R51 Property, plant and equipment (Tables) HTML 271K
73: R52 Intangible assets and goodwill (Tables) HTML 470K
74: R53 Interests in associates (Tables) HTML 130K
75: R54 Other non-current financial assets (Tables) HTML 70K
76: R55 Current provisions and other current financial and HTML 133K
non-financial liabilities (Tables)
77: R56 Short-term debt (Tables) HTML 68K
78: R57 Long-term debt (Tables) HTML 148K
79: R58 Non-current provisions and other non-current HTML 135K
financial and non-financial liabilities (Tables)
80: R59 Employee benefit plans (Tables) HTML 292K
81: R60 Capital management (Tables) HTML 82K
82: R61 Earnings per share (Tables) HTML 76K
83: R62 Share-based plans (Tables) HTML 196K
84: R63 Leases (Tables) HTML 249K
85: R64 Financial instruments (Tables) HTML 639K
86: R65 Other comprehensive income (Loss) (Tables) HTML 148K
87: R66 Supplementary cash flow information (Tables) HTML 203K
88: R67 Segment and corporate information (Tables) HTML 285K
89: R68 Principal accountant fees and services (Tables) HTML 87K
90: R69 The Company, basis of presentation and significant HTML 137K
accounting policies (Details)
91: R70 The Company, basis of presentation and significant HTML 90K
accounting policies - The Company's interest in
subsidiaries (Details)
92: R71 The Company, basis of presentation and significant HTML 69K
accounting policies - Property, plant and
equipment (Details)
93: R72 The Company, basis of presentation and significant HTML 75K
accounting policies - Intangible assets and
goodwill (Details)
94: R73 The Company, basis of presentation and significant HTML 60K
accounting policies - Foreign currency translation
(Details)
95: R74 The Company, basis of presentation and significant HTML 61K
accounting policies - Capitalized interest
(Details)
96: R75 The Company, basis of presentation and significant HTML 60K
accounting policies - Concentration of risk
(Details)
97: R76 The Company, basis of presentation and significant HTML 66K
accounting policies - Recent pronouncements
(Details)
98: R77 Significant judgments and sources of estimation HTML 154K
uncertainties - Recoverability of goodwill and
intangible assets (Details)
99: R78 Significant judgments and sources of estimation HTML 73K
uncertainties - Trade accounts and other
receivables from unrelated parties and expected
credit losses (Details)
100: R79 Significant judgments and sources of estimation HTML 73K
uncertainties - Percentage of Accounts Receivable
(Details)
101: R80 Acquisitions, business combinations, investments HTML 82K
(including debt securities), purchases of
intangible assets, divestitures and sale of debt
securities - Acquisitions (Details)
102: R81 Acquisitions, business combinations, investments HTML 73K
(Including Debt Securities), Purchases of
Intangible Assets, Divestitures and Sale of Debt
Securities (Details)
103: R82 Acquisitions, business combinations, investments HTML 82K
(including debt securities) and purchases of
intangible assets - Fair Values of Assets Acquired
and Liabilities Assumed (Details)
104: R83 Acquisitions, business combinations, investments HTML 74K
(including debt securities), purchases of
intangible assets, divestitures and sale of debt
securities - Divestitures and sale of debt
securities (Details)
105: R84 Disposal groups classified as held for sale HTML 72K
(Details)
106: R85 Disposal groups classified as held for sale - HTML 94K
Assets and liabilities of disposal groups
classified as held for sale (Details)
107: R86 Notes to the consolidated statements of income - HTML 74K
Revenue (Details)
108: R87 Notes to the consolidated statements of income - HTML 76K
Disaggregation of revenue by categories (Details)
109: R88 Notes to the consolidated statements of income - HTML 66K
Trade accounts receivables and contract
liabilities (Details)
110: R89 Notes to the consolidated statements of income - HTML 68K
Unsatisfied performance obligations (Details)
111: R90 Notes to the consolidated statements of income - HTML 63K
Selling, general and administrative expense
(Details)
112: R91 Notes to the consolidated statements of income - HTML 58K
Research and development expenses (Details)
113: R92 Notes to the consolidated statements of income - HTML 62K
Cost of materials (Details)
114: R93 Notes to the consolidated statements of income - HTML 80K
Personnel expenses (Details)
115: R94 Notes to the consolidated statements of income - HTML 95K
Other operating income and expense (Details)
116: R95 Notes to the consolidated statements of income - HTML 83K
Expenses from strategic transactions and programs
(Details)
117: R96 Notes to the consolidated statements of income - HTML 62K
Net interest (Details)
118: R97 Notes to the consolidated statements of income - HTML 80K
Income taxes geographical (Details)
119: R98 Notes to the consolidated statements of income - HTML 88K
Income taxes reconciliation (Details)
120: R99 Notes to the consolidated statements of income - HTML 95K
Deferred income tax assets and liabilities
(Details)
121: R100 Notes to the consolidated statements of income - HTML 63K
Net deferred income tax assets and liabilities
(Details)
122: R101 Notes to the consolidated statements of income - HTML 95K
Net operating loss carryforwards (Details)
123: R102 Notes to the consolidated statements of income - HTML 68K
Impacts of COVID-19 (Details)
124: R103 Related party transactions - Service agreements HTML 83K
and products - General (Details)
125: R104 Related party transactions - Service agreements HTML 91K
and products with related parties (Details)
126: R105 Related party transactions - Lease Agreements - HTML 87K
Summary (Details)
127: R106 Related party transactions - Financing (Details) HTML 88K
128: R107 Related party transactions - Key management HTML 89K
personnel (Details)
129: R108 Cash and cash equivalents (Details) HTML 65K
130: R109 Trade accounts and other receivables from HTML 81K
unrelated parties (Details)
131: R110 Trade accounts and other receivables from HTML 73K
unrelated parties - Development of expected credit
losses (Details)
132: R111 Trade accounts and other receivables from HTML 88K
unrelated parties - Ageing analysis of trade
accounts and other receivables from unrelated
parties and the allowance for doubtful accounts
(Details)
133: R112 Trade accounts and other receivables from HTML 93K
unrelated parties - Reconciliation of portfolios
of insurance and reinsurance contracts (Details)
134: R113 Inventories (Details) HTML 80K
135: R114 Other current financial and non-financial assets HTML 89K
(Details)
136: R115 Property, plant and equipment (Details) HTML 172K
137: R116 Intangible assets and goodwill - Acquisition or HTML 264K
manufacturing costs of intangible assets and
goodwill (Details)
138: R117 Intangible assets and goodwill - Goodwill and HTML 99K
intangible assets with indefinite useful Life
(Details)
139: R118 Interests in associates (Details) HTML 66K
140: R119 Interests in associates - Summarized balance HTML 74K
sheets (Details)
141: R120 Interests in associates - Reconciliation to HTML 84K
carrying amounts (Net assets) (Details)
142: R121 Interests in associates - Summarized statement of HTML 82K
comprehensive income (Details)
143: R122 Other non-current financial assets (Details) HTML 63K
144: R123 Current provisions and other current financial and HTML 126K
non-financial liabilities (Details)
145: R124 Short-term debt (Details) HTML 89K
146: R125 Long-term debt (Details) HTML 70K
147: R126 Long-term debt - Schuldschein loans (Details) HTML 63K
148: R127 Long-term debt - Bonds (Details) HTML 114K
149: R128 Long-term debt - Accounts Receivable Facility HTML 64K
(Details)
150: R129 Long-term debt - Syndicated Credit Facility and HTML 65K
Others (Details)
151: R130 Non-current provisions and other non-current HTML 124K
financial and non-financial liabilities (Details)
152: R131 Employee benefit plans - Defined benefit pension HTML 99K
plans (Details)
153: R132 Employee benefit plans - Net pension liability HTML 102K
(Details)
154: R133 Employee benefit plans - Pension plan assets and HTML 81K
liabilities (Details)
155: R134 Employee benefit plans - Weighted average HTML 63K
assumptions for benefit obligations (Details)
156: R135 Employee benefit plans - Sensitivity analysis HTML 76K
(Details)
157: R136 Employee benefit plans - Components of net HTML 69K
periodic benefit cost (Details)
158: R137 Employee benefit plans - Weighted average HTML 62K
assumptions for periodic benefit cost (Details)
159: R138 Employee benefit plans - Defined benefit pension HTML 67K
plans - cash outflows (Details)
160: R139 Employee benefit plans - Plan Assets (Details) HTML 91K
161: R140 Employee benefit plans - Plan investment policy HTML 65K
(Details)
162: R141 Employee benefit plans - Defined contribution HTML 75K
plans (Details)
163: R142 Shareholders' equity - Capital stock (Details) HTML 106K
164: R143 Shareholders' equity - Authorized capital HTML 69K
(Details)
165: R144 Shareholders' equity - Conditional capital HTML 79K
(Details)
166: R145 Shareholders' equity - Treasury stock (Details) HTML 59K
167: R146 Shareholders' equity - Dividends (Details) HTML 66K
168: R147 Capital management (Details) HTML 70K
169: R148 Earnings per share (Details) HTML 69K
170: R149 Share-based plans (Details) HTML 159K
171: R150 Share-based plans - Long-term incentive program HTML 75K
2011 (Details)
172: R151 Share-based plans - Information on Holdings under HTML 84K
Share-based Plans (Details)
173: R152 Share-based plans - Stock options activity HTML 75K
(Details)
174: R153 Share-based plans - Stock Options Exercise Price HTML 79K
Range (Details)
175: R154 Share-based Plans - Stock Options Other Disclosure HTML 63K
(Details)
176: R155 Share-based plans - Compensation Expense Related HTML 73K
to Cash-Settled Plans (Details)
177: R156 Leases - Leasing in the consolidated statements of HTML 72K
income (Details)
178: R157 Leases - Leases in the consolidated balance sheets HTML 111K
(Details)
179: R158 Leases - Leasing in the consolidated statements of HTML 67K
cash flows (Details)
180: R159 Commitments and contingencies (Details) HTML 122K
181: R160 Financial instruments - Carrying amount and fair HTML 177K
value (Details)
182: R161 Financial instruments - Fair values of listed and HTML 76K
non-listed equity investments (Details)
183: R162 Financial instruments - Derivative and HTML 117K
non-derivative financial instruments (Details)
184: R163 Financial Instruments - Derivatives financial HTML 67K
risks (Details)
185: R164 Financial Instruments - Foreign exchange risk HTML 65K
management (Details)
186: R165 Financial instruments - Foreign exchange risk HTML 79K
(Details)
187: R166 Financial instruments - Interest rate risk HTML 71K
(Details)
188: R167 Financial instruments - Derivative financial HTML 77K
instruments valuation (Details)
189: R168 Financial instruments - Effect of derivatives on HTML 107K
consolidated financial statements (Details)
190: R169 Financial instruments - Derivatives, cash flow and HTML 60K
credit risk (Details)
191: R170 Financial instruments - Payments agreed by HTML 131K
contracts (Details)
192: R171 Other comprehensive income (Loss) (Details) HTML 128K
193: R172 Supplementary cash flow information (Details) HTML 84K
194: R173 Supplementary cash flow information - HTML 105K
Reconciliation of debt to net cash provided by
(Used In) Financing Activities (Details)
195: R174 Segment and corporate information (Details) HTML 144K
196: R175 Segment and corporate information - Geographic HTML 72K
Information (Details)
197: R176 Compensation of the Management Board and the HTML 94K
Supervisory Board - Compensation of the Management
Board (Details)
198: R177 Compensation of the Management Board and the HTML 62K
Supervisory Board - Compensation of the
Supervisory Board (Details)
199: R178 Principal accountant fees and services (Details) HTML 67K
201: XML IDEA XML File -- Filing Summary XML 401K
204: XML XBRL Instance -- fms-20231231x20f_htm XML 14.18M
200: EXCEL IDEA Workbook of Financial Report Info XLSX 518K
18: EX-101.CAL XBRL Calculations -- fms-20231231_cal XML 476K
19: EX-101.DEF XBRL Definitions -- fms-20231231_def XML 2.14M
20: EX-101.LAB XBRL Labels -- fms-20231231_lab XML 3.58M
21: EX-101.PRE XBRL Presentations -- fms-20231231_pre XML 3.05M
17: EX-101.SCH XBRL Schema -- fms-20231231 XSD 733K
202: JSON XBRL Instance as JSON Data -- MetaLinks 909± 1.55M
203: ZIP XBRL Zipped Folder -- 0001104659-24-025293-xbrl Zip 3.28M
Exhibit 97
|
Global Incentive-Based Compensation Recovery Policy |
Type: | 2 Policy |
| |
Version No.: | 1 |
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Reference No.: | 13929 |
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Scope: | Executives of the FME Group |
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Out of Scope: | n/a |
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Target Group: | n/a |
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Publication Date: | 22/November/2023 |
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Effective Date: | See below |
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Status: | Published |
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Owner’s Department: | Global Legal |
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Approver’s Position: | FME Management Board |
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Approver’s Position: | FME Supervisory Board |
This document is internal and is the sole property of Fresenius Medical Care. It is issued by the Document Owner and is electronically published in the Policy Management database. Printouts of this document are for reference only. The user is always responsible for referring to the Policy Management database for the latest and valid version.
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FOR INTERNAL USE ONLY | Page : 1 of 8 |
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Global Incentive-Based Compensation Recovery Policy |
CONTENT | | ||
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1 | PURPOSE | 3 | |
| | | |
2 | DEFINITIONS | 3 | |
| | | |
3 | REQUIREMENTS / PROCESS | 5 | |
| | | |
| 3.1 | Executives Covered by this Policy | 5 |
| | | |
| 3.2 | Amount of Excess Incentive-Based Compensation Subject to Recovery | 5 |
| | | |
| 3.3 | Administration | 6 |
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| 3.4 | Method of Recovery | 6 |
| | | |
| 3.5 | Impracticability | 7 |
| | | |
| 3.6 | Indemnification; Insurance | 7 |
| | | |
| 3.7 | Effective Date | 7 |
| | | |
| 3.8 | Amendment; Termination | 7 |
| | | |
| 3.9 | Other Recovery Rights | 7 |
| | | |
| 3.10 | Successors | 8 |
| | | |
| 3.11 | Effect of Conversion of Legal Form | 8 |
| | | |
4 | RELATED INTERNAL CONTROLS | 8 | |
| | | |
5 | RELATED DOCUMENTS | 8 | |
| | | |
6 | ANNEXES | 8 | |
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FOR INTERNAL USE ONLY | Page : 2 of 8 |
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Global Incentive-Based Compensation Recovery Policy |
1 | PURPOSE |
The Supervisory Board (the “Supervisory Board”) of Fresenius Medical Care Management AG, the General Partner of the Company (the “General Partner”), and the Management Board of the General Partner (the “Management Board”), as the respective competent bodies to determine and award the compensation of the members of the Management Board and of persons employed by the Company, including the Company’s “Executive Officers” (as defined herein), hereby adopt the policy set forth herein (the “Policy”) to provide for the recovery of certain executive compensation in the event of an “Accounting Restatement” (as defined in this Policy) resulting from material noncompliance with financial reporting requirements under the U.S. federal securities laws. This Policy is designed to comply with Section 10D of the Securities Exchange Act of 1934 (the “Exchange Act”), Rule 10D-1 adopted by the Securities and Exchange Commission (the “Commission”) thereunder, and Rule 303A.14 of the New York Stock Exchange (“NYSE”) Listed Company Rules.
2 | DEFINITIONS |
The terms used throughout this document are defined as per the Common Definition Framework. The following definitions are specific to this document:
Term | Definition |
Accounting Restatement | “Accounting Restatement” means a revision of financial statements previously issued by the Company constituting a restatement of such financial statements within the meaning of International Financial Reporting Standards (“IFRS”) as developed and maintained by the International Accounting Standards Board (“ IASB”) and the applicable guidance issued by the IASB with respect to IFRS, or such other internationally recognized set of accounting standards then being applied by the Company in the preparation of its financial statements filed with the Commission. Without limiting the generality of the foregoing, “Accounting Restatement” shall include (1) any required restatement to correct an error in previously issued financial statements that is material to the previously issued financial statements, or (2) a required restatement to correct an error in previously issued financial statements that is not material to previously issued financial statements but would result in a material misstatement if (a) the error were left uncorrected in the current report or (b) were recognized in the current period. Notwithstanding the foregoing, and for avoidance of doubt, none of the following shall constitute an Accounting Restatement: a.Retrospective application of a change in accounting principle; b. Retrospective revision to reportable segment information due to a change in the structure of the Company’s internal organization; c. Retrospective reclassification due to a discontinued operation; d. Retrospective application of a change in reporting entity, such as from a reorganization of entities under common control; e. Retrospective adjustment to provisional amounts in connection with a prior business combination; or f. Retrospective revision for stock splits, reverse stock splits, stock dividends or other changes in capital structure. |
Board(s) | “Board” and “Boards” shall mean any or all of the Supervisory Board, the KGaA Supervisory Board (as defined below), and the Management Board, the context shall require. |
Executive Officer | “Executive Officer” means any member of the Supervisory Board, any member of the Management Board (including, for the avoidance of doubt, the Company’s Chief Executive Officer and Chief Financial Officer), any member of the Supervisory Board of the Company (the “KGaA Supervisory Board,” the Company’s Chief Accounting Officer, and any officer or other person in charge of a principal business unit, division or function (such as sales, administration or finance) for the Company, any officer or other person who performs a policy-making function for the Company, and any person of a subsidiary of the Company who performs such a policy -making function for the Company. The determination of (i) the persons (other than Board members) in charge of a principal business unit, division or function for the Company, and (ii) the persons |
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Global Incentive-Based Compensation Recovery Policy |
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| (including persons of a subsidiary of the Company) who perform a policy -making function for the Company and are thus Executive Officers for purposes of this Policy, shall be made by the Management Board. |
Financial Reporting Measures | “Financial Reporting Measures ” means measures that are determined and presented in accordance with the accounting principles used in preparing the Company’s financial statements, and any measures that are derived wholly or in part from such measures. A financial reporting measure used to determine the grant, earning or vesting of Incentive-Based Compensation need not be presented within the Company’s financial statements or included in a filing by the Company with the Commission. Financial Reporting Measures include, but are not limited to, the following accounting-based measures, and measures derived from such accounting-based measures: ◾ Revenues; ◾ Net income; ◾ Operating
income; ◾ Profitability of one or more reportable segments; ◾ EBITDA; ◾ Funds from operations and adjusted funds from operations; ◾ Liquidity measures, such as working capital and operating cash flow; ◾ Return
measures (e.g., ROIC, return on assets); ◾ Financial ratios; ◾ Earnings measures, such as earnings per share; ◾ Share price; and ◾ Total shareholder return. |
Incentive-Based Compensation | “Incentive-Based Compensation” means any compensation that is granted, earned, or vested based wholly or in part on the attainment of a Financial Reporting Measure. Incentive-Based Compensation may include, but is not limited to: a. Non-equity incentive plan awards that are earned based wholly or in part on satisfying a financial reporting measure performance goal; b. Bonuses paid from a “bonus pool,” the size of which is determined based wholly or in part on satisfying a financial reporting measure performance goal; c.Other cash awards based on satisfaction of a financial reporting measure performance goal; d.Restricted stock, restricted stock units, performance share units, stock options, and stock appreciation rights that are granted or become vested based wholly or in part on satisfying a financial reporting measure performance goal; and e. Proceeds received upon the sale of shares acquired through an incentive plan that were granted or vested based wholly or in part on satisfying a financial reporting measure performance goal (including shares acquired with the proceeds of other forms of Incentive-Based Compensation pursuant to the terms of the applicable plan). None of the following constitute Incentive-Based Compensation: a. Salaries; b. Bonuses paid solely at the discretion of the Board and not paid from a “bonus pool” that is determined by satisfying a financial reporting measure performance goal; c. Bonuses paid solely upon satisfying one or more subjective standards or completion of a specified employment period; d. Non-equity incentive plan awards earned solely upon satisfying one or more strategic measures or objectives (e.g., consummating a merger or divestiture), or operational measures (e.g., completion of a project, or increase in market share); and e. Equity awards for which (A) the grant is not contingent upon achieving any financial reporting measure performance goal and (B) vesting is contingent solely upon completion of a specified employment period and/or attaining one or more nonfinancial reporting measures. |
Inception Date | “Inception Date” means October 2, 2023, the effective date of Rule 313A.14 of the NYSE Listed Company Rules. |
Independent | “Independent” means, with respect to a member of the Supervisory Board, that the Supervisory Board affirmatively determines that the member has no material relationship with the Company (either directly or as a partner, shareholder or officer of an organization that has a relationship with the Company). In making such determination, the Supervisory Board shall consider all factors specifically relevant to |
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| determining whether a member of the Supervisory Board has a relationship to the Company which is material to that member’s ability to be independent from management in connection with such member’s duties under this Policy, including, but not limited to: a. the source of compensation of such member, including any salary, consulting, advisory or other compensatory fee paid by the Company to such member; and b. whether such member is affiliated with the Company, a subsidiary of the Company or an affiliate of a subsidiary of the Company. Without limiting the generality of the foregoing, a member of the Supervisory Board serving as such in accordance with the requirements of the German Co-Determination Act (Mitbestimmungsgesetz), shall be conclusively deemed not to be Independent for purposes of this Policy. |
Received | “Received” means the time at which an Executive Officer shall be deemed to have received Incentive-Based Compensation, which shall be the fiscal period of the Company during which the Financial Reporting Measure specified in the Incentive-Based Compensation award is attained, even if the payment or grant of the Incentive - Based Compensation occurs after the end of that period. |
3 | REQUIREMENTS / PROCESS |
In the event the Company is required to prepare an Accounting Restatement due to material noncompliance by the Company with any financial reporting requirement under the U.S. federal securities laws, the Company will recover, reasonably promptly and to the fullest extent required by this Policy and applicable law, all excess Incentive-Based Compensation erroneously awarded by the Company and/or its subsidiaries, as the case may be. Such recovery shall be sought with respect to the periods for which, and from the Executive Officers from whom, such recovery is required by this Policy and applicable law.
This Policy shall apply to require recovery of excess Incentive-Based Compensation Received by an Executive Officer:
a. | after beginning service as an Executive Officer of the Company; |
b. | who served as an Executive Officer at any time during the applicable performance period for that Incentive-Based Compensation; |
c. | while a class of securities of the Company is listed on the NYSE, or on another U.S. national securities exchange; and |
d. | during the three completed fiscal years immediately preceding the date that the Company is required to prepare an Accounting Restatement, plus any transition period resulting from a change in the Company’s fiscal year within or immediately following such three completed fiscal years. |
3.1 | Executives Covered by this Policy |
This Policy applies to the current and former members of the Supervisory Board, the KGaA Supervisory Board, and the Management Board, and to the Company's other current and former Executive Officers (other than Management Board members) determined to be such by the Management Board in accordance with and consistent with the definition of such term set forth herein, Rule 10D-1 of the Commission and Rule 313A.14 of the NYSE Listed Company Rules.
3.2 | Amount of Excess Incentive-Based Compensation Subject to Recovery |
The amount of excess Incentive-Based Compensation recoverable from an Executive Officer of the Company in the event of an Accounting Restatement will be the amount of Incentive-Based Compensation Received by such Executive Officer, based on the relevant Financial Reporting Measure or Measures presented prior to the Accounting Restatement, that exceeds the amount
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Global Incentive-Based Compensation Recovery Policy |
of Incentive-Based Compensation that such Executive Officer otherwise would have Received had such amount been determined based on the restated amounts.
Any such recoverable amount shall be computed without regard to taxes paid or payable on the excess amount. However, if and to the extent that the application of this Policy would provide for recovery of Incentive-Based Compensation that the Company has recovered or may recover from an Executive Officer pursuant to Section 304 of the Sarbanes -Oxley Act of 2002, the amount such Executive Officer has actually reimbursed the Company for such recovery shall be credited to the recovery required under this Policy.
If the applicable Board cannot determine the amount of excess Incentive-Based Compensation received by any Executive Office by means of a mathematical calculation directly from the information in the Accounting Restatement, then it will make its determination based on a reasonable estimate of the effect of the Accounting Restatement on the applicable measure.
3.3 | Administration |
Except as set forth in this Policy under the heading “Impracticability,” this Policy shall be administered by the Supervisory Board with respect to members of the Supervisory Board (if applicable) and members of the Management Board, and by the Management Board with respect to other Executive Officers covered by the Policy. Subject to the foregoing limitation with respect to Impracticability, the Supervisory Board may delegate its responsibility for the administration of this Policy to the Human Resources Committee of the Supervisory Board. To the extent responsibility for such administration may be delegated to it by the Supervisory Board, references herein to the Supervisory Board shall be deemed references to its Human Resources Committee. Any determinations made by the applicable Board in the administration of this Policy shall be final and binding on all affected individuals.
In administering this Policy, the Supervisory Board and the Management Board are authorized to interpret and construe this Policy and to make all determinations necessary, appropriate, or advisable for the administration of this Policy. It is intended that this Policy be interpreted and applied consistently to members of the respective Boards and other Executive Officers and in a manner that is consistent with the requirements of Section 10D of the Exchange Act, Rule 10D-1 of the Commission thereunder and Rule 313A.14 of the NYSE Listed Company Rules, as each may in effect from time to time.
3.4 | Method of Recovery |
The applicable Board will determine, in its sole discretion, the method for recovering Incentive-Based Compensation hereunder. Such methods may vary by type of compensation or compensation system, and the applicable Board’s discretion shall include the discretion to utilize different means of recovery in different circumstances. The recovery methods chosen by a Board may include, without limitation:
a. | requiring reimbursement of cash Incentive-Based Compensation previously paid; |
b. | seeking recovery of any gain realized on the vesting, exercise, settlement, sale, transfer, or other disposition of any equity-based awards; |
c. | offsetting the recovered amount from any compensation otherwise owed by the Company or a subsidiary of the Company, as the case may be, to the relevant Executive Officer; |
d. | cancelling outstanding vested or unvested equity awards; and/or |
e. | taking any other remedial and recovery action permitted by applicable law, as determined by the applicable Board. |
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Global Incentive-Based Compensation Recovery Policy |
3.5 | Impracticability |
The Supervisory Board or the Management Board, as the case may be, shall recover any excess Incentive-Based Compensation in accordance with this Policy unless such recovery would be “impracticable,” within the meaning of paragraph (b)(1)(iv)(A), (b)(1)(iv)(B) or (b)(1)(iv)(C) of Rule 10D-1 of the Commission and Rule 313A.14 of the NYSE Listed Company Rules. Anything in this Policy to the contrary notwithstanding, any determination to forego recovery of excess Incentive-Based Compensation on the ground of impracticability, including any required determination with respect to satisfaction of any of the applicable conditions set forth in paragraph (b)(1)(iv)(A), (b)(1)(iv)(B) or (b)(1)(iv)(C) of Rule 10D-1 (including, in each case and for the avoidance of doubt, any determination with respect to the impracticability of recovery of excess Incentive-Based Compensation paid to Executive Officers other than Management Board members), shall be made solely by a majority of the Independent directors serving on the Supervisory Board.
3.6 | Indemnification; Insurance |
The Company shall not indemnify any Board member or any other Executive Officer against the loss of any erroneously awarded Incentive-Based Compensation recovered by the Company. The Company shall neither provide for reimbursement of any Executive Officer for any such recovery by, or from the proceeds of, any directors and officers liability insurance policy maintained by the Company, nor pay or reimburse any Executive Officer for the premium costs of any insurance policy obtained directly by the Executive Officer insuring against such recovery.
3.7 | Effective Date |
This Policy shall be effective as of the date it is adopted by the Supervisory Board or the Management Board, as the case may be (in each case, the “Effective Date”) and shall apply to Incentive-Based Compensation that is Received by an Executive Officer on or after the Inception Date.
3.8 | Amendment; Termination |
This Policy may be amended from time to time by action of the Supervisory Board and the Management Board, and shall be amended as necessary to comply with Section 10D of the Exchange Act, Rule 10D-1 of the Commission thereunder, and the Listed Company Rules of the NYSE or such other U.S. national stock exchange on which the Company’s shares, or American Depositary Shares representing such shares, may be listed. Subject to such statutory provisions and rules, this Policy may be terminated by action of the Supervisory Board and the Management Board at any time.
3.9 | Other Recovery Rights |
It is intended that this Policy will be applied to the fullest extent required by applicable law. The applicable Board may require that any employment agreement, equity award agreement, performance share award or similar agreement entered into on or after the Effective Date, or any plan providing for Incentive-based Compensation adopted after the Effective Date shall, as a condition to the grant of any benefit thereunder, require the Executive Officer receiving same to agree to abide by the terms of this Policy. Save as provided above under the heading, “Amount of Excess Incentive-Based Compensation Subject to Recovery,” any right of recovery under this Policy is in addition to, and not in lieu of, any other remedies or rights of recovery that may be available to the Company pursuant to the terms of any applicable law or
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regulation, or any similar policy in any employment agreement, equity award agreement, performance share award, or similar agreement and any other legal remedies available to the Company.
3.10 | Successors |
This Policy shall be binding and enforceable against all Executive Officers and their respective beneficiaries, heirs, executors, administrators or other legal representatives.
3.11 | Effect of Conversion of Legal Form |
Upon the registration in the Commercial Register (Handelsregister) of the local court (Amtsgericht) of Hof (Saale), Germany of the proposed conversion of the legal form of the Company from a partnership limited by shares (Kommanditgesellschaft auf Aktien) to a stock corporation (Aktiengesellschaft) under German law (the “Conversion”), this Policy shall continue in effect with respect to the present and former Executive Officers of the Company. From and after the effective date of the Conversion, pending adoption of a policy for recovery of excess Incentive-Based Compensation received by Executive Officers of the stock corporation, (i) “Company” shall mean the Company in the legal form of a stock corporation, (ii) “Supervisory Board” shall the Supervisory Board of the Company, and (iii) “Management Board” shall mean the Management Board of the Company, provided, that this Policy shall continue to require recovery of excess Incentive-based Compensation awarded to Executive Officers prior to the Conversion to the same extent as if the Conversion had not occurred.
4 | RELATED INTERNAL CONTROLS |
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5 | RELATED DOCUMENTS |
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6 | ANNEXES |
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| This ‘20-F’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
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| Filed on: | 2/20/24 | 6-K | ||
| For Period end: | 12/31/23 | |||
| 10/2/23 | ||||
| List all Filings | ||||
