Merck 2014 Annual Report Download - page 145

140 GROUP MANAGEMENT REPORT → Report in accordance with Section 315 (4) of the German Commercial Code (HGB)
REPORT IN ACCORDANCE WITH SECTION 315 (4)
OF THE GERMAN COMMERCIAL CODE (HGB)
The following information is provided in accordance with Section
315(4) of the German Commercial Code and the explanatory report
pursuant to Section 176 (1) sentence 1 of the German Stock
Corporation Act (AktG).
As of the balance sheet date, the company’s subscribed capital
is divided into 129,242,251 no-par value bearer shares plus one
registered share. Each share therefore corresponds to € 1.30 of
the share capital. The holder of the registered share is E. Merck
Beteiligungen KG, Darmstadt, Germany. It is entitled and obliged
to appoint one-third of the members of the Supervisory Board
representing the limited liability shareholders. If the holder of the
registered share is a general partner, he or she has no such right of
appointment. The transfer of the registered share requires the
company’s approval. The approval is granted at the sole discretion
of the personally liable general partner with an equity interest,
namely E.Merck KG, Darmstadt, Germany.
Pursuant to the information on voting rights submitted to us
in accordance with the German Securities Trading Act (WpHG), on
December 31, 2014 no shareholders owned direct or indirect
invest ments exceeding more than 10 % of the voting rights.
According to the Articles of Association of Merck KGaA,
Darmstadt, Germany, the general partners not holding an equity
interest who form the Executive Board are admitted by E.Merck
KG, Darmstadt, Germany,with the consent of a simple majority of
the other general partners. A person may only be a general partner
not holding an equity interest if he or she is also a general partner
of E.Merck KG, Darmstadt, Germany. In addition, at the proposal
of E.Merck KG, Darmstadt, Germany,and with the approval of all
general partners not holding an equity interest, further persons
who are not general partners not holding an equity interest may
be appointed to the Executive Board.
The Articles of Association can be amended by a resolution by
the Annual Meeting that requires the approval of the general part-
ners. The resolutions of the General Meeting are, notwithstanding
any statutory provisions to the contrary, adopted by a simple
majority of the votes cast. Where the law requires a capital major-
ity in addition to the voting majority, resolutions are adopted by
a simple majority of the share capital represented in the vote. The
Articles of Association of the company specify the authorized
share capital. The Executive Board is authorized, with the approval
of the Supervisory Board and of E.Merck KG, Darmstadt, Germany,
to increase the share capital on one or several occasions until
April26, 2018 by up to a total of €56,521,124.19 by issuing new
shares against cash and / or contributions in kind (Authorized
Capital). The Executive Board is authorized to exclude, with the
approval of the Supervisory Board, the statutory subscription right
of the limited liability shareholders in the case of capital increases
against cash contributions if the issue price of the new shares is
not significantly lower than the stock exchange price of already
listed shares carrying the
same rights, as defined in section 203(1)
and (2) and section 186(3)
sentence4 of the German Stock Corpo-
ration Act (AktG), at the time when the Executive Board finally
fixes the issue price, and if the proportion of the share capital
represented by the new shares for which the subscription right is
excluded does not exceed 10 % of the share capital available at the
time of the resolution of the Annual General Meeting or – if this
amount is lower – of the share capital available at the time of
exercising this authorization. This upper limit shall be reduced by
the prorated amount of shares that are sold during the term of the
authorized capital under exclusion of shareholders’ subscription
rights pursuant to section 71 (1) no. 8 sentence 5 and section
186(3) sentence4 of the German Stock Corporation Act, as well
as shares that must be issued to redeem option or convertible
bonds, as long as the bonds have been issued during the term of
this authorization under exclusion of subscription rights. In addi-
tion, with the approval of the Supervisory Board, the subscription
right of the shareholders can be excluded in order to enable
E.Merck KG, Darmstadt, Germany, to exercise its right pursuant to
Article 32 (3) of the Articles of Association to participate in a
capital increase by issuing shares or freely transferable share sub-
scription rights and to enable E.Merck KG, Darmstadt, Germany,
to exercise its right pursuant to Article 33 of the Articles of
Association to convert its equity interest into share capital. More-
over, with the approval of the Supervisory Board, the subscription
right of the shareholders can be excluded as far as this is neces-
sary, in order to grant subscription rights for new shares to holders
of warrants and convertible bonds issued by the company or its
subsidiaries, to the extent to which they would be entitled after
exercising their option and conversion rights or fulfilling their
option and conversion obligations. Lastly, with the approval of
the Supervisory Board, the subscription right of the shareholders
can be excluded in order to exclude fractional amounts from the
subscription right.
The Articles of Association also encompass contingent capital.
The share capital is contingently increased by up to €66,406,298.40
divided into 51,081,768 shares (Contingent Capital I). The con-
tingent capital increase serves to grant exchange rights to
E.Merck KG, Darmstadt, Germany,in accordance with Article33
of the Articles of Association to enable the conversion of its equity
interest. The shares carry dividend rights from the beginning of