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Corporate Governance Publication of DISCLAIMER Merck KGaA, Darmstadt, Germany. In the United States and Canada the subsidiaries of Merck KGaA, Darmstadt, Germany operate under the umbrella brand EMD. 44 | Merck Annual Report 2002 Corporate Governance Joint Report of the Executive Board and the Supervisory Board according to section 3.10 of the German Corporate Governance Code The German Corporate Governance Code, which is also to be applied to Merck as a “Kommanditgesellschaft auf Aktien” (partnership limited by shares), entered into effect in 2002. Since this Code is geared exclusively towards the conditions at an Aktiengesellschaft (German Stock Corporation), Merck KGaA had to inde- pendently examine and decide how it can be applied logically to serve the interests of the shareholders. The Executive Board and Supervisory Board of Merck KGaA, as well as the company’s general partner, E. Merck, have discussed the Code in detail and are striving to implement the Code’s recommendations at Merck KGaA as fully as possible. In order to enable the shareholders to compare the situation at other companies more easily, we have decid- ed to base corporate governance on the conduct recommendations made by the Code Commission relating to management and supervision (governance) and to forego having our own code, which is also permissi- ble. In the following, we explain the legal conditions of a partnership limited by shares in general and of Merck KGaA in particular. On this basis, we will determine our compliance with the recommendations of the Code and ascertain any remaining exceptions. The Foreword of the German Corporate Governance Code states that: “The Code clarifies the rights of share- holders, who provide the company with the required equity capital and who carry the entrepreneurial risk.” The following gives a general explanation – in accordance with this foreword – of the KGaA company form followed by the specific situation at Merck. Kommanditgesellschaft auf Aktien “The Kommanditgesellschaft auf Aktien (KGaA – partnership limited by shares) is a company with its own legal personality, at which at least one partner has unlimited liability for the company’s creditors (general partner) and the others hold an interest in the share capital without any personal liability for the company’s debts (limited liability shareholders)” (section 278 (1) AktG). It is therefore a hybrid of an Aktiengesellschaft (German Stock Corporation) and a Kommanditgesellschaft with a focus on stock corporation law. Striking differences to the Aktiengesellschaft include the presence of general partners, who essentially also manage the company’s business activities, the lack of a board of directors, and the restriction of rights and obliga- tions of the supervisory board. In particular, the supervisory board is not responsible for appointing gener- al partners or for regulating the terms and conditions of contracts, while at the Aktiengesellschaft it appoints the board; it also does not have the authority to issue rules of procedure for the general partners or a catalog of business transactions requiring approval. The KGaA also has some peculiarities with regard to the Annual General Meeting; for example, many of the resolutions made require the approval of the general partners (section 285 (2) AktG), including the adoption of the annual financial statements (section 286 (1) AktG). Merck KGaA The general partner E. Merck OHG holds 73.8% of the total capital of Merck KGaA (equity interest), the lim- ited liability shareholders hold the remainder, which is divided into shares (share capital). Both groups together thus provide – in accordance with the Foreword to the Code – “the company with the required equi- ty capital and… carry the entrepreneurial risk”. E. Merck is excluded from the management of business activ- ities. The general partners with no equity interest (Executive Board), on the other hand, manage business activities. Due to its substantial capital investment and unlimited personal liability, E. Merck is an influen- tial authority with a strong interest in compliance with procedures and efficiency of business operations at Merck KGaA. E. Merck appoints and dismisses the Executive Board. E. Merck created the tools necessary – in addition to the expertise and activities of the Supervisory Board – to ensure that the Executive Board is monitored and advised. This applies primarily to the Board of Partners of E. Merck. Corporate Governance/Structure of the Merck Group | 45 This is illustrated by the chart oppo- Total capital Merck KGaA site. EUR 447,200,000 A large number of the conduct recommendations contained in the Share capital Equity interest Code, which is geared towards EUR 117,000,000 EUR 330,200,000 Aktiengesellschaften, can gener- ally only be applied to a KGaA as Limited liability General partner appropriate. shareholders E. Merck (with equity interest) Based on the provisions of the Annual General Meeting German Stock Corporation Act, the Articles of Incorporation of Board of Partners Supervisory Board E. Merck Merck KGaA and the rules of pro- 12 members 9 members cedure of the various committees, (sections 1, 7 MitbestG) Merck KGaA has a set of regula- (Co-determination Act) Human tions for the Executive Board and Finance Resources its supervision that meet the Committee Committee requirements of the Code. The investors, who carry the entrepre- neurial risk, are protected as fore- General partners with no equity interest seen by the Code. (with power of management and representation) = Executive Board Merck KGaA Deviations from the Corporate Governance Code: 1. Contrary to section 3.8 (2), the Directors & Officers insurance policy, which Merck KGaA maintains for its committee members, does not include self-retention. 2. Contrary to section 5.4.5 (1), the committee members are not remunerated separately Structure Merck KGaA of the Merck Group by Major Merck Generics Merck Consumer Health EMD, Inc., Merck S.A., Holding GmbH, Care Holding GmbH, Merck & Cie. KG, USA France Companies Germany Germany Switzerland Merck Ltd., Merck Selbst- EMD Pharma- Merck Santé S.A., Alphapharm Pty. Ltd., United Kingdom medikation ceuticals, Inc., USA France Australia GmbH, Germany Merck S.A., Spain EMD Lexigen Merck Chimie S.A., Genpharm, Inc., Seven Seas Ltd., Research Center Corp., France Canada United Kingdom USA Merck S.A., Mexico Merck Génériques Merck Médication Dey, Inc., Lab. Théramex S.A.M., Merck S.A. Indústrias France S.C.S., Familiale S.A.R.L., USA Monaco Químicas, Brazil France France Merck Ltd., EMD Chemicals, Inc., Other Generics (UK) Ltd., Japan USA Companies United Kingdom Merck Ltd., India Other Companies Merck-Kanto Advanced Chemicals Ltd., Taiwan VWR International, Inc., USA Other Companies This simplified structure shows only the major companies of the Merck Group. 204 companies in 53 countries are fully consolidated in the financial statements of the Merck Group. 46 | Merck Annual Report 2002 Report of the Supervisory Board During fiscal year 2002, the Executive Board provided the Supervisory Board with regular written and verbal reports on the business development of Merck KGaA and the Merck Group. In particular, the Supervisory Board was informed about the market and sales situation of the company against the background of the macroeconomic envi- ronment, about the financial position of the company and its subsidiaries, their earnings development and company planning. Important business policy matters were discussed in four joint meetings with the Executive Board. Together with the Executive Board and the company’s general partner E. Merck, the Supervisory Board worked on the imple- mentation of the recommendations of the German Corporate Governance Code. The joint report of the Executive Board and the Supervisory Board contains more details on this. The annual financial statements of Merck KGaA, the consolidated financial statements of the Merck Group, and the management reports for Merck KGaA and the Merck Group, including the accounting, were audited by KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft Wirtschaftsprüfungsgesellschaft. The auditors issued an unquali- fied audit certificate on the annual financial statements and management report for Merck KGaA in accordance with German Auditing Standards. The auditors issued the auditor’s certificate, reproduced in the Annual Report of the Merck Group, in accordance with International Financial Reporting Standards as well as German Auditing Standards, for the consolidated financial statements prepared in accordance with International Accounting Standards. In addi- tion, the auditors audited the calculation of Merck KGaA’s participation in the profits of E. Merck in accordance with Art. 27 (3) of the Articles of Incorporation. The annual financial statements of Merck KGaA, the consolidated finan- cial statements of the Merck Group, the management reports for Merck KGaA and the Merck Group, and the proposal by the Executive Board for the appropriation of net retained profits were presented and distributed to the Supervisory Board, together with the audit reports of the auditors. In accordance with Art. 14 (2) of the Articles of Incorporation, the Supervisory Board also examined the annual financial statements of Merck KGaA, the management report for Merck KGaA, the proposal for the appropriation of net retained profits, and the auditor’s report presented in accordance with Art. 27 (3) of the Articles of Incorporation. It also examined the consolidated financial statements of the Merck Group,
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