Articles of Association of BayWa AG
As amended: July 2020
Dear Readers,
In your hands you hold the current Articles of Association of BayWa Aktiengesellschaft, Munich, Germany, which were adopted as amended by the Annual General Meeting. For us – for the Board of Management and employees alike – these Articles of Association are both a legal and personal obligation to guide BayWa and help it to develop in accordance with its economic and social significance.
Our Articles of Association therefore reflect both our business model and the cooperative spirit of BayWa AG that sets us apart from many other listed companies.
The Articles of Association demonstrate that BayWa AG is rising to new challenges with a firm eye on the future while also remaining closely connected to its roots and the cooperative philosophy.
Yours faithfully,
Klaus Josef Lutz
Chief Executive Officer of BayWa AG
Articles of Association of BayWa AG
I. Name and Registered Office 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. Administration and Management, §§ 8-24 a) Board of Management, §§ 9-12 a) Supervisory Board, §§ 13-20 a) Annual General Meeting, §§ 21-24
V. Financial Year, Accounting and Appropriation of Retained Earnings, §§ 25-27
VI. Cooperative Council, §§ 28-31
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I. Name and Registered Office of the Company; Object of the Company
§ 1 – Name and registered office
The name of the company is: BayWa Aktiengesellschaft.
The company’s registered office is located in Munich, Germany.
§ 2 – Object of the company
1. The company runs an international group of companies and operates in the following business areas both independently and through the companies it manages: a) agriculture, in particular the production, collection, marketing and trading of agricultural, forestry and food products, including agricultural inputs, as well as trade in capital goods for agriculture, forestry, municipal services and commerce; b) construction and landscaping, in particular the marketing and trading of building materials and gardening or landscaping products, as well as the provision of construction, construction planning, construction logistics and general contracting services; c) energy, in particular the trading of fossil and renewable fuels and lubricants, as well as the development, production, marketing and trading of technologies and/or technology concepts, primarily in the field of renewable energies; d) the provision of services related to the aforementioned business areas, in particular advisory, brokerage, planning, logistics and financing services, as well as the performing of Group management activities.
2. The company is entitled to enter into all transactions and to take all measures that are related to the object of the company described under § 2 clause 1 or appear directly or indirectly beneficial thereto, including in particular the conclusion of company agreements, joint venture agreements and similar agreements. The company may set up branch offices and subsidiaries domestically and abroad, and may acquire or invest in other companies domestically and abroad. It may spin off its operations in whole or in part to affiliated companies.
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II. Announcements and Information; Place of Jurisdiction
§ 3 – Announcements and information
1. The company shall make its announcements in the German Federal Gazette [Bundesanzeiger].
2. Information for shareholders may also be provided through electronic media.
§ 4 – Place of jurisdiction
The place of jurisdiction for all disputes between shareholders and the company or its executive and supervisory bodies is Munich, Germany.
III. Share Capital and Shares
§ 5 – Share capital
1. The company’s share capital amounts to €90,314,398.72 and is divided into 35,279,062 registered shares (no-par value shares).
2. Subject to the approval of the Supervisory Board, the Board of Management is authorised to raise the share capital one or several times on or before 25 May 2025 by up to a nominal amount of €5,000,000 through the issuance of new registered shares with restricted transferability against cash contribution to the employees of BayWa AG and of affiliated companies within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG). Shareholders’ subscription rights are excluded. Subject to the approval of the Supervisory Board, the Board of Management is authorised to determine the further content of share rights and conditions under which the shares are to be issued (authorised capital 2020).
3. Subject to the approval of the Supervisory Board, the Board of Management is authorised to raise the share capital on or before 31 May 2021 by up to a nominal amount of €12,500,000 through the issuance of new registered shares against contributions in kind. The authorisation can be used in part amounts. Shareholders’ subscription rights are excluded. Subject to the approval of the Supervisory Board, the Board of Management is authorised to determine the further content of share rights and conditions under which the shares are to be issued (authorised capital 2016).
4. Subject to the approval of the Supervisory Board, the Board of Management is authorised to raise the share capital on or before 31 May 2023 by a nominal amount of up to €10,000,000 through the issuance of new registered shares against contributions in
Seite 4 von 17 kind. The authorisation can be used in part amounts. Shareholders’ subscription rights are excluded. Subject to the approval of the Supervisory Board, the Board of Management is authorised to determine the further content of share rights and conditions under which the shares are to be issued (authorised capital 2018).
§ 6 – Shareholder group
Shares may be acquired by: a) Bayerische Raiffeisen-Beteiligungs-Aktiengesellschaft Munich, Germany; b) cooperatives and other members of Genossenschaftsverband Bayern (Raiffeisen/Schulze-Delitzsch) e.V.; c) members of the management and supervisory boards of Bayerische Raiffeisen- Beteiligungs-Aktiengesellschaft, Munich, Germany, and members of the Board of Management and Supervisory Board of BayWa Aktiengesellschaft, Munich, Germany; b) other individuals and legal entities under civil and public law with the approval of the Board of Management. In the case of members of an association affiliated with Deutscher Genossenschafts- und Raiffeisenverband e.V., the Board of Management shall withhold its consent only for compelling reasons. Approval is not required for the bearer shares converted into registered shares by resolution of the extraordinary general meeting of 9 June 1960 or for the registered shares without restricted transferability created from the authorised capital 98 by resolution of the Board of Management of 21 May 2003 with the approval of the Supervisory Board.
§ 7 – Issuing of shares; form and content of share certificates as well as dividend coupons and talons
1. Shares may be issued at a higher price than the percentage of share capital attributable to the individual dividend-bearing share.
2. Shareholders are not entitled to demand certification of their shares. The company may combine individual shares into share certificates covering multiple shares (global certificates). Otherwise, the Board of Management shall determine the form and content of share certificates, dividend coupons and talons with the approval of the Supervisory Board.
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IV. Administration and Management
§ 8 – The company’s executive and supervisory bodies are: a) the Board of Management, b) the Supervisory Board, c) the Annual General Meeting.
a) Board of Management
§ 9 – Composition and remuneration
1. The Board of Management shall consist of multiple members, but no more than nine; one member of the Board of Management shall be primarily responsible for human resources and social affairs. The number of Board of Management members shall be determined by the Supervisory Board within the scope outlined in sentence 1. The members of the Board of Management shall be appointed by the Supervisory Board. Members of the Board of Management shall be appointed for a maximum term of five years; reappointment is permitted.
2. The Supervisory Board shall appoint the Chairman of the Board of Management.
3. The remuneration of the members of the Board of Management shall be determined by the Supervisory Board.
§ 10 – Representation
1. Two members of the Board of Management shall be jointly authorised to represent the company in and out of court.
2. The Board of Management may appoint authorised signatories. In this case, a single Board of Management member may represent the company and sign contracts in cooperation with an authorised signatory; however, the authorised signatory must make a remark to this effect upon signing any documents.
§ 11 – Management
1. The Board of Management must manage the company under its own responsibility in accordance with the law, these Articles of Association and the bylaws for the Board of Management in such a manner as required by the object and welfare of the company. The
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Board of Management shall require the approval of the Supervisory Board only if and when called for by law, these Articles of Association or the bylaws for the Board of Management, or in those cases defined by the Supervisory Board. The Board of Management must report to the Supervisory Board if and when called for by law, these Articles of Association or the bylaws for the Board of Management, or in those cases defined by the Supervisory Board.
2. The members of the Board of Management must act with due care and diligence in executing their management duties.
3. Members of the Board of Management who breach their duties shall be obliged as joint and several debtors to compensate the company for the resulting damages.
§ 12 – Resolutions and bylaws
1. The Board of Management shall adopt resolutions by a simple majority vote unless a larger majority is required by law. In the event of a tie vote, the Chairman shall have the casting vote.
2. The Board of Management as a whole shall decide by way of resolution on all matters of fundamental or material importance.
3. The Board of Management shall adopt its own bylaws.
b) Supervisory Board
§ 13 – Composition
1. The Supervisory Board shall consist of sixteen members.
2. Members shall be elected for a period ending upon the conclusion of the Annual General Meeting that votes on approving the actions of the Board of Management for the fourth financial year after their election; the financial year in which the term begins shall not be included in this calculation.
3. In the manner permitted by law, the shareholders may elect up to four substitute members for the ordinary Supervisory Board members to be elected as shareholder representatives by the Annual General Meeting. The substitute members shall replace any ordinary Supervisory Board members who step down early. The term of the substitute member joining the Supervisory board shall end upon the next Annual General Meeting. An election for any seats vacated by a Supervisory Board member elected by the Annual General Meeting prior to the conclusion of said Supervisory Board member’s term shall
Seite 7 von 17 be held at the next Annual General Meeting, provided no substitute member replaces the vacating member. The election shall be valid for no longer than the remaining term of the vacating Supervisory Board member. The term of the substitute members elected by the employees shall correspond to the remaining term of the vacating Supervisory Board member.
4. Re-election is permitted.
5. Every member of the Supervisory Board is entitled to resign from their seat, even without serious cause, by tendering his or her resignation to the Chairman of the Supervisory Board.
§ 14 – Declarations
The Chairman shall act on behalf of the Supervisory Board should it be necessary to issue or accept declarations to enforce Supervisory Board resolutions.
§ 15 – Chair
The Supervisory Board shall elect a Chairman and a Vice Chairman from among its ranks in accordance with Section 27 paras. 1 and 2 of the German Codetermination Act (MitbestG) under the supervision of the eldest Supervisory Board member in attendance. The Supervisory Board may also elect further deputies from among its ranks. The term of the Chairman and his or her deputies shall correspond to their terms as members of the Supervisory Board unless a shorter term is defined upon election. The Supervisory Board must hold a by-election without delay if the Chairman or a deputy steps down before the end of his or her term.
§ 16 – Meetings, resolutions and bylaws
1. Meetings shall be convened by the Chairman, stating the matters to be discussed and providing one week’s notice. A Vice Chairman may also convene a meeting if the Chairman is prevented from doing so. In urgent cases, the Chairman may appropriately shorten the period of notice. Meetings of the Supervisory Board shall take place once every quarter and, in addition, whenever necessary for business reasons. Every Supervisory Board member or the Board of Management may demand that the Chairman of the Supervisory Board convene a Supervisory Board meeting without delay, stating the purpose and the grounds. The meeting must take place within two weeks of the request’s submission. Stating the reason for convening the meeting, the applicants may convene a meeting of
Seite 8 von 17 the Supervisory Board of their own accord if their request is complied with by at least two Supervisory Board members or the Chairman.
2. The Board of Management shall attend meetings of the Supervisory Board unless otherwise determined by the Supervisory Board on a case-by-case basis.
3. The Supervisory Board has a quorum if eight members take part in deciding on the resolution; if the Chairman does not attend the meeting, the Supervisory Board shall require twelve members to have a quorum. Members abstaining from voting shall be deemed to have not cast a vote. Absent Supervisory Board members may vote on resolutions by submitting written votes through another member of the Supervisory Board. The second vote of the Chairman may also be submitted in writing in accordance with § 16 clause 6 sentence 3.
4. Motions and items not on the agenda may be voted on only if at least three-quarters of the Supervisory Board members agree to do so.
5. Resolutions of the Supervisory Board or one of its committees passed in writing, telephone, electronic media or telefax are only permitted if the Chairman of the Supervisory Board has given the requisite instruction.
6. Resolutions are adopted by a simple majority vote; in the event of a tie vote, the resolution shall be deemed to have been rejected. In the event of a tie vote, the resolution shall be voted on again at the request of the Chairman of the Supervisory Board or another Supervisory Board member (if permitted by law). In the event of a second tie vote, the Chairman of the Supervisory Board shall have a dual voting right.
7. At Supervisory Board meetings, minutes must be taken that detail the location and date of the meeting, the attendees, the items on the agenda, the main content of the negotiations and the resolutions. The minutes must be signed by the Chairman, one further Supervisory Board member and – if applicable – the secretary.
8. The Supervisory Board shall adopt its own bylaws.
§ 17 – Scope of responsibilities
1. The Supervisory Board has the rights and duties defined in the German Stock Corporation Act (AktG). In particular, the Supervisory Board is obliged to monitor the management activities of the Board of Management. It must convene a general meeting as and when required in the interests of the company.
2. Management tasks shall not be assigned to the Supervisory Board.
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3. The Supervisory Board may reserve the right to approve individual, particularly important transactions in advance.
4. The Supervisory Board is authorised to adopt changes to the Articles of Association that affect only their wording; in particular, the Supervisory Board may adapt the Articles of Association accordingly following a full or partial share capital increase from authorised or contingent capital, or after expiry of the authorisation period.
§ 18 – Committees
1. The Supervisory Board may form committees from among its ranks and, to the extent permitted by law, may delegate tasks and decision-making powers to them.
2. If the Chairman is a member of a committee, § 16 clause 6 sentences 2 and 3 shall apply accordingly.
§ 19 – Remuneration and reimbursement of expenses
1. Each Supervisory Board member shall receive fixed annual remuneration of €45,000. The remuneration is due and payable in four equal amounts at the end of the quarter for the respective quarter just ended.
2. The Chairman of the Supervisory Board shall receive three times the amount and the Vice Chairman twice the amount of remuneration paid as described in clause 1.
3. Additional fixed annual remuneration of €3,000 shall be paid for committee work. The committee chairmen shall each receive three times that 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 value added tax which falls due on account of their activities as members of the Supervisory Board or its committees. Moreover, Supervisory Board members shall be included in any D&O insurance covering personal liability taken out in an appropriate amount in the interest of the company. The company shall pay the insurance premiums.
6. Supervisory Board members shall be entitled to the remuneration in the amount defined in the present version of this § 19 for the first time for the first quarter beginning after the amendment to the Articles of Association has been entered into the Handelsregister (commercial register).
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§ 20 – Reporting and duty of non-disclosure
1. In accordance with Section 90 of the German Stock Corporation Act (AktG), the Board of Management shall be solely responsible for reporting to the Supervisory Board or individual Supervisory Board members.
2. The Supervisory Board members shall not disclose to third parties confidential information and company secrets, specifically proprietary information or trade secrets, of which they have gained knowledge within the scope of their work on the Supervisory Board.
3. Members of the Supervisory Board who breach their duties shall be obliged as joint and several debtors to compensate the company for the resulting damages.
c) Annual General Meeting
§ 21 – Scope of responsibilities and voting rights
1. The rights to which shareholders are entitled with regard to matters concerning the company, particularly in connection with its management, are exercised by way of resolutions during the Annual General Meeting.
2. Voting rights are exercised according to no-par value shares; each no-par value share entitles the holder to one vote. Voting rights may be exercised by proxy. Unless otherwise regulated by law, the issuing, revocation and verification of proxy authorisation in dealings with the company must be made in text form (Section 126 b of the German Civil Code (BGB)). Verification of proxy authorisation may also be provided electronically as defined in more detail in the convocation notice.
3. The Annual General Meeting shall vote in the instances specifically defined by law and the Articles of Association.
§ 22 – Convocation and location
1. The Annual General Meeting must be convened by the Board of Management within the first eight months of the year on a recurring basis; in all other instances provided for by law, the Annual General Meeting may be convened by the Board of Management or by the Supervisory Board. Furthermore, it must be convened as often as the Board of Management, Supervisory Board or shareholders whose combined shares account for one-twentieth of the share capital demand. The shareholders must submit a written convocation request to the Board of Management, stating the purpose and the grounds.
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Similarly, shareholders whose combined shares account for one-twentieth of the share capital or are equal to €500,000 may demand that items be placed on the agenda and announced. A court may authorise the shareholders who have submitted the request to convene a general meeting or announce the agenda item should the company fail to comply with said request.
2. The convocation of the Annual General Meeting must be announced in the German Federal Gazette at least 30 days before the date by which shareholders must have registered for the Annual General Meeting. The date of convocation and the date by which registrations must be received shall not count towards this deadline.
3. The Annual General Meeting shall be held in the city in which the company has its registered office; the Board of Management may also select another major German city with a population of more than 100,000 residents.
§ 23 – Right to attend the Annual General Meeting
1. Any shareholder who is listed in the share register and who has registered in good time may attend the Annual General Meeting, either in person or as represented by an authorised proxy.
2. The registration must be received by the company at the address stated for this purpose in the convocation notice at least six days before the Annual General Meeting. A shorter deadline stated in days may be stipulated in the convocation notice.
3. The Board of Management is authorised to arrange for shareholders to be able to take part in the Annual General Meeting even without being physically present and without an authorised proxy, and to exercise all or some of their rights by way of electronic communication either in whole or in part.
4. Furthermore, the Board of Management is authorised to arrange for shareholders to be permitted to submit their votes, even without attending the meeting, in written form or by way of electronic communication (postal votes).
§ 24 – Execution of the Annual General Meeting
1. The Chairman of the Supervisory Board shall be responsible for chairing the Annual General Meeting. In the event that the Chairman of the Supervisory Board is prevented from performing such duties, he or she shall appoint a member of the Supervisory Board to take his or her place. The shareholder representatives on the Supervisory Board shall
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2. The agenda of the Annual General Meeting must be announced publicly upon convocation. Any items on the agenda that have been placed there at the request of a minority and announced as a result of such action (§ 22 para. 1 sentence 4) shall be announced either in the convocation notice or without delay upon receipt of the request. No resolutions may be adopted regarding items on the agenda that have not been properly announced.
3. Resolutions of the Annual General Meeting shall be adopted by a simple majority vote unless provided for otherwise by law or the Articles of Association. In the event of a tie vote, the item for resolution shall be deemed to have been rejected. In elections, the candidate gaining the most votes shall be deemed to have been elected; in the event of a tie vote, the winning candidate shall be determined by the chair of the meeting by drawing lots.
4. Resolutions regarding changes to the Articles of Association or the dismissal of Supervisory Board members shall require a majority of three-quarters of the votes represented during the vote on the motion.
5. The chair of the meeting shall determine the speaking order. To the extent necessary for the proper execution of the Annual General Meeting, he or she may restrict the shareholders’ right to speak or ask questions to an appropriate amount of time or may close the debate regarding individual items on the agenda. In particular, he or she may set a schedule for the entire process, for the discussion of individual items on the agenda and for the individual speakers at the beginning of the Annual General Meeting or during the event. The chair of the meeting shall determine the order in which items are discussed, the voting procedures and the type of voting procedures. He or she may determine that multiple voting procedures are combined into one.
6. The resolutions of the Annual General Meeting must be attested to by a notary. The voting results, including the statements pursuant to Section 130 para. 2 sentence 2 of the German Stock Corporation Act (AktG), must be published on the company’s website within seven days of the Annual General Meeting.
7. The chair of the meeting may allow guests to attend the Annual General Meeting.
8. Individually, the Board of Management or the chair of the meeting are authorised to arrange for the Annual General Meeting to be broadcast and to permit it to be broadcast in a form to which the public has unrestricted access.
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V. Financial Year, Accounting and Appropriation of Retained Earnings
§ 25 – Financial year
The financial year is the calendar year.
§ 26 – Accounting
1. In the first three months of the financial year, the Board of Management must prepare the annual financial statements, the management report, the consolidated financial statements and the Group management report for the past financial year and submit them to the auditor and the Supervisory Board. The Board of Management’s intended proposal for the appropriation of retained earnings to be presented to the Annual General Meeting must be submitted to the Supervisory Board along with the annual financial statements and the management report.
2. The Supervisory Board must review the annual financial statements and the proposal for the appropriation of retained earnings, as well as the consolidated financial statements and the Group management report, report to the Annual General Meeting in writing on the findings of the review and submit its report to the Board of Management within one month of receiving the documents.
3. The annual financial statements shall be deemed to have been adopted upon approval by the Supervisory Board; the same shall apply for the consolidated financial statements. The resolutions of the Board of Management and the Supervisory Board regarding the adoption of the annual financial statements must be included in the Supervisory Board’s report to the Annual General Meeting.
4. The Board of Management must convene the Annual General Meeting without delay upon receiving the Supervisory Board’s report. The Annual General Meeting must be held in the first eight months of the financial year. The annual financial statements and management report, the consolidated financial statements and the Group management report, as well as the report of the Supervisory Board and proposal for the appropriation of retained earnings must be made accessible in the manner prescribed by law from the time of convocation.
§ 27 – Appropriation of retained earnings
1. One-twentieth of the net result for the year reduced by a loss carryforward from the previous year must be posted to the statutory reserve until it and the capital reserves together reach or reattain one-quarter of the share capital.
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2. The Board of Management and the Supervisory Board may post up to half of the net result for the year to other revenue reserves if they adopt the annual financial statements. In addition, the Board of Management and the Supervisory Board are entitled to post further amounts up to one-quarter of the net result for the year to other revenue reserves; this shall not apply if the other revenue reserves exceed half of the share capital or would exceed half upon posting.
VI. Cooperative Council
§ 28 – Cooperative Council and its members
1. The company shall have a Cooperative Council.
2. The number of members shall be determined by the Board of Management with the approval of the Supervisory Board. The members shall be proposed by the Board of Management and appointed by the Board of Management for a period of up to four years with the approval of the Supervisory Board. A member may be dismissed by the Board of Management with the approval of the Supervisory Board for good cause or if the preconditions leading to the member’s appointment cease to apply.
3. Only members who belong to a cooperative may be appointed.
4. Reappointment is permitted.
5. In addition to the members elected in accordance with clause 2, the Chairman of the Supervisory Board and a further member of the Cooperative Council elected by the shareholder representatives on the Supervisory Board from among their ranks shall also be appointed to the Cooperative Council.
6. The Cooperative Council shall elect from a Chairman and a Vice Chairman among its ranks and may form committees from among its ranks.
7. Every member of the Cooperative Council is entitled to resign from their seat by tendering his or her resignation to the Chairman of the Council.
8. For their work, the members of the Cooperative Council shall receive remuneration to be determined by the Board of Management with the approval of the Supervisory Board. In addition, they shall be reimbursed for their expenses.
§ 29 – Duties
1. The Cooperative Council shall perform advisory duties aimed at preserving cooperative interests. It may submit recommendations and suggestions to the Board of Management
Seite 15 von 17 and the Supervisory Board by way of a majority vote (a tie vote shall be deemed to constitute a rejection).
2. It is not entitled to attend Supervisory Board meetings.
3. Powers held by the Board of Management or Supervisory Board may not be delegated to the Cooperative Council.
§ 30 – Meetings of the Cooperative Council
1. The Cooperative Council shall meet at least twice a year at the invitation of its Chairman or Vice Chairman. The Chairman shall determine the time and venue for its meetings.
2. The Board of Management must be invited to the Cooperative Council’s meetings to report to the Cooperative Council on current business.
§ 31 – Duty of non-disclosure
1. The members of the Cooperative Council shall not disclose to third parties confidential information and company secrets, specifically proprietary information or trade secrets, of which they have gained knowledge within the scope of their work on the Cooperative Council.
2. Members of the Cooperative Council who breach their duties shall be obliged as joint and several debtors to compensate the company for the resulting damages.
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Entered into the Gesellschaftsregister (companies register) of the Amtsgericht (local court) of Munich on 16 February 1923.
Most recent amendment entered into the Handelsregister (commercial register) of the Amtsgericht (local court) of Munich on 6 August 2020.
As at July 2020
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