Fresenius Medical Care AG 6-K, filed Dec 7, 2023
Fresenius Medical Care AG (FMS)
About this 6-K
Fresenius Medical Care AG filed this 6-K on December 7, 2023.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
Pursuant to Rule 13a-16 or 15d-16 of the
Securities Exchange Act of 1934
For the month of December 2023
Commission file number: 001-32749
FRESENIUS MEDICAL CARE AG
(Translation of registrant's name into English)
Else-Kröner Strasse 1
61346 Bad Homburg
Germany
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F x Form 40-F ¨
EXHIBITS
The following exhibits are being furnished with this Report:
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
DATE: December 7, 2023
| Fresenius Medical Care AG |
| By: | /s/ Helen Giza | |
| Name: | Helen Giza | |
| Title: | Chief Executive Officer and Chair of the Management Board |
| By: | /s/ Martin Fischer | |
| Name: | Martin Fischer | |
| Title: | Chief Financial Officer and member of the Management Board |
Exhibit 99.1
Fresenius Medical Care AG
Hof
Notification
of impending merger
pursuant to section 62 (3) sentence 2
of the German Transformation Act
Pursuant to section 62 (3) sentence 2 of the German Transformation Act (Umwandlungsgesetz – "UmwG"), the management board (Vorstand) of Fresenius Medical Care AG with its registered office in Hof (Saale), Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Hof (Saale) under registration number HRB 6841 ("Fresenius Medical Care AG"), hereby announces that it is intended to merge
Fresenius Medical Care PensCo GmbH with its registered office in Hof (Saale), registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Hof (Saale) under registration number HRB 6819 ("Fresenius Medical Care PensCo GmbH"), as the transferring entity,
into Fresenius Medical Care AG as the acquiring entity by way of merger by absorption ("Merger").
Fresenius Medical Care AG is the sole shareholder and therefore holds the entire share capital of Fresenius Medical Care PensCo GmbH. Therefore, pursuant to section 62 (1) sentence 1 UmwG, a merger resolution of the general meeting of Fresenius Medical Care AG as the acquiring entity for the merger by absorption of Fresenius Medical Care PensCo GmbH is not required.
However, shareholders of Fresenius Medical Care AG whose shares in aggregate amount to one twentieth of the share capital of Fresenius Medical Care AG may, pursuant to section 62 (2) sentence 1 UmwG, demand the convocation of a general meeting in which a resolution on the approval of the Merger is passed. The shareholders of Fresenius Medical Care AG are hereby expressly notified of this right pursuant to section 62 (3) sentences 2 and 3 UmwG. Such a convocation demand can only be considered if it is received by Fresenius Medical Care AG together with proof of shareholding no later than one month after the date of publication of this announcement in the Federal Gazette (Bundesanzeiger).
A convocation demand pursuant to section 62 (2) sentence 1 UmwG must be addressed to:
Fresenius
Medical Care AG
– Management Board –
Else-Kröner-Straße 1
61352 Bad Homburg v. d. Höhe
Germany
or by e-mail to the following address:
ir@fmc-ag.com.
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From the date of publication of this announcement, the following documents will be made accessible for a period of one month at the business premises of Fresenius Medical Care AG, Else-Kröner-Straße 1, 61352 Bad Homburg v. d. Höhe, Germany:
| – | Merger agreement between Fresenius Medical Care AG and Fresenius Medical Care PensCo GmbH ("Merger Agreement"); |
| – | Annual financial statements and management reports of Fresenius Medical Care AG (formerly: Fresenius Medical Care AG & Co. KGaA) for the fiscal years 2022, 2021 and 2020; |
| – | Half-yearly financial report of Fresenius Medical Care AG (formerly: Fresenius Medical Care AG & Co. KGaA) for the period from 1 January 2023 to June 30, 2023 pursuant to section 115 of the German Securities Trading Act (Wertpapierhandelsgesetz); and |
| – | Opening balance sheet as of September 29, 2023 and interim balance sheet as of November 29, 2023 of Fresenius Medical Care PensCo GmbH, which was founded by articles of association dated August 10, 2023 and registered with the commercial register on September 29, 2023. |
Upon request, a copy of the documents listed above will be sent to each shareholder of Fresenius Medical Care AG without undue delay and free of charge. With the consent of the shareholder, the documents may also be transmitted by means of electronic communication.
Since all shares in Fresenius Medical Care PensCo GmbH are held by Fresenius Medical Care AG, the Merger does not require a merger report (cf. section 8 (3) sentence 3 no. 1 lit. a) UmwG), merger audit (cf. section 9 (2) UmwG in conjunction with section 8 (3) sentence 3 no. 1 lit. a) UmwG) or merger audit report (cf. section 12 (3) in conjunction with section 8 (3) sentence 3 no. 1 lit. a) UmwG). The Merger Agreement has been submitted to the commercial register of Fresenius Medical Care AG.
Pursuant to section 62 (4) sentence 1 UmwG, a merger resolution of the shareholders' meeting of Fresenius Medical Care PensCo GmbH is not required.
Hof (Saale), in December 2023
Fresenius Medical Care AG
The Management Board
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Exhibit 99.2
English translation
Fresenius Medical Care AG
Hof (Saale)
Notification by Management Board
on the composition of the Supervisory Board of
Fresenius Medical Care AG
pursuant to Section 197 sentence 3 UmwG in conjunction with Sections 31 para. 3, 97 AktG
The Extraordinary General Meeting of Fresenius Medical Care AG & Co. KGaA ("FME KGaA") resolved on July 14, 2023 to convert FME KGaA into a stock corporation under the name "Fresenius Medical Care AG" ("Company") by way of a change of legal form in accordance with the provisions of the German Corporate Transformation Act ("UmwG") ("Change of Legal Form"). The change of legal form was completed on November 30, 2023 with the registration in the commercial register of the Local Court of Hof, and has thus become effective.
The change of legal form has resulted in a change with regards to corporate co-determination. Prior to the change legal form, neither the Supervisory Board of Fresenius Medical Care Management AG as the General Partner of FME KGaA nor the Supervisory Board of FME KGaA was subject to co-determination. The employees of FME KGaA and its group companies were previously attributed to Fresenius SE & Co. KGaA ("FSE") for the purposes of corporate co-determination. This attribution will no longer be made after the change of legal form takes effect, as the Company is no longer a “dependent company” of FSE as per stock corporation and co-determination law. Consequently, employees of the Company and its affiliated companies in Germany are no longer considered employees of FSE within the meaning of the German Co-Determination Act ("MitbestG") and are therefore no longer included in the election of employee representatives to the Supervisory Board of FSE.
With effectiveness of legal form change, the Company will go to direct co-determination, governed by the provisions of the MitbestG.
Therefore, the Company's Supervisory Board, which currently consists of six shareholder representatives, needs additions to be composed in accordance with the statutory provisions. The Supervisory Board is to be formed with equal numbers of shareholder and employee representatives , as follows:
As the Company and its group companies employ more than 2,000 but not more than 10,000 employees in their operations in Germany and no measures have been resolved or are planned that will lead to these thresholds being exceeded or fallen below these thresholds, a Supervisory Board ("Supervisory Board") with equal representation of shareholders and employees must be formed at the Company in accordance with Sections 95, 96 (1), 101 (1) sentence 1 of the German Stock Corporation Act ("AktG") and Sections 1 (1), 7 (1) sentence 1 no. 1 of the German Co-Determination Act and Section 8 (1) of the Company's Articles of Association ("Articles of Association"). The Supervisory Board must consist of six shareholder representatives and six employee representatives. In accordance with Section 96 (2) sentence 1 AktG, the Supervisory Board must be composed of at least 30% women and at least 30% men. In accordance with Section 7 para. 2 no. 1 MitbestG, the employee members of the Supervisory Board must include four employees of the Company, including one executive employee in accordance with Section 15 para. 1 sentence 2 MitbestG, and two trade union representatives.
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On July 14, 2023, the Extraordinary General Meeting of FME KGaA elected four of the six shareholder representatives to the Supervisory Board in accordance with Section 197 sentence 3 UmwG in conjunction with Section 31 (1) sentence 1 AktG. Two of the six shareholder representatives on the Supervisory Board were delegated to the Supervisory Board by FSE in accordance with Section 8 (2) of the Company's Articles of Association.
The employees employed within the German operations of the Company and its affiliated companies have been appointed to elect employee representatives to the Supervisory Board. The Supervisory Board will be composed in accordance with the statutory provisions specified in this announcement, if no party who would be authorized as per Section 98 (2) AktG files an appeal action to the competent court pursuant to Section 98 (1) AktG, the Nuremberg-Fürth Regional Court, within one month of publication of this notification in the Federal Gazette. If an appeal is filed to the competent court, the Supervisory Board shall be composed in accordance with the decision of the competent court following the legally binding conclusion of the proceedings.
Bad Homburg, in November 2023
Fresenius Medical Care AG
- The Management Board -
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