Linde Aktiengesellschaft
Munich
Annual General Meeting of Linde Aktiengesellschaft on 10 May 2017
Explanatory details pursuant to section 121 para. 3 no. 3 German Stock
Corporation Act on shareholder rights as set forth in sections 122 para. 2, 126
para. 1, 127 and 131 para. 1 German Stock Corporation Act
I. Addition to the agenda pursuant to section 122 para. 2 German Stock Corporation Act
Shareholders whose shares in aggregate represent one-twentieth of the share capital or a
proportionate amount of EUR 500,000 of the share capital may request that items are
included in the agenda and published. Such a request is to be addressed in writing to the
Executive Board of the Company
Linde Aktiengesellschaft
Group Legal & Compliance
Klosterhofstrasse 1
80331 Munich
Germany
and must have been received by the Company at least thirty days prior to the Annual General
Meeting; for the purpose of calculating the above time period, the day of receipt and the day
of the Annual General Meeting shall not be counted. Thus, the last permissible day of receipt
is Sunday, 09 April 2017, 24.00 hrs. CEST. Each new item must be substantiated or
accompanied by the wording of the proposed resolution. In all other respects, reference is
made to the pre-conditions of section 122 para. 2 in conjunction with para. 1 and section70
German Stock Corporation Act.
Additions to the agenda which are to be published and which have not already been
published together with the convening notice will be published in the Federal Gazette
(Bundesanzeiger) without undue delay following the receipt of the request and transmitted
for publication to such media which are reasonably expected to disseminate the information
in the entire European Union. Such additions to the agenda are further published on the
website of the Company at www.linde.com/annualgeneralmeeting and notified to the
shareholders in accordance with section 125 para. 1 sentence 3 German Stock Corporation
Act.
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The above shareholder rights are based on the following provisions of the German Stock
Corporation Act:
Section 122 para. 1 and para. 2 German Stock Corporation Act
(1) A general meeting shall be convened if shareholders whose aggregate shareholding
equals or exceeds one-twentieth of the share capital request such meeting in writing,
stating the purpose and the grounds therefore; such request shall be addressed to the
managing board. The articles of association may provide that the right to request
convening of a general meeting shall require a different form and the holding of a
lower portion of the share capital. The applicants have to prove that they have been
shareholders for at least 90 days prior to the day of the receipt of the demand and that
they will continue to hold the shares until the decision of the managing board
regarding their request is made. Section 121 para. 7 shall apply correspondingly.
(2) In the same manner, shareholders whose aggregate shareholding equals or exceeds
one-twentieth of the share capital or a proportionate amount of EUR 500,000 may
request that items be included in the agenda and published. Each new item must be
substantiated or accompanied by the wording of the proposed resolution. The request
within the meaning of sentence 1 must have been received by the company at least 24
days, and in the case of listed companies at least 30 days, prior to the meeting; for the
purpose of calculating the above time period, the day of receipt shall not be counted.
Section 121
General Provisions (excerpt)
(7) In case of deadlines and dates which are calculated back from the date of the meeting,
the day of the meeting itself shall not be included in the calculation. A relocation from
a Sunday, Saturday or a holiday to a preceding or subsequent business day shall not
take place. Sections 187 to 193 of the German Civil Code shall not be applied
accordingly. In case of unlisted companies, the articles may provide for a different
calculation of the deadline.
Section 70
Calculating the Shareholding Period
If the exercise of rights from a share depends on the shareholder having held the share
for a certain period of time, the right to demand transfer of title from a credit
institution, a financial services institution, or an enterprise operating in accordance
with section 53 para. 1 sentence 1 or section 53b para. 1 sentence 1 or para. 7 of the
Gesetz über das Kreditwesen (KWG—German Banking Act) shall be considered
equivalent to ownership. The period during which the share was owned by a
predecessor in title shall be attributed to the shareholder, provided that the latter has
acquired the share without consideration, from the latter’s fiduciary, as the universal
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successor, on the liquidation of a community, or on a transfer of assets in accordance
with section 13 of the Versicherungsaufsichtsgesetz (VAG—German Insurance
Supervision Act) or section 14 of the Gesetz über Bausparkassen (BausparkG—German
Building and Loan Associations Act).
II. Motions and election proposals by shareholders pursuant to section 126 para. 1 and
section 127 German Stock Corporation Act
Shareholders may make motions regarding individual agenda items (cf. section 126 German
Stock Corporation Act) as well as proposals for the election of members of the Supervisory
Board or of auditors (cf. section 127 German Stock Corporation Act).
Pursuant to section 126 para. 1 German Stock Corporation Act, motions of shareholders,
including the shareholder's name, a statement of grounds for the motion and any comments
of the management, are to be made available to the relevant persons listed in section 125
paras. 1 to 3 German Stock Corporation Act under the conditions set forth therein, provided
that the shareholder has sent a counter-motion against the proposal of the Executive Board
and/or the Supervisory Board with respect to a certain item of the agenda, including a
statement of grounds for the counter-motion, no later than fourteen days prior to the Annual
General Meeting of the Company. For the purpose of calculating the above time period, the
day of receipt and the day of the Annual General Meeting shall not be counted. Thus, the last
permissible day of receipt is Tuesday, 25 April 2017, 24.00 hrs. CEST. A counter-motion need
not be made available if one of the exclusions pursuant to section 126 para. 2 German Stock
Corporation Act applies. Moreover, the statement of the grounds need not be made available
if it exceeds a total of 5,000 characters.
No statement of grounds needs to be provided for nominations for elections made by
shareholders pursuant to section 127 German Stock Corporation Act. Election proposals shall
only be made available if they contain the name, the exercised profession and the place of
residence of the nominees and, in case of an election of members of the Supervisory Board,
information on their membership in other supervisory boards the constitution of which is
required by law (cf. section 127 sentence 3 in conjunction with section 124 para. 3
sentence 4 and section 125 para. 1 sentence 5 German Stock Corporation Act). Pursuant to
section 127 sentence 1 in conjunction with section 126 para. 2 German Stock Corporation
Act, there are further conditions under which election proposals need not be made available
via the website. In all other respects, the requirements and provisions for making available of
motions apply mutatis mutandis.
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Any shareholder motions (including statement of grounds therefore) and election proposals
pursuant to section 126 para. 1 and section 127 German Stock Corporation Act shall be sent
exclusively to:
Linde Aktiengesellschaft
Group Legal & Compliance
Klosterhofstrasse 1
80331 Munich
Germany
or by telefax to: +49.89.35757-1007
or by e-mail to: [email protected]
Any motions and proposals for election of shareholders to be made available (including the
shareholder's name and - in case of motions - the statement of grounds therefore) will be
made available on the website www.linde.com/annualgeneralmeeting after their receipt.
Any comments of the management will also be made available on the above website. The
Executive Board reserves the right to combine counter-motions and their reasons if several
shareholders present counter-motions on the same subject matter.
The right of each shareholder to make counter-motions regarding the various agenda items
or nominations for elections even without prior communication to the Company during the
Annual General Meeting remains unaffected. Please note that any counter-motions or
nominations for elections which have been sent to the Company in advance in due time will
be considered only if they are made orally during the Annual General Meeting.
The above shareholder rights are based on the following provisions of the German Stock
Corporation Act:
Section 126
German Stock Corporation Act Motions by Shareholders
(1) Motions by shareholders including the shareholder’s name, the statement of grounds
therefore and any comments of the management shall be made available to the
relevant persons to be notified pursuant to section 125 paras. 1 to 3 under the
conditions set forth therein, provided that the shareholder has sent to the relevant
address stated in the convening notice a counter-motion against a proposal of the
managing board and the supervisory board with respect to a particular item of the
agenda, including a statement of grounds for the counter-motion, no later than 14
days prior to the meeting of the company. The date of receipt shall not be taken into
account. In the case of listed companies, the aforementioned information must be
made available in the website of the company. Section 125 para. 3 German Stock
Corporation Act shall apply accordingly.
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(2) A countermotion and its reasons need not be made available:
1. to the extent the managing board would incur criminal liability by making it
available;
2. if the counter-motion would result in a resolution of the general meeting that
would be unlawful or in breach of the articles of association;
3. if the explanatory statement contains statements which are obviously false or
misleading in material respects or which are defamatory;
4. if a counter-motion by the shareholder based on the same issue has already
been made available in accordance with section 125 in relation to a general
meeting of the company;
5. if the same counter-motion by the shareholder based on an essentially identical
explanatory statement has already been made available in accordance with
section 125 to at least two general meetings of the company within the past five
years and if at the general meeting, less than one-twentieth of the share capital
represented has voted in favour of it;
6. if the shareholder indicates that he/she will neither attend nor be represented
at the general meeting; or
7. if the shareholder has failed to bring or cause to be brought on his/her behalf a
countermotion submitted by him/her at two general meetings within the past
two years.
The statement of grounds need not be made available if the text thereof exceeds a
total of 5,000 characters.
(3) If several shareholders make counter-motions in respect of the same resolution, the
managing board may combine such counter-motions and the respective statements of
grounds.
Section 127
Nominations by Shareholders German Stock Corporation Act
Section 126 shall apply accordingly to a proposal by a shareholder for the election of
members of the supervisory board or external auditors. Such proposal needs not to be
substantiated. The managing board is under no obligation to make available the
proposal unless it contains the information required under section 124 para. 3
sentence 4 and section 125 para. 1 sentence 5. The managing board shall add the
following information to any proposal by a shareholder for the election of supervisory
board members of listed companies to which the Mitbestimmungsgesetz (MitbestG –
German Codetermination Act), the Montan- Mitbestimmungsgesetz (MontanMitbestG –
German
Coal,
Iron
and
Steel
Codetermination
Act)
or
the
Mitbestimmungsergänzungsgesetz (MitbestergG – German Supplemental Act on
Codetermination) applies:
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1. reference to the requirements of section 96 para. 2,
2. information whether the joint fulfillment has been vetoed against in accordance
with section 96 para. 2 sentence 3, and
3. information how many positions in the supervisory board at least have to be
filled by women and men, respectively, in order to comply with the minimum
representation requirement pursuant to section 96 para. 2 sentence 1.
Section 124
(excerpt)
Publication of Requests for Supplements; Proposals for Resolutions
(3) In the convening notice of the meeting, the managing board and the supervisory
board—or in the case of the election of supervisory board members and auditors, the
supervisory board only—shall make proposals for a resolution in respect of each item
on the agenda to be resolved by the general meeting. In the case of companies which
are capital-market oriented corporations within the meaning of section 264d of the
Handelsgesetzbuch (HGB - German Commercial Code), CRR-credit institutions within
the meaning of section 1 para. 3d sentence 1 KWG, with exception of institutes within
the meaning of section 2 para. 1 number 1 and 2 KWG, or insurance companies within
the meaning of article 2 para. 1 of council directive 91/674 EWG, the proposal by the
supervisory board for the election of the auditor of the financial statements shall be
based on the recommendation of the audit committee. Sentence 1 shall not apply if the
general meeting is required to comply with nominations for the election of supervisory
board members in accordance with section 6 of the MontanMitbestG or if the issue to
be resolved was placed on the agenda at the request of a minority. The nomination for
the election of supervisory board members or auditors shall state their name, actual
profession, and place of residence. If the supervisory board must also include
employee representatives, resolutions adopted by the supervisory board concerning
nominations for the election of supervisory board members only require a majority of
the votes of the shareholder representatives on the supervisory board; section 8 of the
MontanMitbestG shall not be affected.
Section 125
Notifications to Shareholders and Members of the Supervisory Board
(1) The managing board shall, at least 21 days prior to the meeting, notify those credit
institutions and shareholders’ associations that exercised voting rights on behalf of
shareholders at the preceding general meeting, or that have requested such
notification, that the general meeting is being convened. The date of the notification
shall not be included. If the agenda has to be amended in accordance with section 122
para. 2, the amended agenda shall be communicated in the case of listed companies.
The notification shall draw attention to the fact that voting rights may be exercised by
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a proxy holder including a shareholders’ association. In the case of listed companies,
nominations for the election of supervisory board members shall be accompanied by
information concerning the membership of such nominees in other statutory
supervisory boards; information relating to their membership of similar governing
bodies of domestic and foreign companies should be included.
(2) The managing board shall provide the same notification to those shareholders who
request it or who are registered as shareholders in the company’s share register at the
beginning of the 14th day before the meeting. The articles of association may restrict
transmission to electronic means of communication
(3) Each member of the supervisory board may request that the managing board sends the
same notifications to him/her.
(4) Each member of the supervisory board and each shareholder shall be notified of the
resolutions adopted at the general meeting by the managing board in writing upon
request.
(5) Financial services institutions and enterprises operating in accordance with section 53
para. 1 sentence 1 or section 53b para. 1 sentence 1 or para. 7 of the KWG shall be
treated as credit institutions.
Section 96
Composition of the Supervisory Board (excerpt)
(2) The supervisory board of listed companies to which the MitbestG, the MontanMitbestG
or the MitbestergG applies shall be composed of at least 30 per cent women and at
least of 30 per cent men. The minimum representation requirement shall be fulfilled by
the supervisory board in its entirety. If the shareholder or employee representatives
veto against such joint fulfillment vis-à-vis the chairman of the supervisory board on
the basis of a resolution passed with majority prior to the election, then the minimum
representation requirement for this election has to be fulfilled separately by each the
shareholder representatives on the one side and the employee representatives on the
other side. In each case, fractional numbers have to be rounded up or down
mathematically to full numbers of positions. If in case of joint fulfillment the higher
percentage of women of one side is subsequently reduced and this side then vetoes
against the joint fulfillment, then this does not render the appointment of the
representatives of the other side invalid. An election of members of the supervisory
board by the general meeting as well as the delegation to the supervisory board
violating the minimum representation requirement shall be invalid. If an election is
declared invalid for other reasons, then elections made in the meantime do not violate
the minimum representation requirement in this regard. The acts on codetermination
mentioned in sentence 1 shall apply to the election of employee representatives in the
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supervisory board.
III. Shareholders' information rights pursuant to section 131 para. 1 German Stock
Corporation Act
At the Annual General Meeting, each shareholder and shareholder's representative may
request from the Executive Board information on the matters of the Company to the extent
that such information is necessary to permit a proper evaluation of the relevant item on the
agenda (cf. section 131 para. 1 German Stock Corporation Act). The information right also
extends to the Company's legal and business relations with any affiliated company as well
as to the situation of the group and the companies included in the consolidated financial
statements. Requests for information must generally be made orally at the Annual General
Meeting during the discussion.
Pursuant to number 14.3 of the Articles of Association of the Company, the chairman of the
meeting may set a reasonable time limit for shareholders' questions and speeches; in
particular, he has the right to determine at the beginning or during the Annual General
Meeting a reasonable time frame for the entire course of the Annual General Meeting, for
individual items, or for individual questions and speeches.
These shareholder rights are based on the following provisions of the German Stock
Corporation Act, which also specify the conditions under which information need not be
provided, as well as the following provisions of the Articles of Association of the Company:
Section 131 German Stock Corporation Act Rights of Shareholders to Information
(1) Each shareholder shall upon request be provided with information at the shareholders’
meeting by the managing board regarding the company’s affairs, to the extent that
such information is necessary for a proper evaluation of the relevant item on the
agenda. The duty to provide information shall also extend to the company’s legal and
business relations with any affiliated company. If a company makes use of the
simplified procedure pursuant to section 266 para. 1 sentence 3, section 276 or section
288 of the Commercial Code, each shareholder may request that the annual financial
statements be presented to him at the shareholders’ meeting on such annual financial
statements in the form which would have been used if such facilitations had not been
applied. A parent enterprise’s (section 290 paras. 1 and 2 of the Commercial Code)
managing board’s duty to inform in the shareholders’ meeting that considers the
consolidated financial statement and consolidated management report shall extend to
the outlook of the group and the enterprises included in the consolidated financial
statement.
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(2) The information provided shall comply with the principles of conscientious and
accurate accounting. The articles or the rules of procedure pursuant to section 129
German Stock Corporation Act may authorise the chairperson of the meeting to limit
the number of questions and speaking time of shareholders as appropriate and to lay
dawn general rules thereon.
(3) The managing board may refuse to provide information:
1. to the extent that providing such information is, in accordance with reasonable
business judgment, likely to cause material damage to the company or an
affiliated company;
2. to the extent that such information relates to tax valuations or the amount of
individual taxes;
3. on the difference between the carrying amounts of items in the annual balance
sheet and the higher market value of such items, unless the general meeting
adopts the annual financial statements;
4. on the accounting and valuation policies, to the extent that disclosure of such
policies in the notes is sufficient to provide a true and fair view of the actual
condition of the company's assets, financial position, and results of operations
within the meaning of section 264 para. 2 of the HGB; this shall not apply if the
general meeting adopts the annual financial statements;
5. to the extent that the managing board would incur criminal liability by providing
the information;
6. to the extent that, in the case of a credit institution or a financial services
institution, information need not be provided on the accounting and valuation
policies used and amounts offset in the annual financial statements, the
management report, the consolidated financial statements, or the group
management report;
7. to the extent that the information is continuously accessible on the company’s
website for at least seven days prior to the general meeting and during the
general meeting.
The provision of information may not be refused for other reasons.
(4) If information has been provided outside a shareholders’ meeting to a shareholder by
reason of his status as a shareholder, such information shall upon request be provided
to any other shareholder at the shareholders’ meeting, even if such information is not
necessary to permit a proper evaluation of an item on the agenda. The managing
board may not refuse to provide such information on the grounds of para. 3 sentence 1
Nos. 1 to 4 German Stock Corporation Act. Sentences 1 and 2 shall not apply if a
subsidiary (section 290 paras. 1 and 2 of the Commercial Code), a joint venture
(section 310 para. 1 of the Commercial Code) or an affiliate (section 311 para. 1 of the
Commercial Code) provides the information to a parent company (section 290 paras. 1
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and 2 of the Commercial Code) for the purpose of inclusion in the consolidated annual
financial statement of the parent company and the information is required for this
purpose.
(5) A shareholder who has been denied information may request that his question and the
reason for which the information was denied be recorded in the minutes of the
meeting.
Number 14.3 of the Articles of Association of the Company reads as follows:
The person presiding determines the sequence of speakers. The person presiding may
reasonably limit the time for shareholders to speak and ask questions. The person
presiding is particularly empowered to set a reasonable time limit at the beginning or
during the General Meeting for the entire General Meeting, for individual items on the
agenda, and for individual questions and statements.
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