Under Section 161 of the German Stock Corporation Act, the Board of Directors and the Supervisory Board of exchange-listed companies are obliged to issue a declaration (Glossary) each year stating that the recommendations of the “Code of the Government Commission on German Corporate Governance,” as published by the German Federal Ministry of Justice in the official section of the Federal Gazette (electronic version), have been met. This declaration must also specify which recommendations have not been implemented.
Three Exceptions to the Corporate Governance Code.
In accordance with Section 161 of the German Stock Corporation Act, the Board of Directors and the Supervisory Board issued a new declaration of compliance on November 25, 2008.
Since its last declaration of compliance on November 27, 2007, Wincor Nixdorf AG has complied with the recommendations of the German Corporate Governance Code, in the version dated June 14, 2007, and with the recommendations of the revised version of the Code, which came into force on June 6, 2008, with the exception of the following three departures:
1. The D&O Insurance Policy Agreed by Wincor Nixdorf AG for Its Board of Directors and Supervisory Board Does Not Feature a Policy Excess (Section 3.8 Paragraph 2 GCGC). The D&O insurance policy agreed by Wincor Nixdorf for the Board of Directors and the Supervisory Board does not include a policy excess. The D&O insurance is in place for a significant number of management staff across the entire Wincor Nixdorf Group, at home and abroad, including members of the Company’s boards. For this reason, it does not appear proper to differentiate between Board members on the one hand and other management staff on the other. A policy excess is not customary outside Germany.
2. In Setting the Level of Remuneration Paid to Members of the Supervisory Board, No Account Is Taken of Chairmanship of Any Committee Other Than the Audit Committee, and of Membership of Any of the Supervisory Board Committees (Section 5.4.6 Paragraph 1 Sentence 3 GCGC). Remuneration for mere membership of a committee is deemed unnecessary. As regards the activities of the Supervisory Board, practice has shown that the vast majority of committee meetings are scheduled to coincide closely with meetings of the Supervisory Board itself. Chairmanship of the Audit Committee is remunerated separately due to the additional time and effort required by the role.
3. Members of the Supervisory Board Are Not Paid Any Performance-Related Remuneration in Addition to Their Fixed Emoluments (Section 5.4.6 Paragraph 2 Sentence 1 GCGC). The Company has decided to monitor the development of relevant case law in order to establish a firm foundation for appropriate arrangements within this area. It would appear that legal debate concerning this issue has yet to be concluded, as evidenced by court rulings in recent years regarding the prohibition of share options for Supervisory Board members.
Wincor Nixdorf AG will, in future, comply with the recommendations of the “Code of the Government Commission on German Corporate Governance” in the version dated June 6, 2008, with the exception of the departures listed below. For further explanations, please refer to the previous sections:
1. The D&O Insurance Policy Agreed by Wincor Nixdorf AG for Its Board of Directors and Supervisory Board Does Not Feature a Policy Excess (Section 3.8 Paragraph 2 GCGC).
2. In Setting the Level of Remuneration Paid to Members of the Supervisory Board, No Account Is Taken of Chairmanship of Any Committee Other Than the Audit Committee, and of Membership of Any of the Supervisory Board committees (Section 5.4.6 Paragraph 1 Sentence 3 GCGC).
3. Members of the Supervisory Board Are Not Paid Any Performance-Related Remuneration in Addition to Their Fixed Emoluments (Section 5.4.6 Paragraph 2 Sentence 1 GCGC).
