Declaration of conformity by the Executive Board and the Supervisory Board of JENOPTIK AG in fiscal year dated December 9, 2015
Under § 161, Para. 1, Sent. 1 of the German Stock Corporation Act (AktG) the Executive Board and the Supervisory Board of a stock-listed company are required to issue a declaration once a year that the recommendations of the “Government Commission on the German Corporate Governance Code” as published by the Federal Ministry of Justice in the official section of the Federal Gazette (Bundesanzeiger) have been and are complied with or to advice which recommendations have not been or are not applied and why not.
The JENOPTIK AG Executive Board and Supervisory Board support the recommendations of the “Government Commission on the German Corporate Governance Code” and state that pursuant to § 161 Para. 1 Sent. 1 of the German Stock Corporation Act:
Since the last declaration of conformity dated June 2, 2015, the recommendations of the “Government Commission on the German Corporate Governance Code” (“Code”) in the version dated June 24, 2014 have been complied with the following exceptions stated under 1. to 3. and will be followed with the exceptions stated under 1. to 4. in future with the exceptions in the version dated May 5, 2015:
1. In accordance with Point 4.2.3 Para. 2 Sent. 6 of the Code, the remuneration of the Executive Board shall be capped both overall and in respect of its variable components.
This new recommendation, which was added to the Code dated May 13, 2013 has not been followed and will not be followed in the future. The functioning of the variable remuneration for the members of the Jenoptik Executive Board is described in the Remuneration Report on pages 33 and 36 of the 2014 Annual Report. The variable remuneration is capped. To ensure a long-term incentivizing effect, half of it is payable in the form of so-called virtual shares, which are only paid out after a holding period of four years. This ensures that it is highly consistent with the interests of the shareholders in a sustainable development of the company and the share price. The system has proven successful and will be retained in the future. The conversion of the portion of variable remuneration granted in form of virtual shares is calculated on the basis of the volume-weighted average price of the Jenoptik share over the last quarter of the year before last. Therefore, in the event of a rise in the share price, there is a theoretical possibility that, on the allocation date, the value of the total variable remuneration will exceed the cap. However, as a rule, this will require a high level of target attainment and a positive development of the share price. A negative share price development results in the opposite effect. The Executive and Supervisory Boards take the view that the reference to a price of the year before last is appropriate as this price is the basis for assessing the share price development of the subsequent year relevant for remuneration. Therefore, the Executive Board also participates in share price development like each shareholder. There is no cap on the payment of virtual shares. The Executive and Supervisory Boards are of the opinion that, with such a cap, disincentives would be set with respect to the share price development. In addition, by applying a volume-weighted average annual rate, 'windfall profits' are avoided when calculating the amount to be paid.
2. In accordance with Point 4.2.3. Para. 4 of the Code care shall be taken in concluding Executive Board contracts to ensure that payments made to an Executive Board member upon premature termination of his contract including fringe benefits do not exceed the value of two years’ compensation (severance payment cap) and compensate for no more than the remaining term of the contract. The severance payment cap shall be calculated on the basis of the total compensation for the past full fiscal year and, if appropriate, also of the expected total compensation for the current fiscal year.
This recommendation has not been followed and will not be followed in the future with respect to the Chairman of the Executive Board who has served as a member of the Executive Boards since October 1, 2006; in this respect, the status quo was upheld. It has been found that this type of regulation on severance payments contradicts the principle of concluding the contracts with members of the Executive Board regularly for the full term of their office which has been applied by Jenoptik in accordance with the German Stock Corporation Act (AktG). The premature termination of an employment contract normally requires a serious cause. In such a case, no severance payment will be made. Except in the event of a change of control, the employment contract for the Chairman of the Executive Board does not provide for a severance payment with a defined amount resulting from premature termination of the contract. Therefore, in the event of termination of the employment contract without a serious cause, a mutual agreement must be reached. In this event, it would be difficult for the company to unilaterally enforce a severance payment cap included in the contract of employment; it could also not be ensured that the specific circumstances for the premature termination would be taken into account to a sufficient extent. The idea behind the regulation of Point 4.2.3 Para. 4 of the Code will be taken into account by ensuring that the compensation will be appropriate in the event of premature termination of the contract by mutual agreement. In contrast, employment contracts with new members of the Executive Board have and will continue to take into account the recommendation.
3. In accordance with Point 5.4.6. Para. 2 Sent. 2 of the Code the remuneration of the members of the Supervisory Board shall be oriented toward sustainable growth of the enterprise if they are promised performance-related remuneration.
This recommendation has not been followed and will not be followed in the future. The Executive Board and Supervisory Boards take the view that the performance-related remuneration as stipulated in the Articles of Association is appropriate. Accordingly, members of the Supervisory Board will only receive performance-related remuneration in the amount of 10,000 euros or 20,000 euros if group earnings before tax exceed 10 percent or 15 percent of the group equity at the end of the fiscal year. If the return on equity is lower than 10 percent, there is no entitlement to remuneration beyond the fixed remuneration.
The Code does not define what is meant by sustainable development of the company. If the term was to be interpreted according to § 87 Para. 1 Sent. 2 and 3 of the German Stock Corporation Act, performance-related remuneration components for Supervisory Board members should always have a calculation base which is several years in length. As this is not the case at Jenoptik and due to the lack of clarity of the definition, we disclose a deviation from Point 5.4.6 Para. 2 Sent. 2 of the Code as a precautionary measure. The members of the Supervisory Board are obliged to serve exclusively the interests of the company and are not affected in their decision-making process by the opportunity for variable remuneration and its amount. Just as for the members of the Executive Board, employees and shareholders, they profit from a generally sustainable development of the company. The return on equity of 10 percent or 15 percent respectively which triggers payment of the variable remuneration is ambitious enough and was approved by the Annual General Meeting in June 2012 with almost 98 percent of the votes.
4. In accordance with Point 5.4.1 Para. 2 Sent. 1 of the Code the Supervisory Board shall specify a regular limit of length of membership in the Supervisory Board when specifying concrete targets regarding its composition.
This recommendation will not be followed in the future. The Supervisory Board has decided, not to specify a regular limit regarding the length of membership in the Supervisory Board. It is not consistent with the procedure for elections of employee representatives to the Supervisory Board as stipulated in the Co-Determination Act.
December 9, 2015
|On behalf of the Executive Board||On behalf of the Supervisory Board|
|sign. Dr. Michael Mertin
President & CEO
|sign. Matthias Wierlacher
Chairman of the Supervisory Board
Background information from the preamble to the Code.
On September 6, 2001, the “Government Commission on the German Corporate Governance Code” was appointed to develop internationally and nationally recognized principles for correct and responsible corporate governance. As stated in the Code's preamble, "The Code aims at making the German Corporate Governance system transparent and understandable. Its purpose is to promote the trust of international and national investors, customers, employees and the general public in the management and supervision of listed German stock corporations."
The Commission presented the German Corporate Governance Code to the general public on February 26, 2002. The Code provides "regulations" that describe the legal norm currently valid in Germany, in addition to further "recommendations" and "suggestions." The "recommendations" are indicated by the use of the word "shall" in the Code. Companies that deviate from one or more recommendations must disclose this fact in an annual declaration of conformity in accordance with § 161 of the German Stock Corporation Act. The Code thereby "enables companies to reflect sector and enterprise-specific requirements."
"Suggestions" are indicated in the Code by the use of the words "should" or "can" and can be deviated from without disclosure.
Code strengthens confidence into German enterprises.
JENOPTIK AG welcomes the German Corporate Governance Code, which is in the economic interests of Germany and of the companies, and which will contribute towards increasing the trust of investors in the German economy in Germany and abroad. JENOPTIK AG is aware of the significance of investor trust and has maintained an open and transparent corporate style from the very beginning. JENOPTIK AG also welcomes the Code's deliberate flexibility concerning further national and international corporate governance developments. The Code indeed reflects the fact that corporate governance is to be treated as a continual process, and not merely a set of regulations fixed in print, but rather a continuing process. For individual companies, this is a matter of earning the trust of investors, customers, employees and the general public - all of which goes without saying for Jenoptik.
Corporate Governance Statement
|Purchase or sale
|Purchase or sale
Dr. Michael Mertin - President & CEO of JENOPTIK AG
Dr. Michael Mertin has been the Chairman of the Executive Board of JENOPTIK AG since 2007. He is responsible for the operational business as well as for the areas of legal affairs, strategy, business development and innovation management, communication and marketing, quality and processes, purchasing and supply chain management, auditing, supervision of official bodies, corporate governance, data protection, Shared Service Center and, as Human Resources Director, for personnel. He joined Jenoptik as COO and member of Executive Board of JENOPTIK AG in October 2006.
Hans-Dieter Schumacher – Chief Financial Officer of JENOPTIK AG
Hans-Dieter Schumacher has been Chief Financial Officer (CFO) of JENOPTIK AG since April 1, 2015. He is responsible for the areas of accounting & controlling, treasury, taxes, risk management & compliance, mergers & acquisitions, investor relations, IT and the strategic real estate portfolio.
(status July 22, 2015)
Matthias Wierlacher (Chairman of the Supervisory Board)
Chairman of Thueringer Aufbaubank, Erfurt
Michael Ebenau (Deputy Chairman)*
1st commissioner of the local council of IG Metall Jena-Saalfeld, Jena
Deputy Vice President Business Unit Energy & Drive at ESW GmbH, Hamburg
Executive Vice President Communications, Intelligence and Security bei Airbus Defence and Space
Former member of the Managing Board of Siemens AG
Manager of the central IT helpdesk of SSC
Mag. Heinrich Reimitz
Member of the Executive Board of ECE European City Estates GmbH, Vienna (Austria)
Trade union secretary of IG Metall, regional office in Frankfurt
Prof. Dr. rer. Nat. habil., Diplom-Physiker Andreas Tünnermann
Director of the Institute for Applied Physics and professor for Applied Physics at Friedrich-Schiller-University Jena and director of the Fraunhofer-Institut für Angewandte Optik und Feinmechanik, Weimar
* employee representative
Code of Conduct
The Code of Conduct is a binding guideline for law-abiding and responsible conduct within the Jenoptik-Group.
In order to ensure a high level of integrity as well as of ethical and legal standards within the Group and to maintain Jenoptik's reputation at all times, the Code of Conduct summarizes principles of behavior we have always taken for granted. It contains minimum standards that are binding upon all Jenoptik employees in the world.