GERMANY Law and Practice Contributed by: Christoph Nolden, Nicolas Ott, Stefan Mendelin and Thomas Glaser, SZA Schilling, Zutt & Anschütz
2.2 Notice of Shareholders’ Meetings As regards the notice period, in general there are no differences between the AGM and the EGM. Nota- bly, in urgent cases, resolutions can also be adopted without adhering to the statutory notice period if all shareholders are present or represented by proxies in the general meeting and no shareholder objects. How- ever, this only seems practicable in stock corporations with small numbers of shareholders. Beyond that, in the extraordinary situation of a general meeting following a public offer to acquire the com- pany’s shares, the Securities Acquisition and Takeover Act ( Wertpapiererwerbs- und Übernahmegesetz , or WpÜG) provides for a shorter statutory notice period. The general meeting may then be convened with a notice period of at least 14 days. 2.3 Procedure and Criteria for Calling a General Meeting In stock corporations, the general meeting can be requested or called by the management board, the supervisory board or a group of shareholders. • The general meeting is usually convened by the management board. The corresponding resolution has to be adopted by a simple majority. • In some cases, the supervisory board can – and is obliged to – convene a general meeting, if it is required in the company’s best interests. • Shareholders whose shares amount to 5% of the share capital may request that the general meeting be convened. The articles of association may set the threshold for convening the general meeting to a lower proportion of the share capital. If the stock corporation does not call a general meeting after a legitimate request has been made, the competent court may authorise the shareholders who have made the request to convene the general meeting by themselves. For limited liability companies, shareholders’ meetings are usually called by the managing director(s). Howev- er, shareholders are entitled to request a shareholders’ meeting if their shares correspond to at least 10% of the share capital. If such request is not complied with within an appropriate period, the shareholders them- selves may call a shareholders’ meeting without mak-
granting interim injunctive relief is still highly contro- versial, leading to the conclusion that the enforceabil- ity of shareholders’ agreements remains (to a certain extent) limited in legal practice. 2. Shareholders’ Meetings and Resolutions 2.1 Types of Meeting, Notice and Calling a Meeting There are two types of shareholders’ meetings: • ordinary shareholders’ meetings (“annual general meetings” (AGMs) in stock corporations); and • extraordinary shareholders’ meetings (“extraordi- nary general meetings” (EGMs) in stock corpora- tions). In ordinary shareholders’ meetings, the shareholders will decide on: • the distribution of profits based on the annual financial statements; • the discharge of the board members; • appointment of auditors; and • appointment of the members of the supervisory board. The AGMs of stock corporations must be convened at least 30 days in advance. Provisions in the articles of association that shorten the 30-day period are inad- missible. Shareholders’ meetings of limited liability companies must be convened at least one week in advance. Pro- visions in the articles of association that shorten the one-week period are also inadmissible; however, the shareholders may unanimously waive these require - ments. Extraordinary shareholders’ meetings in both types of companies can be convened for special purposes – for example, to resolve a matter that cannot be post- poned until the next ordinary shareholders’ meeting (such as an urgently required decision about a capital increase) or to resolve issues surrounding structural measures like squeeze-outs, mergers or conversions.
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