GERMANY Law and Practice Contributed by: Eva Nase and Kay-Uwe Neumann, POELLATH
able to direct the managing directors to take or refrain from taking certain actions in the business by way of
provisions, virtual general meetings require a corre - sponding provision or authorisation in the articles of association as of 31 August 2023. Such provision or authorisation may only be set for a maximum term of five years. Annual General Meeting Invitation The invitation has to fulfil several formalities, such as setting out the business name and seat of the com - pany, the time and place of the general meeting, and the agenda. For listed companies, the invitation has to provide further information – eg, about the rights of the shareholders in respect of the general meeting. Votes and Resolutions Unless stipulated otherwise in the articles of associa - tion, the general meeting should be held at the seat of the company. Resolutions may not be taken by written consent, but the articles may provide that sharehold - ers can cast votes in written form. Shareholders may be represented by a proxy/proxy voter at the general meeting, or may exercise their rights via electronic communication; the latter option is only available if the articles of association allow this form of attend - ance and voting. In listed companies, each resolution adopted by the general meeting is to be recorded in the minutes of the meeting prepared by a notary public. For non- listed companies, it is sufficient to have the minutes signed by the chair of the supervisory board, as long as no resolutions are adopted for which applicable law requires a majority of 75% of the votes cast or a greater majority. GmbHs In a GmbH, the regulations in respect of the share - holders’ meeting are not as strict as in the AktG for AGs, SEs and KGaAs. Resolutions generally have to be passed in a meeting of the shareholders, but can also be made in writing based on a corresponding provision in the articles of association, or provided that all shareholders agree in text form. The share - holders’ meeting generally has to be convened by the managing directors by registered letter. In the case of a meeting, the invitation must be sent at least one week before the meeting, and the agenda
internally binding instruction. 4.3 Shareholder Meetings Annual General Meetings
An annual general meeting is mandatory in an AG and KGaA within the first eight months of a financial year, and in an SE within the first six months of a financial year. The annual meeting has to resolve upon the ordi - nary topics (see 2.2 Types of Decisions ) and upon the remuneration system, with the latter resolution being non-binding (see 3.10 Payments to Directors/ Officers ). Further extraordinary topics on fundamental decisions can also be put on the agenda of the annual general meeting, or can be passed in an extraordinary general meeting. Apart from this, general meetings are to be convened if necessary for the welfare and going concern of the company. The general meeting has to be convened no later than 30 days prior to the date of the general meeting, or no later than 36 days prior to the meeting if shareholders are required to register for the general meeting. In an AG and a two-tier system SE, the con - vening is generally the obligation of the management board, or exceptionally the supervisory board. Within a single-tier system SE, the administrative board is responsible for the convening. However, shareholders whose share is equivalent to at least 5% of the registered share capital may also demand the convening of a general meeting. Share - holders whose share in the share capital is that high or corresponds to a nominal stake of EUR500,000 may demand that certain additional items are put on the agenda. The demand has to be received by the com - pany 24 days prior to the general meeting at the latest, or no later than 30 days prior to the general meeting for listed companies. Virtual General Meetings In August 2022, the German Parliament passed a new law introducing virtual general meetings – ie, meetings without the physical presence of the shareholders or their proxies at the location of the general meeting – as a permanent option and alternative to the physi - cal general meeting. However, pursuant to the new
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