GERMANY Law and Practice Contributed by: Eva Nase and Kay-Uwe Neumann, POELLATH
of the shareholders’ meeting has to be announced in the invitation. However, these formalities on the invi - tation can be waived or amended in the articles of association. There are no special requirements for the holding and conducting of shareholders’ meetings. Shareholders may submit their vote in writing or may grant proxy. It is also permissible to hold virtual meetings via elec - tronic communication based on a corresponding pro - vision in the articles of association, or provided that all shareholders agree in text form. 4.4 Shareholder Claims Shareholders generally do not have any direct claims against members of corporate governance bodies (see 3.8 Breach of Directors’ Duties and 3.9 Other Claims/Enforcement Against Directors/Officers ). Appealing Resolutions Any shareholder who holds only “one” share may appeal resolutions ( Anfechtungs - und Nichtigkeit- sklage ) of the general or shareholders’ meeting for breach of law or the company’s articles of associa - tion. Another objection shareholders can try to bring forward in such lawsuits is the violation of the (major - ity) shareholder’s duty of good faith. As these duties are not statutorily defined, the chances of success are based on case law. The defendant is the company, not the other shareholder/shareholders who has/have voted in favour. By filing such objection and voidance claims in court, minority shareholders can block the completion (ie, entry into the commercial register) of, for example, corporate and integration measures. Registration will take place when the minority shareholders’ court chal - lenges are overcome by a so-called release proceed - ing, which the company must file ( Freigabeverfahren ). In particular, the company will prevail in the release proceeding and thereby achieve registration in the commercial register if minority shareholders cannot prove that they hold more than a nominal value of EUR1,000 of the registered share capital of the com - pany since the announcement of the convocation of the general meeting.
If in the context of a resolution the company or a majority shareholder has to offer to acquire shares of minority shareholders at fair value based on an IDW S1 valuation, those resolutions cannot be objected to (any more) with the argument that the valuation is too low. However, minority shareholders are entitled to challenge the adequacy of the price in court in a spe - cial shareholder compensation proceeding ( Spruch- verfahren ). Appointing a Special Auditor Shareholders can request (by demanding either an invitation of an extraordinary general meeting or the adding of a topic on the agenda – see 4.2 Role of Shareholders ) that the general meeting shall – with a simple majority of the votes cast – appoint a special auditor ( Sonderprüfer ) to analyse statutorily specified decisions of the executive and supervisory board. If the general meeting rejects the motion to appoint a special auditor, and if facts and circumstances justify severe breaches of tasks and duties by the manage - ment, minority shareholders who together hold 1% of the registered share capital or a nominal value of at least EUR100,000 can file for the appointment of the special auditor in court. Damage Claims Minority shareholders may influence the assertion of damage claims against management and super - visory board members following breaches of tasks and duties if, in a first instance, the general meeting resolves with a simple majority to assert such claims. Minority shareholders who together hold 10% of the registered capital or a nominal value of at least EUR1 million can then judicially file for the appointment of a special representative ( besonderer Vertreter ) to assert these claims. Minority shareholders who together hold 1% of the registered share capital or a nominal value of EUR100,000 or more can also apply in court for admission to assert these claims of the company in their own name. 4.5 Shareholders in Publicly Traded Companies Shareholders of listed companies have to notify the Federal Financial Supervisory Authority ( Bundesan- stalt für Finanzdienstleistungsaufsicht , or BaFin) and the issuer if their direct and/or indirect holdings exceed
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