GERMANY Law and Practice Contributed by: Eva Nase and Kay-Uwe Neumann, POELLATH
Votes and Resolutions Unless stipulated otherwise in the articles of association, 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 shareholders can cast votes in writ - ten form. Shareholders may be represented by a proxy/proxy voter at the general meeting, or may exercise their rights via electronic commu - nication; 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 chairman 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 In a GmbH, the regulations in respect of the shareholders’ 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 arti - cles of association or provided that all share - holders agree in text form. The shareholders’ 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 of the shareholders’ meeting has to be announced in the invitation. However, these formalities on the invitation can be waived or amended in the articles of association. majority. GmbHs
There are no special requirements for the hold - ing 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 electronic communication based on a corresponding provision in the arti - cles of association or provided that all share - Shareholders generally do not have any direct claims against members of corporate gov - ernance bodies (see 4.8 Consequences and Enforcement of Breach of Directors’ Duties and 4.9 Other Bases for Claims/Enforcement Against Directors/Officers ). Appealing Resolutions Any shareholder who holds only “one” share may appeal resolutions ( Anfechtungs- und Nichtig- keitsklage ) of the general or shareholders’ meet - ing for breach of law or the company’s articles of association. Another objection shareholders can try to bring forward in such lawsuits is the violation of the (majority) 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. holders agree in text form. 5.4 Shareholder Claims By filing such objection and voidance claims in court, minority shareholders can block the completion (ie, entry into the commercial reg - ister) of, for example, corporate and integration measures. Registration will take place when the minority shareholders’ court challenges are over - come by a so-called release proceeding, which the company must file ( Freigabeverfahren ). The company will particularly prevail in the release proceeding and thereby achieve registration in the commercial register if minority shareholders
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