GERMANY Law and Practice Contributed by: Eva Nase and Kay-Uwe Neumann, POELLATH
cannot prove that they hold more than a nominal value of EUR1,000 of the registered share capital of the company 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 resolu - tions 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 special shareholder compensation proceeding ( Spruch- verfahren ). Appointing a Special Auditor Shareholders can request (by demanding either an invitation of an extraordinary general meet - ing or the adding of a topic on the agenda, see 5.2 Role of Shareholders in Company Man- agement ) that the general meeting shall – with a simple majority of the votes cast – appoint a special auditor ( Sonderprüfer ) to analyse statu- torily 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 management, minor - ity 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 asser - tion of damage claims against management and supervisory board members following breaches of tasks and duties if, in a first instance, the general meeting resolves with a simple major - ity to assert such claims. Minority shareholders who together hold 10% of the registered capi -
tal 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. 5.5 Disclosure by Shareholders in Publicly Traded Companies Shareholders of listed companies have to noti - fy the Federal Financial Supervisory Authority ( Bundesanstalt für Finanzdienstleistungsaufsi- cht or BaFin) and the issuer if their direct and/ or indirect holdings exceed or fall below certain thresholds (3%, 5%, 10%, 15%, 20%, 25%, 30%, 50%, 75%) and if their positions in finan - cial instruments relating to shares exceed or fall below the aforementioned thresholds (except for the 3% threshold). The notification is to be published by the issuer and can be viewed on its website at any time. Shareholders of listed companies who directly or indirectly hold at least 10% must notify the issuer of the objectives pur - sued with the acquisition and the origin of the funds used within 20 trading days of reaching or exceeding this threshold. According to the Money Laundering Act ( Geld- wäschegesetz , GWG), which implements the EU Anti-Money Laundering Directive, companies need to disclose their beneficial owner(s) in the transparency register, irrespective of whether their shares are publicly traded or not.
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