Last Updated on May 29, 2021 by LawEuro
Stock Corporation Act (Laws / Regulations of Germany)
Subchapter 2
Convening the general meeting
Section 121
General provisions
(1) The general meeting is to be convened in the cases determined by law and in the by-laws, as well as whenever the best interests of the company so require.
(2) The general meeting shall be convened by the management board, which shall adopt a resolution in this regard by a simple majority of the votes cast. Persons entered in the Commercial Register as members of the management board shall be deemed to have authority. The right of other persons to convene the general meeting as stipulated by law or in the by-laws shall remain unaffected.
(3) The invitation convening the general meeting must set out the business name of the company, its seat, as well as the time and place of the general meeting. Moreover, the agenda is to be provided. In the case of companies listed on the stock exchange, the management board or, in cases in which the supervisory board convenes the general meeting, the supervisory board is to provide the following information in the invitation convening the general meeting:
1. The pre-requisites for attending the general meeting and exercising the voting right as well as, if applicable, the record date pursuant to section 123 (4), second sentence, and its significance;
2. The proceedings for votes to be cast
a) By an authorised representative, with reference being made to the forms to be used for granting a power of attorney to exercise voting rights and to the manner and form in which it is possible to electronically submit proof to the company regarding the appointment of an authorised representative, as well as
b) By postal vote or by means of electronic communication pursuant to section 118 (1), second sentence, insofar as the by-laws provide for a corresponding form of exercising the voting right;
3. The rights of the stockholders pursuant to section 122 (2), section 126 (1), as well as sections 127 and 131 (1); the information may be restricted to the periods granted for exercising the rights if the invitation convening the general meeting otherwise makes reference to further explanations made available on the company’s website;
4. The website of the company on which the information pursuant to section 124a is accessible.
(4) Notice of the invitation convening the general meeting is to be given in the company’s publications of record. Where the stockholders of the company are known by name, the general meeting may be convened by registered letter unless stipulated otherwise in the by-laws; the date on which the invitation is posted shall be deemed the date of the notice.
(4a) In the case of companies listed on the stock exchange that have not issued exclusively registered shares of stock or that do not directly send the invitation convening the general meeting to the stockholders pursuant to subsection (4), second sentence, the invitation convening the general meeting is to be forwarded, at the latest as per the time of the notice, to such media for publication regarding which it can be assumed that they will disseminate the information in the entire European Union.
(5) Unless stipulated otherwise in the by-laws, the general meeting should be held at the seat of the company. Where the shares of stock in the company are admitted to trading at a German stock exchange on the regulated market, then, unless stipulated otherwise in the by-laws, the general meeting may also be held at the seat of the stock exchange.
(6) Where all stockholders are present or represented by proxies, the general meeting may adopt resolutions without adhering to the provisions of the present subchapter insofar as no stockholder objects to the adoption of the resolution.
(7) In the case of periods and deadlines that are counted back from the date of the general meeting, the date of the general meeting itself is not to be counted. Rescheduling the general meeting from a Sunday, a Saturday, or a holiday to a preceding or subsequent business day is not an available option. Sections 187 to 193 of the Civil Code (BGB) shall have no corresponding application. In the case of companies not listed on the stock exchange, the by-laws may provide for a different calculation of the period.
Section 122
Convening the general meeting upon a corresponding demand being made by a minority
(1) The general meeting is to be convened wherever stockholders, whose shares of stock, in the aggregate, are at least equivalent to one twentieth of the share capital, demand that it be so convened, doing so in writing and citing the purpose and the reasons therefor; the demand is to be addressed to the management board. The by-laws may tie the right to demand that the general meeting be convened to a different form and to possession of a lesser portion of the share capital. The petitioners are to submit proof that they have been holders of the shares of stock since at least ninety (90) days prior to the date on which their demand is received, and that they will continue to so hold the shares until the management board takes a decision regarding their petition. Section 121 (7) shall apply mutatis mutandis.
(2) In like manner, stockholders whose shares of stock, in the aggregate, are at least equivalent to one twentieth of the share capital, or to a stake of 500 000 euros, may demand that items of business be set out in the agenda and be published by notice. Each item of business to be newly added to the agenda must include the reasons therefor or a proposal for a resolution. The demand in the sense of the first sentence must be received by the company at the latest twenty-four (24) days prior to the general meeting, in the case of companies listed on the stock exchange at the latest thirty (30) days prior to the general meeting; the date of its receipt shall not be included in calculating the period.
(3) Where the demand is not complied with, the court may grant authority to the stockholders who have raised the demand to convene the general meeting or to publish by notice the item of business. Concurrently, the court may determine the chairman of the general meeting. The invitation convening the general meeting or the notice must indicate the authorisation by the court. A complaint may permissibly be lodged against the decision taken. The petitioners are to submit proof that they will continue to hold the shares of stock until the court hands down its decision.
(4) The company shall bear the costs of the general meeting and, in the case governed by subsection (3), also the court costs if the court has complied with the petition.
Section 123
Period, registration for the general meeting, proof
(1) The general meeting is to be convened at the latest thirty (30) days prior to the date set for it. The date on which the general meeting is convened shall not be included in calculating the period.
(2) The by-laws may make attendance at the general meeting or the exercise of the voting right contingent on the stockholders registering prior to the general meeting. The company must receive the registration at the address set out for this purpose in the invitation convening the general meeting at the latest six (6) days prior to the general meeting. The by-laws, or the invitation convening the general meeting issued on the basis of an authorisation in the by-laws, may provide for a shorter period, which is to be measured in days. The date on which the registration is received shall not be included in calculating the period. The minimum period set out in subsection (1) shall be extended by the days of the registration period.
(3) The by-laws may determine the manner in which proof is to be submitted of the entitlement to attend the general meeting or to exercise the voting right; in such event, subsection (2), fifth sentence, shall apply mutatis mutandis.
(4) In the case of bearer shares of companies listed on the stock exchange, it shall suffice for the depositary institution to issue separate proof, in text form, of the shares held. In the case of companies listed on the stock exchange, the proof is to reflect the circumstances given as per the commencement of the twenty-first day prior to the general meeting and must be received by the company, at the address set out for this purpose in the invitation convening the general meeting, at the latest six (6) days prior to the general meeting. The by-laws, or the invitation convening the general meeting issued on the basis of an authorisation in the by-laws, may provide for a shorter period, which is to be measured in days. The date on which the registration is received shall not be included in calculating the period. Only those parties shall be deemed to be stockholders of the company in their relationship with same, in terms of their attendance of the general meeting or in terms of the exercise of the voting right, who have submitted proof in this regard.
(5) In the case of registered shares of stock in companies listed on the stock exchange, the entitlement to attend the meeting or to exercise the voting right shall follow, pursuant to section 67 (2), first sentence, from entry in the share register.
Section 124
Notice by publication of demands for amendment; guidance regarding resolutions
(1) Where the minority pursuant to section 122 (2) has demanded that items of business be set out in the agenda, said items of business are to be published by notice either together with the invitation convening the general meeting or, if that is not the case, without undue delay after the demand has been received. Section 121 (4) shall apply mutatis mutandis; moreover, in the case of companies listed on the stock exchange, section 121 (4a) shall apply mutatis mutandis. The notice is to be published and forwarded in the same way as the invitation convening the general meeting.
(2) Where the election of members of the supervisory board has been included in the agenda, the notice is to cite the statutory regulations governing the composition of the supervisory board; where the general meeting is bound by nominations, the notice is to cite this as well. Where the notice concerns an election to the supervisory board of a company listed on the stock exchange, to which the Employee Co-Determination Act (MitbestG), the Act on the Co-Determination by Employees in the Supervisory Boards and Management Boards of Mining Enterprises and Enterprises in the Iron- and Steel-Producing Industry (MontanMitbestG), or the Amending Act on Employee Co-Determination in the Iron- and Steel-Producing Industry (MontanMitbestGErgG) applies, it must furthermore provide the following information:
1. Whether an objection has been raised against the fulfilment of the ratio by the supervisory board as a whole pursuant to section 96 (2), third sentence, and
2. The number of seats on the supervisory board that must be filled, at a minimum, by women and men, respectively, in order to fulfil the requirement as to the minimum ratio pursuant to section 96 (2), first sentence.
Where the general meeting is to adopt a resolution as to an amendment of the by-laws or as regards a contract that shall enter into force only upon having been consented to by the general meeting, the wording of the proposed resolution to amend the by-laws is to be published by notice, or the substantial content of the contract
(3) In the notice published, the management board and the supervisory board are to provide guidance regarding the resolutions to be adopted on each item of business set out in the agenda regarding which the general meeting is to adopt a resolution; for the election of members of the supervisory board and auditors, such guidance shall be provided solely by the supervisory board. In the case of companies that are publicly traded in the sense of section 264d of the Commercial Code (HGB), that are credit institutions as defined by the Capital Requirements Regulation (CRR) in the sense of section 1 (3d), first sentence, of the Banking Act (KWG), to the exception of the institutions named in section 2 (1) nos. 1 and 2 of the Banking Act, or which are insurance undertakings in the sense of Article 2 paragraph 1 of the Directive 91/674/EEC, the nomination made by the supervisory board for the election of the auditor of the annual accounts is to be based on the recommendation of the audit committee. The first sentence shall not apply if, in electing members of the supervisory board, the general meeting is bound to nominations pursuant to section 6 of the Act on Employee Co-Determination in the Iron- and Steel-Producing Industry (MontanMitbestG), or if the item of business regarding which a resolution is to be adopted has been included in the agenda upon a corresponding demand having been made by a minority. The nominations of candidates for the supervisory board or for auditors shall state their names, profession exercised, and places of residence. Where the supervisory board is to consist also of members representing the employees, the resolutions adopted by the supervisory board regarding the nomination of candidates for the supervisory board shall require solely the majority of the votes cast by the members of the supervisory board representing the stockholders; section 8 of the Act on Employee Co-Determination in the Iron- and Steel-Producing Industry shall remain unaffected.
(4) No resolutions may be adopted regarding items of business set out in the agenda that have not been duly and properly published by notice. No notice need be published for resolutions to be adopted regarding a motion made at the meeting to convene a general meeting, regarding motions made concerning items of business set out in the agenda, and regarding deliberations that do not result in a resolution being adopted.
Section 124a
Publications on the company’s website
In the case of companies listed on the stock exchange, their website must make the following accessible promptly after the general meeting has been convened:
1. The content of the invitation convening the general meeting;
2. An explanation for those cases in which no resolution is to be adopted regarding an item of business set out in the agenda;
3. The documents to be made accessible to the general meeting;
4. The total number of the shares of stock and the voting rights as given at the time at which the general meeting is convened, including a separate listing of the total number for each class of stock;
5. If applicable, the forms to be used for having a vote cast by a proxy or casting a vote by means of a postal vote, unless these forms are not directly transmitted to the stockholders.
A demand made by stockholders in the sense of section 122 (2) that is received by the company after the general meeting has been convened is to be made accessible in like manner and without undue delay upon so having been received by the company.
Section 125
Notifications for the stockholders and to members of the supervisory board
(1) At the latest 21 days prior to the general meeting, the management board is to notify the credit institutions and the associations of stockholders that had exercised voting rights on behalf of stockholders at the last general meeting, or that had demanded that such notice be given them, that the general meeting is being convened. The date of the notification shall not be included in calculating the period. Where the agenda is to be amended pursuant to section 122 (2), then notice of the amended agenda is to be given if the general meeting is that of a company listed on the stock exchange. The notice is to indicate the option of exercising the voting right by proxy, as well as by an association of stockholders. In the case of companies listed on the stock exchange, information on the candidates’ membership in other supervisory boards mandated by the law is to be attached to any nomination of candidates for the supervisory board; information on their membership in comparable supervisory committees of business enterprises within Germany and abroad should be attached.
(2) The management board is to provide the same notification to those stockholders who demand to be so notified or who have been entered, as of the start of the fourteenth day prior to the meeting, as stockholders in the company’s share register. The by-laws may restrict the transmittal to the means of electronic communication.
(3) Each member of the supervisory board may demand that the management board send him the same notifications.
(4) Upon a corresponding demand being made, each member of the supervisory board and each stockholder is to be notified of the resolutions adopted at the general meeting.
(5) Financial services providers and the enterprises pursuing activities governed by section 53 (1), first sentence, or section 53b subsection (1), first sentence, or subsection (7) of the Banking Act (KWG) shall be equivalent to credit institutions.
Section 126
Motions by stockholders
(1) Motions by stockholders are to be made accessible to the beneficiaries set out in section 125 subsections (1) to (3), subject to the pre-requisites listed therein, including the name of the stockholder, the reasons for which the motions are being made, and a statement, if any has been made, by the management regarding its position, provided that the stockholder has sent, at the latest fourteen (14) days prior to the date of the general meeting, a counter-motion opposing a proposal or guidance by the management board and the supervisory board regarding a certain item of business set out in the agenda, specifying the reasons therefor, to the address set out for this purpose in the invitation convening the general meeting. The date on which the counter-motion is received shall not be included in calculating the period. In the case of companies listed on the stock exchange, the counter-motion shall be made accessible via the company’s website. Section 125 (3) shall apply mutatis mutandis.
(2) A counter-motion and the reasons for which it is being made need not be made accessible:
1. Inasmuch as the management board would be liable to punishment under law, were it to make such proposal accessible;
2. If the counter-motion were to result in the general meeting adopting a resolution that is in violation of the law or of the by-laws;
3. If the reasons make manifestly false or misleading statements regarding essential aspects, or if they are insulting;
4. If a counter-motion made by the stockholder based on the same facts and circumstances has already been made accessible pursuant to section 125 for a general meeting of the company;
5. If the same counter-motion of the stockholder, citing essentially the same reasons, has been made accessible pursuant to section 125 in the past five (5) years to at least two (2) general meetings of the company, and if less than one twentieth of the share capital represented voted for this counter-motion at the general meeting;
6. If the stockholder indicates that he will not attend the general meeting and will not have a proxy represent him;
7. If, in the past two (2) years at two (2) general meetings, the stockholder has failed to propose or to have proposed a counter-motion regarding which he has informed the company.
The reasons need not be made accessible if they amount to more than 5,000 characters in total.
(3) Where several stockholders propose counter-motions regarding one and the same business to be resolved upon, the management board may combine the counter-motions and the reasons specified for them.
Section 127
Nominations by stockholders
Section 126 shall apply mutatis mutandis to nominations by stockholders of candidates for the supervisory board or for auditors of the annual accounts. No reasons need be specified for the nomination. The management board need not make accessible the nomination also in those cases in which the nomination does not include the information pursuant to section 124 (3), fourth sentence, and section 125 (1), fifth sentence. The management board is to supplement the nomination by a stockholder of candidates for the supervisory board of companies listed on the stock exchange, to which the Employee Co-Determination Act (MitbestG), the Act on the Co-Determination by Employees in the Supervisory Boards and Management Boards of Mining Enterprises and Enterprises in the Iron- and Steel-Producing Industry (MontanMitbestG), or the Amending Act on Employee Co-Determination in the Iron- and Steel-Producing Industry (MontanMitbestGErgG) applies, by the following substantive content:
1. Indication of the requirements stipulated by section 96 (2),
2. Whether an objection has been raised against the fulfilment of the ratio by the supervisory board as a whole pursuant to section 96 (2), third sentence, and
3. The number of seats on the supervisory board that must be filled, at a minimum, by women and men, respectively, in order to fulfil the requirement as to the minimum ratio pursuant to section 96 (2), first sentence.
Section 127a
Stockholders’ forum
(1) Stockholders or associations of stockholders may call on other stockholders in the stockholder forum of the Federal Gazette (Bundesanzeiger) to act jointly or as proxies in proposing a motion or making a demand in accordance with the present Act, or to exercise the voting right at a general meeting.
(2) The call is to include the following information:
1. The name and an address of the stockholder or the association of stockholders;
2. The company’s business name;
3. The motion, the demand, or a suggestion on how to exercise the voting right regarding a certain item of business set out in the agenda;
4. The date of the general meeting concerned.
(3) The call may make reference to the reasons specified on the website of the party so calling on the other stockholders, and that party’s electronic address.
(4) The company may indicate, in the Federal Gazette (Bundesanzeiger), the statement of its position published on its website concerning the call.
(5) The Federal Ministry of Justice and Consumer Protection (BMJV) has the authority to stipulate, by an ordinance having the force of law, the external design of the stockholders’ forum and further details, particularly as regards the call, the indication, the fees, deletion periods, claim to deletion, cases of abuse, and inspection.
Section 128
Transmission of the notifications
(1) Where a credit institution is keeping safe, at the beginning of the twenty-first day prior to the general meeting, bearer shares of the company on behalf of stockholders, or where it is entered in the share register regarding registered shares of stock that it does not own, it is to transmit the notifications pursuant to section 125 (1) to the stockholders without undue delay. The by-laws of the company may restrict the transmittal to the means of electronic communication; in such event, the credit institution shall not be obligated to take any further measures, also not for other reasons.
(2) The duty of the credit institution to provide compensation for any damages arising from a violation of subsection (1) may not be precluded in advance, nor may it be limited in advance.
(3) The Federal Ministry of Justice and Consumer Protection (BMJV) has the authority, upon having coordinated the matter with the Federal Ministry for Economic Affairs and Energy (BMWi) and the Federal Ministry of Finance (BMF), to prescribe by an ordinance having the force of law that the company is to reimburse the credit institutions for the expenditures they incur for
1. Transferring the particulars pursuant to section 67 (4), and
2. Reproducing the notifications and for mailing them to the stockholders.
Blanket allowances may be established. The ordinance having the force of law does not require the consent of the Bundesrat.
(4) Section 125 (5) shall apply mutatis mutandis.
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