Last Updated on May 29, 2021 by LawEuro
Stock Corporation Act (Laws / Regulations of Germany)
Subchapter 3
Minutes of the deliberations. Right to demand information
Section 129
Rules of procedure, list of attendees
(1) The general meeting may adopt rules of procedure, with a majority comprising at least three quarters of the share capital represented at the time such resolution is adopted, setting out the rules governing the preparations for the general meeting and the conduct of said meeting. At the general meeting, a list is to be prepared of the stockholders appearing in person or being represented by a proxy and of the proxies representing them, specifying their name and place of residence as well as, in the case of par-value shares, the amount, and in the case of no-par-value shares, the number of shares represented by each proxy, while specifying their class of stock.
(2) Where powers of attorney to exercise the voting right have been granted to a credit institution or to a person designated in section 135 (8) and where the representative so authorised exercises the voting right on behalf of the party entitled to it, then in the case of par-value shares the amount, and in the case of no-par-value shares the number and class of stock for which the authorised party has been granted powers of attorney shall be specified separately for inclusion in the list. The names of the stockholders granting the powers of attorney need not be stated.
(3) Anyone who has been granted authority by a stockholder to exercise, in his own name, the voting right for shares not belonging to him is to separately specify the amount, in the case of par-value shares, and in the case of no-par-value shares the number and class of stock of such shares for inclusion in the list. This shall apply also to registered shares of stock, regarding which the authorised representative is entered as stockholder in the share register.
(4) Prior to the first vote, the list is to be made accessible to all attendees. Upon a corresponding demand being made, each stockholder is to be granted the right to inspect the list of attendees for up to two (2) years after the general meeting.
(5) Section 125 (5) shall apply mutatis mutandis.
Section 130
Minutes
(1) Each resolution adopted by the general meeting is to be recorded in minutes of the meeting prepared by a notary. The same shall apply to any demand made by a minority pursuant to section 120 (1), second sentence, and pursuant to section 137. In the case of companies not listed on the stock exchange, it shall suffice to have the minutes signed by the chairman of the supervisory board insofar as no resolutions are adopted for which the law stipulates a majority of three quarters of the votes cast, or a greater majority ratio.
(2) The minutes are to state the place and the date of the meeting, the name of the notary, as well as the manner of voting and the result of the vote, and the chairman’s establishment of the respective resolution adopted. In the case of companies listed on the stock exchange, the establishment of the resolution adopted also shall comprise, for each such resolution,
1. The number of shares of stock for which valid votes were cast,
2. The portion of the registered share capital that is constituted by the share capital represented by the valid votes,
3. The number of the votes cast in favour of a resolution, the number of the votes opposing it, and, if applicable, the number of abstentions.
In derogation from the second sentence, the person chairing the meeting may limit the establishment of the resolution adopted in each case to the statement that the necessary majority was obtained, unless a stockholder demands a comprehensive establishment pursuant to the second sentence.
(3) The proof as to the general meeting having been convened is to be attached to the minutes as an annex unless it has been included in the minutes with a summary of its content.
(4) The minutes are to be signed by the notary. It shall not be necessary to involve witnesses.
(5) Without undue delay following the general meeting, the management board is to file with the Commercial Register a publicly certified copy of the minutes, or, in the case governed by subsection (1), third sentence, a copy of the minutes signed by the chairman of the supervisory board, in each case with a copy of its annexes.
(6) Companies listed on the stock exchange must publish on their website, within seven (7) days of the general meeting, the results of the voting as established, including the information pursuant to subsection (2), second sentence.
Section 131
Stockholder’s right to request information
(1) The management board is to inform each stockholder at the general meeting, upon a corresponding request being made, concerning matters pertaining to the company insofar as this is required in order to appropriately adjudge the item of business set out in the agenda. The obligation to provide information shall also extend to include the legal and business relations of the company with an affiliated enterprise. Where a company avails itself of the eased requirements pursuant to section 266 (1), third sentence, section 276, or section 288 of the Commercial Code (HGB), then each stockholder may request that, at the general meeting deliberating on the annual accounts, the annual accounts be made available to him in the form that they would have without these eased requirements. The obligation of the management board of a parent company to provide information (section 290 subsections (1) and (2) of the Commercial Code (HGB)) at the general meeting to which the consolidated financial statements and the consolidated management report are submitted shall also extend to cover the situation of the group and the enterprises included in the consolidated financial statements.
(2) The information provided is to correspond to the principles of conscientious and faithful accounting. The by-laws or the rules of procedure pursuant to section 129 may grant authority to the person chairing the meeting to impose reasonable time limits on the stockholder’s right to ask questions and to speak, and may also allow him to make further determinations concerning the details in this regard.
(3) The management board may refuse a request for information:
1. Inasmuch as the provision of the information, when adjudged applying prudent business judgment, is suited to cause a greater than insignificant disadvantage to the company or an affiliated enterprise;
2. Inasmuch as it refers to carrying values for tax purposes or the amount of individual taxes;
3. Regarding the difference between the value at which objects were stated in the annual balance sheet and a higher value of such objects, unless the general meeting approves and establishes the annual accounts;
4. Regarding the accounting and valuation methods insofar as it suffices to cite these methods in the notes in order to accurately represent the company’s assets, financial position, and revenue situation in keeping with its actual circumstances in the sense of section 264 (2) of the Commercial Code (HGB); this shall not apply if the general meeting approves and establishes the annual accounts;
5. Inasmuch as the management board would be liable to punishment under law were it to provide the information;
6. Inasmuch as, in the case of a credit institution or financial services provider, no information need be provided regarding the accounting and valuation methods applied, nor regarding the netting performed in the annual accounts, management report, consolidated financial statements, or consolidated management report;
7. Inasmuch as such information is continuously accessible on the company’s website for at least seven (7) days prior to commencement of the general meeting, and also in its course.
Any refusal to provide information for other than the grounds set out above is not permissible.
(4) Where information has been provided to a stockholder because of his capacity as such, and this was done outside of the general meeting, it is to be provided to every other stockholder making a corresponding request at the general meeting, even if such information is not required in order to appropriately adjudge the item of business set out in the agenda. The management board may not refuse to provide the information in accordance with subsection (3), first sentence, nos. 1 to 4. The first and second sentences shall not apply if a subsidiary company (section 290 subsections (1) and (2) of the Commercial Code (HGB)), a joint venture (section 310 (1) of the Commercial Code (HGB)) or an associated enterprise (section 311 (1) of the Commercial Code (HGB)) issues the information to a parent company (section 290 subsections (1) and (2) of the Commercial Code (HGB)) for purposes of including the company in the consolidated financial statements of the parent company and the information is required for this purpose.
(5) Where a stockholder’s request for information is refused, he may demand that his question and the grounds for refusing to provide the information be included in the minutes of the meeting.
Section 132
Court decision regarding the right to request information
(1) Exclusively the regional court (Landgericht) in the judicial district of which the company has its seat shall decide, upon a corresponding petition being made, whether or not the management board is to provide the information.
(2) Each stockholder shall be entitled to file such a petition who has not been provided with the information requested; where a resolution has been adopted regarding the item of business set out in the agenda to which the information referred, each of the stockholders shall likewise be entitled to file such a petition who appeared at the general meeting and who raised an objection at the general meeting and had it recorded in the minutes. The petition is to be filed within two (2) weeks after the general meeting at which the request for information was refused.
(3) Section 99 subsections (1) and (3), first and second sentences as well as fourth to sixth sentences, and subsection (5), first and third sentences, shall apply mutatis mutandis. A complaint may be lodged only if the regional court (Landgericht) has declared it admissible in its decision. Section 70 (2) of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG) shall be correspondingly applied.
(4) Where the court complies with the petition, the information is to be provided also outside of the general meeting. Compulsory enforcement may be pursued based on the decision in accordance with the regulations of the Code of Civil Procedure (ZPO).
(5) The court seised with the proceedings shall determine, at its equitably exercised discretion, on which of the parties involved to impose the costs of the proceedings.
Leave a Reply