Last Updated on May 29, 2021 by LawEuro
Stock Corporation Act (Laws / Regulations of Germany)
Subchapter 5
Separate resolution
Section 138
Separate meeting. Separate vote
Any separate resolutions to be adopted by certain stockholders as prescribed by the present Act or in the by-laws are to be adopted either at a separate meeting of these stockholders or in the course of a separate vote, unless the present Act stipulates otherwise. The provisions governing the general meeting shall apply mutatis mutandis to convening the separate meeting and the attendance at same as well as to the right to request information, while the provisions governing resolutions adopted by the general meeting shall apply mutatis mutandis to separate resolutions. Where stockholders who are entitled to participate in the vote on the separate resolution demand that a separate meeting be convened, or that business be published by notice that is subject to a separate vote, then it shall suffice if the aggregate of their shares of stock, which entitle them to participate in the vote on the separate resolution, is at least equivalent to one tenth of the shares entitling to the exercise of the voting right in voting on the separate resolution.
Subchapter 6
Preferential stock without voting rights
Section 139
Nature
(1) The voting right may be precluded for shares of stock that have been given a preferential right in the distribution of profits (preferential stock without voting rights). The preferential right in particular may consist of a participation in the profits allocated to the share in advance (advance dividend) or of an increased participation in the profits (additional dividend). Unless stipulated otherwise in the by-laws, an advance dividend is to be paid in addition.
(2) Preferential stock without voting rights may be issued only up to half of the share capital.
Section 140
Rights of holders of preferential stock
(1) To the exception of the voting right, preferential stock without voting rights grants each stockholder those rights to which he is entitled by a share of stock.
(2) Where the preferential right is to be paid in addition and the preferential amount is not paid in a given year, or not fully, and is not paid in the subsequent year in addition to the full preferential right for that year, the stockholders shall have voting rights until the arrears have been paid. Where the preferential right is not to be paid additionally and the preferential amount is not paid in a given year, or not fully, the holders of preferential stock shall have voting rights until the preferential right has been paid fully in a year. For as long as the voting right exists, the preferential stock is to be taken into account also in calculating a majority ratio of capital required by law or the by-laws.
(3) Unless stipulated otherwise in the by-laws, the fact that the preferential amount to be paid additionally has not been paid in a given year, or not fully, as such shall not give rise to a claim to the preferential amount in arrears, such claim being conditional upon later resolutions as to the distribution of profits.
Section 141
Cancellation or limitation of the preferential right to profits
(1) Any resolution cancelling or limiting the preferential right to profits shall require the consent of all stockholders affected in order to be valid.
(2) A resolution adopted regarding the issuance of preferential stock that is to take precedence or is to be equivalent to preferential stock without voting rights in the distribution of profits, or of the company’s assets, shall likewise require the consent of the holders of preferential stock. No such consent need be obtained if the issuance was expressly reserved at the time the preferential right to profits was granted or, in cases in which the voting right was precluded at a later point in time, if such issuance was reserved at the time of the preclusion, and if the pre-emptive right of the holders of preferential stock for newly issued shares of stock is not precluded.
(3) The holders of preferential stock are to adopt a separate resolution at a separate meeting concerning their consent. This resolution shall require a majority of at least three quarters of the votes cast. The by-laws may neither stipulate a different majority ratio nor impose further requirements. Where the resolution as to the issuance of preferential stock that is to take precedence or is to be equivalent to preferential stock without voting rights in the distribution of profits or of the company’s assets precludes, as a whole or in part, the pre-emptive right of the holders of preferential stock for such newly issued shares of preferential stock, then section 186 subsections (3) to (5) shall apply mutatis mutandis to the separate resolution.
(4) Where the preferential right to profits has been cancelled, the shares of stock shall grant voting rights.
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