Supervisory Board

The Supervisory Board (“SB”) is part of an organizational structure which includes – besides the General Meeting (“GM”) – 2 governing bodies in a German Stock Corporation (in German: “Aktiengesellschaft - AG”), i.e. the SB and the Executive Board (“EB”). Please note that certain German Stock Corporations, in particular (but not limited to) those usually employing more than 500 employees, are subject to the German Co-Determination law (in German: “Mitbestimmungsrecht”) and thus, 1/3 or, as the case may be, half of the SB members shall be representatives of the employees who are to be appointed and dismissed by the employees according to the specifics set out in the relevant Co-Determination Act.

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Division of Duties: The SB monitors and advises the EB. Certain specific types of transactions (as stipulated in the Articles of Association (“AoA”) or by the SB) shall only be entered into with the SB’s prior consent. Moreover, the SB appoints and revokes the appointment of the EB members and represents the Company vis-à-vis the EB and its members. Certain duties and responsibilities of the SB may be conferred on committees of the SB (in German: “Aufsichtsratausschüsse”) for the purposes of preparation or final decision.



Composition: The SB comprises at least 3 and not more than 21 persons, one of whom shall be elected by the SB as its Chairman (“Chairman”). Only a natural person with full legal capacity who is neither under guardianship or whose property affairs are, in whole or in part, subject to consent requirements pursuant to the German Civil Code (in German: “Bürgerliches Gesetzbuch”) may be a SB member. A person may not be a SB member if such person is (i) already a SB member in 10 commercial enterprises which are obligated by statutory law to form a SB (positions as Chairman are to be taken into account twice; certain intra-group memberships are not to be taken into account), (ii) an EB member, a holder of a special proxy (in German: “Prokurist”) or a general manager (in German: “Generalhandlungsbevollmächtigter”) of the Company or the legal representative of a controlled enterprise of the Company, or (iii) the legal representative of another corporation whose SB includes an EB member of the Company.



Appointment/Dismissal Competence: As a general rule, the SB members are elected by the GM (simple majority vote). Moreover, the AoA may grant specific Shareholders or the holders of specific Shares the right to appoint up to 1/3 of the SB members, e.g. in case where the GM cannot be convened in time, the German Stock Corporation Act also provides for a mechanism for the judicial appointment of supplementary SB members, the motion for such an appointment to be filed by the EB. The term of office for SB members is up to approximately 5 years (reappointment is permitted). SB members elected by the GM may be dismissed from their office by way of a further resolution of the GM (majority of not less than ¾ of the votes cast (the AoA may stipulate another majority and/or additional requirements)). SB members appointed pursuant to the AoA may be removed and replaced by the person entitled to the right of appointment at any time. Any SB member may be dismissed from office for good cause by a court.



Alternates: With respect to deputies of members of the SB (in German: “stellvertretende Aufsichtsratsmitglieder”) the statements above apply mutatis mutandis.

For a description of how to change the respective board members, please see the individual steps in the "Step-by-Step"-schedules below. As all information on how to change board members in Germany on the CBM Site by nature is generic (i.e. does not include specific requirements for listed companies, special requirements in statutory documents or as otherwise stipulated in any type of special law), we strongly recommend seeking legal advice with Allen & Overy before actually changing any board members in Germany.

Appointment
Step Action Documentation Signatures? Timing Originals? Notarization/
Certification?
Waiver of
Step?
Miscellaneous
1

Convening of GM.

Convening notice.

No, but resolutions of the EB (calling the GM) and the SB (proposed resolutions) are required.

30 calendar days prior to the GM (the day of the notice and the day of the GM not taken into account; such minimum period is extended to accommodate the deadline for giving notice of attendance as required by the AoA).

Yes, confirmation of the publication in the German Federal Gazette to be placed in the Minutes of the GM.

No.

Yes, if all Shareholders concur.

Convening notice to be published in the German Federal Gazette or sent by registered mail.

2

GM.

Minutes of the GM.

Yes, to be signed by public notary/Chairman of the SB (cf. “Original document/Signature?”).

At the date as stipulated in the convening notice (unless waived, cf. Step 1).

Yes, Minutes of the GM require a notarial deed. However, minutes on resolution to elect SB member may also be recorded and signed by the Chairman of the SB (instead of a notarial deed).

Yes, to be signed by public notary/Chairman of the SB (cf. “Original document/Signature?).

No, and a physical meeting is always required.

Any resolution not duly recorded in the Minutes of the GM is null and void.

3

Submission to the Commercial Register (Minutes of the GM).

(i) Submission form;

(ii) Minutes of the GM.

Yes, submission form to be signed by the EB members (in required numbers).

Without undue delay after the GM.

Yes.

Yes, application to be submitted electronically in officially certified form.

No.

Filings with the Commercial Register (including annexes) are to be made in German/certified translation.

4

Submission to the Commercial Register (List of the SB members).

(i) Submission form;

(ii) List of the current SB members.

Yes, submission form to be signed by the EB members (in required numbers).

Without undue delay after the change in the SB has become effective.

Yes.

Yes, application to be submitted electronically in officially certified form.

No.

Filings with the commercial register (including annexes) are to be made in German/certified translation.

1
Step 1
>30 days*
2
Step 2
0 days
3
Step 3
Without undue delay
4
Step 4
Without undue delay

Without undue delay**

*However, less than 30 days possible if Stepp 1 is waived.

**The need for a physical meeting, notarization and translations (if needed) may take addional time.

Dismissal
Step Action Documentation Signatures? Timing Originals? Notarization/
Certification?
Waiver of
Step?
Miscellaneous
1

Convening of GM.

Convening notice.

No, but resolutions of the EB (calling the GM) and the SB (proposed resolutions) are required.

30 calendar days prior to the GM (the day of the notice and the day of the GM not taken into account; such minimum period is extended to accommodate the deadline for giving notice of attendance as required by the AoA).

Yes, confirmation of the publication in the German Federal Gazette to be placed in the Minutes of the GM.

No.

Yes, if all Shareholders concur.

Convening notice to be published in the German Federal Gazette or sent by registered mail.

2

GM.

Minutes of the GM.

Yes, to be signed by public notary (cf. “Original document/Signa-ture?”).

At the date as stipulated in the convening notice (unless waived, cf. Step 1).

Yes, minutes of the GM require a notarial deed.

Yes, to be signed by public notary (cf. “Original document/Signature?).

No, and a physical meeting is always required.

Any resolution not duly recorded in the Minutes of the GM is void.

3

Submission to the Commercial Register (Minutes of the GM).

(i) Submission form;

(ii) Minutes of the GM.

Yes, submission form to be signed by the EB members (in required numbers).

Without undue delay after the GM.

Yes.

Yes, application to be submitted electronically in officially certified form.

No.

Filings with the Commercial Register (including annexes) are to be made in German/certified translation.

4

Submission to the Commercial Register (List of the SB members).

(i) Submission form;

(ii) List of the current SB members.

Yes, submission form to be signed by the EB members (in required numbers).

Without undue delay after the change in the SB has become effective.

Yes.

Yes, application to be submitted electronically in officially certified form.

No.

Filings with the commercial register (including annexes) are to be made in German/certified translation.

1
Step 1
0-30 days*
2
Step 2
0 days
3
Step 3
Without undue delay
4
Step 4
Without undue delay

Without undue delay**

*However, less than 30 days possible if Stepp 1 is waived.

**The need for a physical meeting, notarization and translations (if needed) may take addional time.

Fee quote

Allen & Overy has provided all input about changing board members in Germany. Allen & Overy is an [...] international full-service law firm with a team of around 2,300 lawyers. We serve businesses, financiers and governments whenever there is a need for decisive legal advice involving complex transactions. Through our truly global network now spanning 44 offices in 31 countries, we are well placed to respond quickly and effectively on a co-ordinated worldwide basis. We always challenge ourselves to bring new and original ways of thinking to the complex legal challenges our clients face and offer them commercially favourable solutions.

For more information about Allen & Overy and changing board members in Germany, please use the contacts below:

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