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Презентация на тему Governing the corporation

CorporationsThe GmbH-Gesetz (Limited Liability Companies Act)Private limited companies("Gesellschaften mit beschränkter Haftung" or "GmbH")Stock corporations or "Aktiengesellschaften" ("AG") The Aktiengesetz (Stock Corporation Act) of 1965The Co-determination Act of 1976
Governing the Corporation CorporationsThe GmbH-Gesetz (Limited Liability Companies Act)Private limited companies( The Management Board AppointmentThe SB appoints the members;Period should not exceed five The Management Board Members The articles shall determine the number; The MB The Management Board Management and RepresentationThe MB have direct responsibility for the The Management Board Responsibility The members of the MB employ the care Supervisory boardMembers:shall comprise three members (or a specified higher number stated by Supervisory boardAppointment:Elected be shareholders’ meeting;½ (?) should be appointed as representatives of RemovalIf they were appointed by nomination or by article:Motion could be claimed Supervisory boardComposition:The supervisory board members + the shareholders + the employees (in Supervisory boardInterference with MB:appoint of certain SB’ members as deputies for MB’ Supervisory boardInternal organization:may appoint from among its members one or more committeesin Supervisory boardDuties and Rights:examination of the books, records and assets of the General Meetinggeneral shareholders’ meeting is an independent body in the German stock How GM can be convened?By the management board and supervisory board in Powers of GMGM shall resolve on matters listed in § 119 AktG Powers of GM GM shall resolve on all matters listed in Aktiengesetz, Shareholders’ meeting Principle of Simple Majority of VotesResolutions of the shareholders’ meeting Shareholders’ meeting Voting RightsVoting rights may be exercised by a proxy holder. Shareholders’ meeting ”One share, one vote” According to the KonTraG German stock Areas reserved for shareholder approvalAreas reserved for shareholder approvalremoval of supervisory board Areas reserved for shareholder approvalamendments to the Articles consent to any transformation
Слайды презентации

Слайд 2 Corporations
The GmbH-Gesetz (Limited Liability Companies Act)
Private limited companies
("Gesellschaften

CorporationsThe GmbH-Gesetz (Limited Liability Companies Act)Private limited companies(

mit beschränkter Haftung" or "GmbH")
Stock corporations or "Aktiengesellschaften" ("AG")


The Aktiengesetz (Stock Corporation Act) of 1965

The Co-determination Act of 1976


Слайд 3 The Management Board
Appointment
The SB appoints the members;
Period should

The Management Board AppointmentThe SB appoints the members;Period should not exceed

not exceed five years;
Appointment may be renewed;
The

SB may appoint one member as chairman;
The SB may revoke the appointment for cause;
If the MB does not have the required number of members, the court makes the necessary appointments.
Remuneration
Remuneration bears a reasonable relationship to the duties and performance, does not exceed standard remuneration without any particular reasons;
If the situation of the company deteriorates remuneration can be reduced to a reasonable level.



Слайд 4 The Management Board
Members
The articles shall determine the

The Management Board Members The articles shall determine the number; The

number;
The MB may comprise one or more persons;


Only a natural person with full legal capacity may be a member of the MB

Prohibition of Competition
Members of the MB may neither engage in any trade nor enter into any transaction in the company’s line of business on their own behalf;
They may be neither a member of the MB, nor a manager or general partner of another commercial enterprise

Слайд 5 The Management Board
Management and Representation
The MB have direct

The Management Board Management and RepresentationThe MB have direct responsibility for

responsibility for the management;
Members manage the company jointly;
One or

more members may not resolve differences of opinion against the majority of members;
The MB may issue by-laws;

The MB represent the company in and out of court. The authority of the MB to represent the company may not be restricted;
Particular members of the MB may represent the company;
The MB obligated to execute any resolution adopted by the shareholders’ meeting;
The MB shall report to the SB.


Слайд 6 The Management Board
Responsibility
The members of the MB

The Management Board Responsibility The members of the MB employ the

employ the care of a diligent and conscientious manager;
They

do not disclose confidential information and secrets of the company;
Members of the MB who violate their duties are jointly and severally liable to the company for any resulting damage;
They bear the burden of proof whether or not they have employed the care of a diligent and conscientious manager;
The members of the MB shall not be liable for damages if they acted pursuant to a lawful resolution of the shareholders’ meeting.




Слайд 7 Supervisory board
Members:
shall comprise three members (or a specified

Supervisory boardMembers:shall comprise three members (or a specified higher number stated

higher number stated by Article);
number shall be divisible by

three;
the maximum number of members of the SB:




Only a natural person with full legal capacity;
Cannot be members who :
Is already a member of the SB in ten commercial enterprises;
is the legal representative of a controlled enterprise of the company;
is the legal representative of another corporation whose SB includes a member of the MB of the company.




Слайд 8 Supervisory board
Appointment:
Elected be shareholders’ meeting;
½ (?) should be

Supervisory boardAppointment:Elected be shareholders’ meeting;½ (?) should be appointed as representatives

appointed as representatives of the employees to The Co-determination

Act;
The right to appoint members may be granted be The Article to specific shareholders;
For each member of the supervisory board a substitute member may be appointed;

Appointment by the Court:
For a period of more than three months number of members less than it is required;
motion by the MB, a member of the SB or a shareholder (quick, prior to the next meeting of the supervisory board);
the court shall restore the number
term of office of such member shall expire in any event as soon as the deficiency in the composition of the SB has been rectified.








Слайд 9 Removal
If they were appointed by nomination or by

RemovalIf they were appointed by nomination or by article:Motion could be

article:
Motion could be claimed by:
The SB (resolve on such

motion by simple vote);
Shareholders whose aggregate holding amounts to 1/3 of the share capital;
may be removed pursuant to resolution of the shareholders’ meeting prior to the expiration of their term of office (a majority of not less than ¾ of the votes cast);

Supervisory board


Слайд 10 Supervisory board
Composition:
The supervisory board members + the shareholders

Supervisory boardComposition:The supervisory board members + the shareholders + the employees

+ the employees (in general cases);


The supervisory board does

not comply with applicable statutory provisions
 The management board announce such fact in the company’s journals
 Make motion to the court
 The new supervisory board shall be composed in accordance with the statutory provisions specified + the previous members of the supervisory board shall expire.


Слайд 11 Supervisory board
Interference with MB:
appoint of certain SB’ members

Supervisory boardInterference with MB:appoint of certain SB’ members as deputies for

as deputies for MB’ members for 1 year
not exercising

of its functions as SB’ member during the exercising functions as MB’ member
representation of the company both in and out of court as against the management board

Слайд 12 Supervisory board
Internal organization:
may appoint from among its members

Supervisory boardInternal organization:may appoint from among its members one or more

one or more committees
in particular, an internal audit committee



Resоlutions:
quorum can be determined by the articles or not
at least one-half of the number of SB’s member is required


Слайд 13 Supervisory board
Duties and Rights:
examination of the books, records

Supervisory boardDuties and Rights:examination of the books, records and assets of

and assets of the company
commission of individual members
call of

a shareholder’s meeting
Remuneration:
remuneration may be determined in the articles
or set by the shareholders’ meeting

Слайд 14 General Meeting
general shareholders’ meeting is an independent body

General Meetinggeneral shareholders’ meeting is an independent body in the German

in the German stock corporation
the function of GM is

internal decision making

Слайд 15 How GM can be convened?
By the management board

How GM can be convened?By the management board and supervisory board

and supervisory board in the cases determined by law

or the articles of incorporation or if the well-being of the company so demands (§ 121 (1) AktG):
by the management board (normal case) and/or by the supervisory board by a simple majority (§ 121 (2), § 111 (3)),
– by the shareholders, if their shares together amount to 5% of capital (§ 122 (1)),
or
– by the management board, if the annual financial statements or the interim financial statements indicate a loss of half of total capital (§ 92 (1)).






Слайд 16 Powers of GM
GM shall resolve on matters listed

Powers of GMGM shall resolve on matters listed in § 119

in § 119 AktG and can only decide about

management problems if the management board has authorized it to do so.
GM may not decide on other matters.



Слайд 17 Powers of GM GM shall resolve on all matters

Powers of GM GM shall resolve on all matters listed in

listed in Aktiengesetz, in particular with respect to:
1) The

appointment of members of the supervisory board, to the extent they are not to be appointed to the supervisory board or be elected as representatives of employees
2) the appropriation of distributable profits;
3) the ratification of the acts of the members of the management board and the supervisory board;
4) the appointment of the auditor;
5) amendments to the articles;
6) measures to increase or reduce the share capital;
7) the appointment of auditors for the examination of matters in connection with the formation or the management of the company;
8) the dissolution of the company.


Слайд 18 Shareholders’ meeting
Principle of Simple Majority of Votes
Resolutions of

Shareholders’ meeting Principle of Simple Majority of VotesResolutions of the shareholders’

the shareholders’ meeting shall require a majority of the

votes cast (simple majority) unless the law or the articles provide for a larger majority or additional requirements.
The articles may provide for different rules in respect of elections.

Voting Rights
Voting rights shall be exercised in proportion to the par value of shares.
In case of a company not listed at a stock exchange, the articles may limit voting rights with respect to shareholders holding more than one share by setting a maximum par value or a sliding scale.
Voting rights shall arise as from the date on which contributions have been made in full.

Слайд 19 Shareholders’ meeting
Voting Rights
Voting rights may be exercised by

Shareholders’ meeting Voting RightsVoting rights may be exercised by a proxy

a proxy holder.
The listed company at least has

to offer to transmit such proof by electronic communication. If proxy holders are authorised by the company, the authorisations are to be kept by the company for review for three years; shall apply analogously.
The method of exercising the voting rights shall be determined by the articles.


Слайд 20 Shareholders’ meeting
”One share, one vote”
According to the

Shareholders’ meeting ”One share, one vote” According to the KonTraG German

KonTraG German stock corporations may no longer create multiple

voting stock or caps on voting rights. There is a grandfather clause for existing caps and multiple voting stock.
The main objective of such provisions has been the prevention of hostile takeovers.


Слайд 21 Areas reserved for shareholder approval
Areas reserved for shareholder

Areas reserved for shareholder approvalAreas reserved for shareholder approvalremoval of supervisory

approval
removal of supervisory board members elected by the general

meeting
give a vote of no confidence against a member of the management board at a general meeting, which may lead to the removal of that member by the supervisory board
approval of the annual financial statements, to the extent that this does not lie within the competence of the management board and the supervisory board
appropriation of distributable profits

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