Convening general meetings, including the agenda

Under section 49 (1) sentence 1 no. 1 of the WpHG, an issuer of shares admitted to trading is required to publish in the Federal Gazette the following circumstances relating to the general meeting:

• the notice convening the general meeting, including the agenda,
• the total number of shares and voting rights at the time the general meeting was convened, and
• the rights of shareholders with respect to attendance at the general meeting.

Total number of shares and voting rights

The publication obligation in respect of the total number of shares and voting rights based on the implementation of Article 17(2) of the Transparency Directive means that the issuer is required to disclose in its publication in the Federal Gazette the number of all issued ordinary and preferred shares and the number of voting rights at the date when the general meeting was convened. The relevant number must be disclosed irrespective of any excluded voting rights. Preferred shares are only included in the number of voting rights if, as an exception subject to the conditions of section 140 (2) of the AktG, these preferred shares also start carrying voting rights, or if and to the extent that a special resolution of the holders of preferred shares is expected to be adopted under section 141 (3) of the AktG. Additionally, the issuer is also permitted, but not required, to disclose how many shares it holds as own stock.

If the company has issued new shares out of contingent capital increase, it may be difficult to determine the current total number voting rights at the date of the invitation in specific cases, because under section 200 of the AktG the issuance of new shares and the associated increase in the share capital are only completed legally once the new shares have been credited to the securities account of the beneficiary and the issuer may not be aware when such transfer has been made. For the purposes of section 49 (1) sentence 1 no. 1 of the WpHG, however, for practical reasons BaFin allows the issuer to include in the total number of issued voting rights those new shares for which it has already issued an instruction to its mandated institution to credit the new shares to the securities accounts of the beneficiaries.

Examples of correct disclosures of the total number of shares and voting rights at the date on which the general meeting is convened:

• “The company’s share capital is composed of 9,500,000 no-par value shares each conferring one vote. The total number of voting rights is thus 9,500,000. At the date on which the general meeting was convened, the company holds 2,839 treasury shares that do not confer any voting rights.”
• “At the date on which the general meeting was convened, the total number of shares of the company was 50,000,000, of which 40,000,000 shares are ordinary voting shares each conferring one vote. 10,000,000 shares are non-voting preferred shares. The total number of voting rights at the date on which the general meeting was convened is 40,000,000.”

In this regard, the statement of the total number of treasury shares in the first example is a voluntary disclosure by the issuer.

Date on which the general meeting is convened

The date on which the general meeting is convened is determined in accordance with the AktG. Under section 121 (2) sentence 1 of the AktG, the general meeting is convened by the management board. It is not the resolution adopted by the management board that constitutes the notice convening the general meeting; rather, the announcement of the resolution in the company’s news (Gesellschaftsblätter) is decisive, i.e. under section 25 sentence 1 of the AktG the date on which the announcement was posted in the Federal Gazette. In the case of German stock corporations, a one-time publication is sufficient under section 49 (1) sentence 2 of the WpHG, provided that the content-related requirements set out in section 49 (1) no. 1 of the WpHG have been met, since the date and medium of the publication under the WpHG and the AktG are identical.

Shareholders' attendance rights

When the general meeting is convened, the issuer must publish the rights of shareholders to attend the general meeting. The issuer must draw attention to the option to appoint proxies (see section 125 (1) sentence 2 of the AktG) and indicate that proxy forms are available as well as indicate the contact address for the company from which they can be obtained. It is also necessary to provide information about the proxies designated by the company and to explain how shareholders may submit countermotions to the agenda. Publication of the rights to which the shareholders are entitled during the general meeting is not required.