(1) 1The members of the management board of the company shall be
jointly and severally liable together with the persons liable pursuant to § 317, if, in violation of their duties, they have failed to include any disadvantageous transaction or act in their report on relations of the company with affiliated enterprises or to state that the company has suffered a disadvantage as a result of such transaction or act and that such disadvantage has not been compensated. 2They shall bear the
burden of proof in the event of a dispute as to whether or not they have employed the care of a diligent and conscientious manager.
(2) The members of the supervisory board of the company shall be jointly and severally liable together with persons liable pursuant to § 317, if, with respect to any disadvantageous transaction or act, they have violated their duty to examine the report on relations with affiliated enterprises and to report to the shareholders’ meeting on the findings of such examination (§ 314); (1) sentence 2 shall apply analogously. (3) The board members shall not be liable to the company and the
shareholders if any such act was based on a lawful resolution of the shareholders’ meeting.
(4) § 309 (3) to (5) shall apply analogously.
Section Three. Integrated Companies
§ 319 Integration
(1) 1The shareholders’ meeting of a stock corporation may resolve to
integrate the company into another stock corporation with domicile in Germany (principal company), if all shares of such company are held by the prospective principal company. 2The statutory provisions and the
provisions of the articles governing amendments to the articles shall not apply to such resolution.
(2) 1The resolution on integration shall become effective only upon consent
by the shareholders’ meeting of the prospective principal company. 2The
resolution on the consent shall require a majority of not less than three fourths of the share capital represented at the passing of the resolution.
3The articles may provide for a larger capital majority and for additional
(3) 1From the convocation of the shareholders’ meeting of the prospective
principal company that is to resolve the approval of the integration, the following must be presented in the business premises of this company for review by the shareholders:
• 1. a draft of the integration resolution;
• 2. annual accounts and balance sheets of the participating companies for the preceding three years;
• 3. a comprehensive written report by the management board of the prospective principal company in which the integration is explained and justified legally and economically (integration report).
2Upon request, each shareholder shall receive without delay and free of
charge a copy of the documents referred to in sentence 1. 3The duties in
sentences 1 to 2 shall not arise if the documents referred to in sentence 1 are accessible on the future principal company’s Internet page for the same period of time. 4These documents shall be made accessible in the
shareholders’ meeting. 5Each shareholder shall upon request also receive
in the shareholders’ meeting information about all matters relating to the company to be integrated that are relevant in the context of the integration.
(4) 1The management board of the company to be integrated shall file the
integration and the name of the principal company for registration in the commercial register. 2The minutes of the resolutions of the shareholders’
meeting and the appendices thereto shall be appended to such filing in duplicate or officially certified copy.
(5) 1In the registration according to 4, the management board must
declare that an action against the effectiveness of the resolution of the shareholders’ meeting has not be raised or has not been raised within the time limits or that such an action has been denied finally and without recourse to appeal or that such an action has been withdrawn; the management board must also inform the registration court of such actions after the registration. 2If the declaration is not made, then the
integration shall not be registered unless, through declarations certified by a notary, those shareholders with standing forfeit the action against the effectiveness of the resolution of the shareholders’ meeting.
(6) 1The declaration according to 5 sentence 1 is not necessary if, after
the raising of an action against the effectiveness of the resolution by shareholders’ meeting, the court holds, on application of the company against whose shareholders’ meeting resolution the action is directed, that the raising of the action does not prevent the registration. 2§ 247,
§§ 82, 83 (1) and § 84 of the Code of Civil Procedure as well as the provisions of the Code of Civil Procedure applicable with regard to proceedings at first instance before regional courts shall be applied to the proceedings unless stated otherwise. 3The order according to sentence 1
shall be issued if
• 1. the action is inadmissible or manifestly unfounded,
• 2. the claimant has not provided deeds within one week after service of the application which prove that he has been holding a proportionate amount of not less than 1,000 euros since notification of the meeting; or
• 3. it appears preferable that the resolution of the shareholders’ meeting takes effect immediately, because the material disadvantages for the company and the shareholders as set forth by the stock corporation outweigh, in the court’s opinion, the disadvantages for the opponent, unless the infringement is particularly severe.
4In urgent cases, the order can be issued without oral hearing. 5The
decision should be rendered no later than three months following the petition; delays in rendering the decision must be explained in a non- appealable decision. 6The alleged facts according to which the order can
be issued according to sentence 3 must be made credible. 7The senate of
the higher regional court of the stock corporation’s registered seat shall decide on such petition. 8A transfer of such power to decide to a single
judge shall be excluded; conciliatory hearings shall not be required.
9The decision is not subject to a contesting action. 10If the action proves
to be founded, then the company that caused issue of the order must compensate the opponent of the application for the loss incurred due to the registration based on the order. 11Any deficiencies concerning the
resolution shall not affect its implementation after registration; it is not possible to demand as compensation that this effect of the registration be eliminated.
(7) The integration of the company into the principal company shall become effective upon registration of the integration in the commercial register of the integrated company’s domicile.