(1) An intermediary may exercise the voting right for shares of stock that do not belong to it, and regarding which it is not entered in the share register as a holder, only if it has been granted power of attorney. The power of attorney may only be granted to a specified intermediary, which must keep a verifiable record of it. The declaration of power of attorney must be complete and may only set out declarations connected to the exercise of the voting right. Where the stockholder does not issue any express instructions, a general power of attorney may provide only that the intermediary is authorised to exercise the voting right:
1. in accordance with its own vote guidance (subsections (2) and (3)) or
2. in accordance with guidance from the management board or from the supervisory board or, in the case of the guidance from the management board deviating from that of the supervisory board, in accordance with guidance from the supervisory board (subsection (4)).
Where the intermediary offers to exercise the voting right pursuant to sentence 4 no. 1 or no. 2, then it is to concurrently tender the service, within the scope of what reasonably can be expected of it and until revoked, of forwarding to an association of stockholders or to any other representative for whom the stockholder may opt, the documents required for exercising the voting right. The intermediary is to indicate to the stockholder on an annual basis the opportunities available for revoking the power of attorney at any point in time and to change the authorised representative; this indication is to be set out prominently in the communication. The issuance of instructions as regards the individual items of business set out in the agenda, the granting and revocation of a general power of attorney pursuant to sentence 4, and the award of a contract pursuant to sentence 5, including any changes thereto, are to be facilitated for the stockholder by providing them with a form sheet or an onscreen form.
(2) An intermediary intending to exercise the voting right on the basis of a power of attorney pursuant to subsection (1) sentence 4 no. 1 is to make accessible to the stockholder, in due time, its own guidance for exercising the voting right as regards the individual items of business set out in the agenda. In developing this guidance, the intermediary is to be oriented by the interests of the stockholder and is to take organisational measures to ensure that no interests of other business units influence this guidance; it is to appoint a member of the management that is to supervise compliance with these duties as well as the due and proper exercise of the voting right and its documentation. In providing its guidance, the intermediary is to indicate that it will exercise the voting right in accordance with its own guidance unless the stockholder issues other instructions in due time. Where a member of the management board or an employee of the intermediary is a member of the company’s supervisory board or where a member of the management board or an employee of the company is a member of the intermediary’s supervisory board, the intermediary is to indicate this fact. The same applies if the intermediary holds an ownership interest in the company that section 33 of the Securities Trading Act requires to be registered or if it was a member of a consortium that has assumed the last issuance, in terms of time, of securities of the company made in the past five years.
(3) Where the stockholder has not issued any instructions to the intermediary on how to exercise the voting right, then the intermediary is to exercise the voting right, in the case governed by subsection (1) sentence 4 no. 1 in accordance with its own guidance, unless it is in its rights to assume, based on the circumstances, that, were the stockholder aware of the facts and circumstances, the stockholder would endorse the voting rights being exercised in derogation from the intermediary’s guidance. Where the intermediary has deviated, in exercising the voting right, from instructions issued by the stockholder or, if the stockholder has not issued any instructions, where the intermediary has deviated from its own guidance, it is to inform the stockholder of this fact while citing the grounds for doing so. At its own general meeting, the intermediary to which power of attorney has been granted may exercise the voting right conferred upon it by the power of attorney only insofar as the stockholder has issued express instructions concerning the individual items of business set out in the agenda. The same applies during the general meeting of a company in which the intermediary holds more than 20 per cent, directly or indirectly, of the capital stock; in computing the level of a holding, indirect holdings within the meaning of section 35 (3) to (6) of the Securities Trading Act are not to be taken into account.
(4) An intermediary intending to exercise at a general meeting the voting right based on a power of attorney pursuant to subsection (1) sentence 4 no. 2 must make accessible to the stockholders the guidance issued by the management board and the supervisory board, unless this is effected in some other manner. Subsection (2) sentence 3 as well as subsection (3) sentences 1 to 3 apply accordingly.
(5) Where the power of attorney so permits, the intermediary may grant sub-power of attorney to persons who are not its employees. Unless specified otherwise by the power of attorney, the intermediary exercises the voting right on behalf of the party entitled to such voting right. Where the company has permitted absentee balloting, the intermediary having been granted power of attorney may avail itself of this option. In order to provide the company with proof of its authorisation to vote, it suffices, in the case of listed companies, to submit proof of authorisation pursuant to section 123 (3); in all other cases, the requirements set out in the by-laws for exercising the voting right are to be met.
(6) An intermediary may exercise the voting right for registered shares of stock that do not belong to it, but regarding which it is entered in the share register as holder, only based on an authorisation. Subsections (1) to (5) are to be applied accordingly to the authorisation.
(7) The effectiveness of the vote will not be impaired by a violation of subsection (1) sentences 2 to 7 or of subsections (2) to (6).
(8) Subsections (1) to (7) apply accordingly to associations of stockholders, to proxy advisers and to persons who tender, on a commercial basis, the service to stockholders of exercising their voting right at the general meeting; this does not apply if the party intending to exercise the voting right is the legal representative, spouse or partner in a civil union of the stockholder or is related within the fourth degree by consanguinity or affinity.
(9) The obligation of the intermediary, the proxy advisers as well as of the persons who tender, on a commercial basis, the service to stockholders of exercising their voting right at the general meeting, to provide compensation for any damage resulting from a violation of subsections (1) to (6) may not be precluded in advance, nor may it be limited in advance.
(10) (repealed)