(1) The general meeting may appoint auditors (special auditors) by a simple majority of the votes cast in order to audit the actions taken and the events occurring at the company’s formation or occurring in the course of the conduct of the company’s affairs, particularly also in the case of measures serving the procurement of capital and the reduction of capital. In adopting the resolution, a member of the management board or of the supervisory board may not participate in the vote, neither for themselves nor on behalf of some other party, if the audit is intended to cover actions and events that are connected to the approval of the actions taken by a member of the management board or of the supervisory board and discharge granted to same, or that are connected to the initiation of a legal dispute between the company and a member of the management board or of the supervisory board. The voting right of a member of the management board or of the supervisory board that may not participate in the vote in accordance with sentence 2 may not be exercised by some other party on behalf of such member, either.
(2) Where a motion for the appointment of special auditors to audit an action taken or event occurring at formation, or an action taken or event occurring in the course of the conduct of the company’s affairs that is not more than five years in the past, is not carried at the general meeting, the court is to appoint special auditors upon a corresponding petition being filed by stockholders whose shares of stock, in the aggregate, are at least equivalent to one hundredth of the capital stock or to a stake of 100,000 euros, at the time the petition is filed, if there are facts justifying the suspicion that the action taken or event occurring involved dishonest conduct or gross violations of the law or of the by-laws; this also applies to actions and events in the past, provided they are not more than 10 years in the past, if the company was listed at the time such actions were taken or events occurred. The petitioners are to submit proof of their having been holders of the shares of stock since a minimum of three months prior to the date of the general meeting, and of their continuing to hold the shares until a decision is taken regarding their petition. Section 149 applies accordingly to an agreement concluded in order to avoid such a special audit.
(3) Subsections (1) and (2) do not apply to actions and events that may be the subject of special audits pursuant to section 258.
(4) Where the general meeting has appointed special auditors, the court is to appoint some other special auditor upon a corresponding petition being filed by stockholders, whose shares of stock, in the aggregate, are at least equivalent to one hundredth of the capital stock or to a stake in same of 100,000 euros, at the time the petition is filed, if this seems to be required for cause given in the person of the special auditor appointed; this is the case in particular if the special auditor appointed does not have the knowledge required for dealing with the subject to be addressed by the special audit, if there is the fear of the special auditor being biased or if there are concerns regarding their reliability. The petition is to be filed within two weeks of the date of the general meeting.
(5) Besides hearing the parties involved, the court also is to hear the supervisory board and, in the case governed by subsection (4), the special auditor appointed by the general meeting. A complaint may be lodged against the decision taken. The regional court in the judicial district of which the company has its seat hands down the decision regarding the petition pursuant to subsections (2) and (4).
(6) The special auditors appointed by the court are entitled to reimbursement for their reasonable cash expenditures and to remuneration for their activities. The court establishes the expenditures and the remuneration. A complaint may be lodged against the decision taken; filing a complaint on points of law is precluded. Based on the decision taken, compulsory enforcement can be pursued in accordance with the Code of Civil Procedure.
(7) Where the Federal Republic of Germany is the home country (section 2 (13) of the Securities Trading Act) for the company as issuer of securities within the meaning of section 2 (1) of the Securities Trading Act that are admitted to official listing, to the exception of shares and shares of stock in open investment funds within the meaning of section 1 (4) of the Investment Code, the management board, in the case governed by subsection (1) sentence 1 and, in the case governed by subsection (2) sentence 1, the court is to inform the Federal Financial Supervisory Authority (Bundesanstalt für die Finandienstleistungsaufsicht – BAFin) of the appointment of the special auditor and of the special auditor’s report on the audit; additionally, the court is to inform BAFin of any petition for the appointment of a special auditor that it may receive.
(8) Unless stipulated otherwise by the present Act, the court proceedings pursuant to subsections (2) to (6) will be governed by the provisions of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction.