(1) Agreements of the company with founders or with stockholders participating in the company with an ownership interest of more than 10 per cent of the capital stock, according to which it is intended that the company is to purchase existing facilities or facilities yet to be created or other assets in return for remuneration that is in excess of one tenth of the capital stock, and which agreements are concluded in the course of the first two years following the company’s entry in the Commercial Register, will enter into force only if the general meeting has consented to same and by being entered in the Commercial Register. Where the general meeting has not granted its consent or the purchase has not been entered in the Commercial Register, the legal transactions serving its implementation likewise will be ineffective.
(2) Unless different requirements as to form have been stipulated, an agreement pursuant to subsection (1) must be made in writing. From the time onwards at which the general meeting is convened that as a rule is to adopt a resolution as to the consent, the agreement is to be kept available at the company’s business premises for inspection by the stockholders. Upon a corresponding demand being made, each stockholder is to be provided with a copy without undue delay. The obligations pursuant to sentences 2 and 3 will cease to exist if the agreement is accessible, for the same period of time, via the company’s website. The agreement is to be made accessible at the general meeting. At the outset of the meeting, the management board is to give a presentation on the agreement. The agreement is to be attached to the minutes of the meeting as an annex.
(3) Prior to the general meeting adopting a resolution, the supervisory board is to review the agreement and is to submit a written report (report on post-formation agreements). Section 32 (2) and (3) governing the formation report applies accordingly to the report on post-formation agreements.
(4) Furthermore, an audit is to be performed by one or several formation auditors prior to the adoption of the resolution. Section 33 (3) to (5), sections 34 and 35 governing the formation audit apply accordingly. Subject to the pre-requisites set out in section 33a, the audit by the formation auditors may be forgone.
(5) The resolution adopted by the general meeting requires a majority of at least three quarters of the capital stock represented at the time of its adoption. Where the agreement is concluded in the first year following the company’s entry in the Commercial Register, the shares of the consenting majority furthermore must be equivalent, at a minimum, to one quarter of the aggregate capital stock. The by-laws may stipulate a greater majority ratio of capital instead of the above majorities and may impose further requirements.
(6) Upon consent having been granted by the general meeting, the management board is to file an application for entry of the agreement in the Commercial Register. The report on post-formation agreements and the report of the formation auditors, along with the supporting records and documents, are to be attached to the application for registration. Where an external formation audit is forgone pursuant to subsection (4) sentence 3, section 37a applies accordingly.
(7) Where there are concerns regarding the entry in the register because the formation auditors declare, or because it is obvious, that the report on post-formation agreements is inaccurate or incomplete or does not comply with statutory provisions, or that the remuneration granted for the assets to be purchased is excessive, the court has the option of refusing to register the company. Where the application for registration includes the declaration stipulated by section 37a (1) sentence 1, section 38 (3) applies accordingly.
(8) The date on which the agreement was concluded and the consent granted by the general meeting are to be registered, as well as the party or parties concluding the agreement with the company.
(9) The above provisions do not apply if the assets are purchased in the normal course of the company’s business, by way of compulsory enforcement or by trading on the stock exchange.
(10) (repealed)