NULLITY AND VOIDABILITY Article 390

(Grounds for nullity)

In addition to the cases referred to in paragraphs (1) and (2) in connection with paragraph (3) of Article 343, Article 363 and paragraph (2) of Article 368 of this Act, a resolution of the general meeting shall also be null and void in the following cases:

– if it is adopted at a general meeting that has not been convened in accordance with paragraph (2) of Article 295 of this Act, or if the convocation was in violation of the first, second or fourth indents of paragraph (1) of Article 296 of this Act, or if the general meeting has not been convened in accordance with paragraphs (4) to (6) of Article 296 and paragraph (1) of Article 297 of this Act, unless all shareholders participate in the general meeting or are duly represented at it;

– if it has not been confirmed in accordance with paragraphs (1) and (2) of Article 304 of this Act;

– if it is incompatible with the essence of the company or if its contents are contrary to the provisions of this Act applied solely or principally to the protection of the company's creditors or are otherwise in the public interest;

– if its contents are contrary to public order or morality;

– the general meeting's resolution referred to in Article 378 of this Act shall be void if the resolution to increase the share capital and the increase in the share capital are not registered within six months; this deadline shall not expire pending the completion of nullity proceedings.

Article 391

(Deadlines for claiming nullity of resolutions)

(1) No claim for the nullity of a general meeting's resolution for the reason referred to in the second indent of the preceding Article may be enforced after the resolution has been registered.

(2) No claim for the nullity of the general meeting's decision referred to in the first, third, fourth and fifth indent of the preceding Article may be enforced three years after the registration unless a nullity action has been brought in the same deadline.

Article 392 (Nullity of elections)

In addition to the cases referred to in Article 390 of this Act, elections of the members of the supervisory board or of the board of directors shall also be void if:

– the supervisory board or the board of directors is composed in violation of the law or the articles of association;

– the general meeting elects a person who was not put forward as a candidate in accordance with the law or the articles of association; or

– more members than set out in the law of articles of association are elected.

Article 393

(Nullity assessment procedure) The nullity assessment procedure shall be expeditious.

394. Article 394

(Legal consequences of nullity)

A void resolution shall have no legal consequences. Whoever receives any benefit on the basis of a void resolution shall return to the company the entire amount of such benefit plus costs.

Article 395

(Reasons for voidability and convalidation of voidable resolutions) (1) A resolution of the general meeting shall be voidable if:

1. the contents of the decision is contrary to the law or articles of association; or

2. the adoption of the resolution violated the law or articles of association and such violations affect the validity of the decision (for instance, a resolution not voted by a sufficient majority).

(2) Notwithstanding point 2 of paragraph (1) of this Article, a resolution of the general meeting shall be voidable at all times if the shareholders' right to be informed under Article 305 of this Act is violated in connection with the adoption of the resolution.

(3) A resolution may also be voided by the fact that, in exercising his voting right, a shareholder attempted to secure for himself or for a third party special benefits to the detriment of the company or the other shareholders, if this purpose can be achieved on the basis of the resolution adopted by the general meeting, However, this shall not apply where appropriate compensation for such damage is provided to other shareholders pursuant to the resolution.

(4) A general meeting's resolution may not be voided for a violation of the provisions of Article 302 of this Act.

(5) A general meeting's resolution may no longer be annulled once the general meeting has confirmed the resolution by a new resolution, provided that no action has been lodged within the time limit for its annulment or the establishing of its nullity, or where such action has been withdrawn, or where a claim for annulment of the new resolution or for establishing its nullity has been finally refused.

(6) Notwithstanding the preceding paragraph, a person referred to in paragraph (7) of this article, who demonstrates a legal interest in having the resolution annulled for the period until the adoption of a new (confirming) resolution, may request the court to establish that the voidable resolution was not valid prior to the adoption of the new (confirming) resolution.

(7) A resolution of the general meeting may be challenged by:

– any shareholder under the conditions specified by this Act;

– the management;

– any member of a management or supervisory body if, by implementing the general meeting's resolution, such member would be committing a criminal offence or acting contrary to the law.

Article 396 (Action for annulment)

(1) Action for annulment shall be brought within one month of the date of the resolution.

This time limit shall commence as follows:

– if the plaintiff participated in the general meeting: on the closing date of the general meeting;

– if the plaintiff did not take part in the general meeting: on the date he/she became or should have become aware of the resolution.

(2) If the resolution was published, the one-month period shall commence on the date of publication.

Article 397

(Announcement of the intention to challenge the resolution)

(1) The shareholders who attended the general meeting may only challenge a resolution if they notify the general meeting forthwith of their intention to lodge action for annulment and if such notification is entered in the minutes; shareholders who did not attend the meeting may challenge a resolution only if they were unlawfully prevented from attending it, or if they were not properly invited, or if the general meeting decided on a matter that was not on the agenda.

(2) The management shall announce that the action for annulment has been lodged in the same way as it shall announce the challenged resolution.

Article 398

(Effect of repealed resolutions)

If the court annuls a resolution passed by the general meeting or declares it void, the court ruling shall apply to all shareholders and members of the management or supervisory bodies. In the case of a resolution that is entered in the register, the content of the court ruling shall be recorded ex officio. The management must publish the contents of the ruling.

Article 399

(Voidability of the Resolution on the appropriation of distributable profits)

(1) A general meeting's resolution on the appropriation of distributable profits may be challenged if it is contrary to the law or the articles of association, or if the general meeting decides not to distribute the profits to the shareholders in the amount corresponding to at least 4 % of the share capital, provided that, according to the due diligence principle, this is unnecessary given the circumstances in which the company operates,

(2) An action for annulment of the general meeting's resolution on the appropriation of distributable profits may be lodged by the shareholders whose combined interest accounts for at least one-twentieth of the share capital or the minimum issue price of EUR 400 000. If the court determines that there are circumstances that justify the appropriation of distributable profits, it shall modify the resolution adopted by the general meeting at the request of the shareholders.

Article 400

(Challenging the resolution to increase the share capital)

(1) A resolution to increase the share capital through contributions may be challenged in accordance with the provisions of Article 395 of this Act.

(2) If the shareholders' pre-emptive right has been excluded in whole or in part, the resolution may also be challenged on the grounds that the issue price or the minimum issue price of new shares has been set too low by the resolution to increase the share capital. This shall not apply if the new shares are acquired by a third party assuming the obligation to offer them to shareholders.

Article 401

(Invalidity of the annual report and voidability of the resolution to adopt the annual report)

(1) The annual report shall be invalid if:

– if its contents are contrary to the provisions of this Act applied solely or principally to the protection the company's creditors or are otherwise in the public interest;

– it should have been audited under this Act, but an audit has not been performed or has not been performed in compliance with the method and the conditions specified by the act governing auditing; or

– if the provisions of this Act or the articles of association concerning the creation (increase) or use (reduction) of capital reserves and profit reserves have been violated in the procedure for the adoption of the annual report.

(2) An annual report whose adoption has been decided by the management or supervisory body shall also be invalid if the supervisory board did not act in accordance with paragraphs (1) and (2) of Article 282 of this Act in the adoption of the annual report.

(3) If, when adopting the annual report, the general meeting has amended the compiled annual report in accordance with the second sentence of paragraph (3) of Article 293, the annual report shall also be invalid if amendments to the annual report are not examined by an auditor within two weeks of the adoption of the annual report, or if the auditor who has examined the amendments to the annual report has not given a positive opinion in respect of these amendments.

(4) An annual report that has been adopted by the general meeting shall also be invalid if the general meeting's resolution on the adoption of the annual report is null and void for the reasons laid down in the first or second indent of Article 390 of this Act.

(5) The general meeting's resolution to adopt the annual report may be challenged in accordance with the provisions of Article 395 of this Act, but may not be challenged for the lack of conformity of the contents of the annual report with the law or the articles of association.

Section 9

WINDING-UP OF A COMPANY