§ 40 List of shareholders, authorisation to issue statutory instruments
(1) Once each change in the person of a shareholder or the extent of his or her participation becomes effective, the directors are, without delay, to submit to the Commercial Register a list of shareholders signed by them or bearing their qualified electronic signature and indicating the family name, given name, date of birth and place of residence of those shareholders as well as the nominal values and the consecutive numbers of each of the shares to which the shareholders have subscribed and also indicating the relevant percentage interest in the share capital conferred by the nominal value of each respective share. Where the shareholder is a company, in the case of registered companies the list must include the business name, registered office, the relevant register and number of the entry in the register, in the case of non-registered companies their shareholders including family name, given name, date of birth and place of residence under a summarising designation. Where a shareholder holds more than one share, the list of shareholders is to separately indicate the shareholder’s total interest in the share capital as a percentage. The directors are to effect changes to the list by notification and furnishing proof.
(2) Where a notary has been involved in making the changes referred to in subsection (1) sentence 1, the notary is required, without delay upon the changes becoming effective and without regard to any later grounds for them becoming ineffective, to sign the list instead of the directors or to add his or her qualified electronic signature thereto, to submit the list to the Commercial Register and send a copy of the amended list to the company. The list must be furnished together with notarial certification that the amended entries correspond to the changes in which the notary was involved and that the remaining entries correspond to the content of the last list which was included in the Commercial Register.
(3) Directors who infringe a duty incumbent upon them under subsection (1) are held jointly and severally liable for the resulting damage vis-à-vis those directors whose participation has changed and the company’s creditors.
(4) The Federal Ministry of Justice and Consumer Protection is authorised to make provision, by statutory instrument requiring the approval of the Bundesrat, concerning the content and form of the list of shareholders.
(5) The Land governments are authorised to determine, by statutory instrument, that certain information contained in the list of shareholders must be submitted to the Commercial Register in a structured, machine-readable form, unless the Federal Ministry of Justice and Consumer Protection issues corresponding provisions pursuant to section 387 (2) of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit). The Land governments may transfer this authorisation by statutory instrument to the Land departments of justice.
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