BaFin

Securities Acquisition and Takeover Act

Wertpapiererwerbs- und Übernahmegesetz (WpÜG)

Date: 20.12.2001

As published in the announcement of 20 December 2001 (Federal Law Gazette I p. 3822)

Last amended by Art. 2 (46) of the Act of 22 December 2011 (Federal Law Gazette I, p. 3044)

On this page:

Part 1
General Provisions

Section 1
Scope

(1) This Act shall be applied to offers for the acquisition of securities which were issued by a target company and are admitted to trading on an organised market.

(2) This Act shall be applied to takeover bids or mandatory offers for the acquisition of shares of a target company within the meaning of section 2 (3) no. 1, whose shares carrying voting rights are admitted for trading on an organised market not in Germany but in another Member State of the European Economic area, to the extent only that it regulates the control, the obligation to make an offer and provisions diverging therefrom, the information provided to the employees of a target company or offeror, the actions of a target company's board of managers that might prevent the success of an offer, or other issues governed by corporate law.

(3) Subject to section 11a, this Act shall be applied to offers for the aquisition of securities of a target company within the meaning of section 2 (3) no. 2 only if the following conditions are fulfilled:

  1. the offer is a European offer for the aquisition of securities carrying voting rights, and
    1. the securities carrying voting rights are admitted to trading on an organised market only in Germany, or
    2. the securities carrying voting rights are admitted to trading on an organised market both in Germany and in another Member State of the European Economic Area, but not in the state where the target company is domiciled, and

      1. the admission to trading was first granted by an organised market in Germany, or
      2. the admissions were granted simultaneously, and the target company has chosen the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht - BaFin) (hereinafter referred to as the "Supervisory Authority") as competent supervisory authority.

If the conditions set out in sentence 1 are fulfilled, this Act shall be applied only to the extent that it regulates issues of the consideration, contents of the offer document and the offer procedure.

(4) The Federal Ministry of Finance is authorised, by means of a Regulation not requiring the consent of the Bundesrat, to issue more detailed provisions concerning the extent to which the provisions of this Act apply to the cases referred to in subsection (2) and subsection (3).

(5) A target company within the meaning of section 2 (3) no. 2, whose shares have been simultaneously admitted to trading on an organised market in Germany and in another Member State of the European Economic Area, but not in the state in which it is domiciled, shall make a decision as to which of the supervisory authorities concerned is to be the competent authority for the supervision of a European offer for the acquisition of securities carrying voting rights. The target company shall inform the Supervisory Authority of its decision and notify the public. The Federal Ministry of Finance shall be authorised, by means of a Regulation not requiring the consent of the Bundesrat, to issue more detailed provisions about the point of time as well as the contents and form of the information and publication pursuant to sentence 2. The Federal Ministry of Finance may, by means of a Regulation, transfer this power to the Supervisory Authority.



Section 2
Definitions

(1) "Offers" means public purchase or exchange offers for the acquisition of securities of a target company which are made voluntarily or take place as a result of an obligation under this Act.

(1a) "European offers" means offers for the acquisition of securities of a target company within the meaning of subsection 3 no. 2 which, in accordance with the law of the EEA Member State in which the target company is domiciled, are considered to be offers within the meaning of Article 2 (1) point a of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (OJ EC no. L 142/12).

(2) "Securities" means

  1. shares, securities comparable to shares, certificates representing shares; and

  2. other securities whose object is the acquisition of shares, securities comparable to shares, or certificates representing shares,

even if no certificates have been issued in respect thereof.

(3) "Target companies" means

  1. stock corporations or partnerships limited by shares which are domiciled in Germany; and

  2. companies domiciled in another Member State of the European Economic Area.

(4) "Offerors" means natural or legal persons or partnerships who - alone or in concert with other persons - make, intend to make, or are obliged to make an offer.

(5) "Persons acting in concert" means natural or legal persons who coordinate with the offeror, on the basis of an agreement or in another manner, their conduct in respect of the acquisition of securities of the target company or the exercise of voting rights attached to such shares. "Persons acting in concert with the target company" means natural or legal persons who coordinate with the target company, on the basis of an agreement or in another manner, actions to prevent a takeover bid or mandatory offer. Subsidiaries, together with the person controlling them or with other subsidiaries, are deemed to be persons acting in concert.

(6) "Subsidiaries" means undertakings deemed to be subsidiaries within the meaning of Section 290 of the German Commercial Code (Handelsgesetzbuch), or over which controlling influence may be exercised, regardless of the legal form or registered office.

(7) "Organised market" means the regulated market on a domestic exchange or the regulated market in another Member State of the European Economic Area within the meaning of Article 4 (1) no. 14 of Directive 2004/39/EC of the European Parliament and the Council of 21 April 2004 on Markets in Financial Instruments, which amends Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and the Council and repeals Council Directive 93/22/EEC (OJ EC no. L 145 p.1).

(8) The "European Economic Area" (EEA) comprises the Member States of the European Communities and the countries that are signatories to the EEA Agreement.



Section 3
General Principles

(1) Holders of securities of the target company which belong to the same class shall be treated equally.

(2) Holders of securities of the target company must have sufficient time and adequate information to be able to make an informed decision about the offer.

(3) The board of management and supervisory board of the target company must act in the interests of the target company.

(4) The offeror and the target company must implement the procedure in a speedy manner. The target company must not be hindered in its business activities for more than a reasonable period of time.

(5) Trading in securities of the target company, the offeror company, or other entities affected by the offer must not result in market distortions.


Part 2
Jurisdiction of the Federal Financial Supervisory Authority


Section 4
Tasks and Powers

(1) The Supervisory Authority shall exercise the supervision of offers in accordance with the provisions of this Act. Within the scope of the tasks assigned to it, the Supervisory Authority shall remedy any grievances which might impair the proper implementation of the procedure or might be materially prejudicial to the securities market. The Supervisory Authority may issue orders that are suitable and necessary to prevent or remove such grievances.

(2) The Supervisory Authority shall perform the tasks and powers assigned to it under this Act exclusively in the public interest.



Section 5
Advisory Council

(1) An Advisory Council shall be established at the Supervisory Authority. The Advisory Council shall consist of

  1. four representatives of the issuers;

  2. two representatives each of institutional and private investors;

  3. three representatives of the investment services enterprises as defined in Section 2 (4) of the Securities Trading Act (Wertpapierhandelsgesetz);

  4. two representatives of employees;

  5. two representatives of academia.

The members of the Advisory Council shall be appointed by the Federal Ministry of Finance (Bundesministerium der Finanzen) for five years each; the appointment of the members referred to in sentence 2 nos. 1 to 4 shall take place following consultation with the relevant groups. The members of the Advisory Council must be particularly well qualified in terms of professional capacity; in particular, they must have knowledge of the manner in which the capital markets function, as well as knowledge in the area of company law, accounting, or employment law. The members of the Advisory Council shall hold their office in an honorary capacity without remuneration. Daily allowances and travel expenses at fixed rates, as determined by the Federal Ministry of Finance, shall be paid to the members for their attendance at meetings. Representatives of the Federal Ministries of Finance, of Justice, and of Economics and Technology may attend the meetings.

(2) The Federal Ministry of Finance may, by means of a Regulation not requiring the consent of the Bundesrat, issue more detailed provisions on the composition of the Advisory Council, the details of appointment of its members, premature termination of membership, the procedures, and the costs. The Federal Ministry of Finance may, by means of a Regulation, transfer this power to the Supervisory Authority.

(3) The Advisory Council shall participate in supervision. It shall advise the Supervisory Authority, in particular in respect of the issuing of Regulations for the supervisory activities of the Supervisory Authority. The Advisory Council shall submit proposals for the appointment of the honorary members of the Objections Committee and their deputies, with a majority of two thirds of its members.

(4) Meetings of the Advisory Council shall be convened by the President of the Supervisory Authority. The meetings shall be chaired by the President of the Supervisory Authority or a permanent civil servant appointed by him.

(5) The Advisory Council shall adopt rules of procedure.



Section 6
Objections Committee

(1) An Objections Committee shall be established at the Supervisory Authority. The Objections Committee shall decide on objections against orders of the Supervisory Authority pursuant to section 4 (1) sentence 3, section 10 (1) sentence 3, section 10 (2) sentence 3, section 15 (1) and (2), section 20 (1), sections 24 and 28 (1), sections 36 and 37.

(2) The Objections Committee shall consist of

  1. the President of the Supervisory Authority or a permanent civil servant appointed by him, who must be qualified to hold judicial office, as its chairman;

  2. two civil servants appointed by the President of the Supervisory Authority, as associate members
  3. three honorary associate members appointed by the President of the Supervisory Authority.

In the event of a tie, the chairman shall have the casting vote.

(3) The honorary associate members shall be appointed by the President of the Supervisory Authority as members of the Objections Committee for a period of five years.

(4) The Federal Ministry of Finance may, by means of a Regulation not requiring the consent of the Bundesrat, issue more detailed provisions on the procedures, the details of the appointment of the honorary associate members, premature termination, and deputies. The Federal Ministry of Finance may, by means of a Regulation, transfer this power to the Supervisory Authority.



Section 7
Co-operation with Domestic Supervisory Authorities

(1) The Federal Cartel Office and the Supervisory Authority shall exchange such information as is necessary for the performance of their tasks. The Supervisory Authority shall transmit to the Federal Ministry of Economics and Technology the information disclosed to it pursuant to section 10 (2) sentence 1 no. 3 and section 35 (1) sentence 4 and, upon request of the Federal Ministry, the offer document transmitted to it pursuant to section 14 (1) sentence 1 or section 35 (2) sentence 1. Section 15 of the Federal Data Protection Act (Bundesdatenschutzgesetz) shall apply to the transmission of personal data.

(2) In performing its duties under this Act, the Supervisory Authority may avail itself of private persons and agencies.



Section 8
Co-operation with Competent Bodies Abroad

(1) The Supervisory Authority shall co-operate with the bodies of other countries which are responsible for the supervision of offers for the acquisition of securities, the supervision of exchanges or other securities or derivatives markets, as well as the supervision of trading in securities and derivatives.

(2) The Supervisory Authority is entitled, within the scope of its co-operation pursuant to subsection 1, to transmit factual information necessary for the supervision of offers for the acquisition of securities or administrative or court proceedings connected therewith; when doing so, the Supervisory Authority may make use of its powers under section 40 (1) and (2). When transmitting personal data, the Supervisory Authority shall specify the purpose for which such data may be used. The recipient must be informed that the data may only be processed or used for the purpose for which they were transmitted. There shall be no transmission if there is reason to believe that said transmission would contravene the purpose of a German law. Furthermore, no transmission of personal data shall take place if this would adversely affect the interests of the person concerned, in particular if an appropriate standard of data protection would not be guaranteed in the recipient country.

(3) If a body of another country communicates personal data to the Supervisory Authority, such data may only be processed or used in compliance with the purpose specified by such body. The Supervisory Authority may communicate such data, in compliance with the purpose specified, to the exchange supervisory authorities and the trading surveillance offices of the exchanges.

(4) The provisions on mutual international assistance in criminal matters shall remain unaffected.



Section 9
Duty of Confidentiality

(1) The persons employed with the Supervisory Authority and with agencies according to section 7 (2), the persons of whom the Supervisory Authority avails itself pursuant to section 7 (2), as well as the members of the Advisory Council and associate members of the Objections Committee may not without authorisation disclose or use facts which have come to their knowledge in the course of their activities, even after termination of their employment or activity, where the secrecy of such facts is in the interests of an entity subject to this Act or a third party, in particular business and trade secrets as well as personal data. This shall also apply to other persons who, by way of official reporting, obtain knowledge of the facts referred to in sentence 1. Disclosure or use shall specifically not be deemed made without authorisation as defined in sentence 1, if facts are communicated to

  1. public prosecutor's offices or courts having jurisdiction in criminal matters or matters relating to administrative fines;

  2. bodies which, by law or official mandate, have been entrusted with the combating of restraints on competition, the supervision of offers for the acquisition of securities, the supervision of exchanges or other securities or derivatives markets, as well as the supervision of securities or derivatives trading, and the supervision of credit institutions, financial services institutions, investment companies, financial enterprises or insurance undertakings, and persons commissioned by such bodies

  3. the Federal Ministry of Economics and Technology;

to the extent that such bodies or persons require the information for performing the functions incumbent on them. The duty of confidentiality pursuant to sentences 1 to 3 shall apply mutatis mutandis to persons employed or commissioned by the bodies referred to in sentence 3. The facts may only be communicated to a foreign body if such body and the persons commissioned by it are subject to a duty of confidentiality equivalent to sentences 1 to 3.

(2) The provisions of sections 93, 97, 105 (1), section 111 (5) in conjunction with section 105 (1) and section 116 (1) of the German Tax Code (Abgabenordnung) shall not apply to the persons referred to in subsection 1, sentences 1 and 2, to the extent that they are acting in the implementation of this Act. They shall apply to the extent that the tax authorities require such knowledge to conduct proceedings arising from a criminal tax offence and tax proceedings connected therewith, where there is a compelling public interest in the prosecution of such an offence and the facts involved were not communicated to the persons referred to in subsection 1 sentences 1 or 2 by the body of another state within the meaning of subsection 1 sentence 3 no. 2 or persons commissioned by such body.

(3) The members of the Advisory Council and the honorary associate members of the Objections Committee shall be obliged by the Supervisory Authority pursuant to the Act on Obligations of Public Servants (Verpflichtungsgesetz) of 2 March 1974 (Federal Law Gazette I, p. 469, 547), as amended by Section 1 no. 4 of the Act of 15 August 1974 (Federal Law Gazette I, p. 1942), as in force at the relevant time, to fulfil their duties conscientiously.



Part 3
Offers for the Acquisition of Securities


Section 10
Publication of the Decision to Make an Offer

(1) The offeror must publish its decision to make an offer without undue delay in accordance with subsection 3 sentence 1. The obligation pursuant to sentence 1 shall also exist in the event that the decision under sentence 1 requires a resolution by the offeror's shareholders' meeting and such resolution has not yet been passed. By way of derogation from sentence 2, the Supervisory Authority may, upon application, allow the offeror not to make a publication until after the resolution of the shareholders' meeting, provided that the offeror ensures by suitable arrangements that there is no reason to fear market distortions to arise as a result thereof.

(2) Prior to a publication, the offeror must disclose the decision pursuant to subsection 1 sentence 1 to

  1. the Management Boards of the exchanges on which securities of the offeror, the target company, and other companies directly affected by the offer are admitted to trading;

  2. the Management Boards of the exchanges on which derivatives within the meaning of section 2 (2) of the Securities Trading Act (Wertpapierhandelsgesetz) are traded, in so far as the securities are the subject-matter of the derivatives; and
  3. the Supervisory Authority.

Prior to a publication, the boards may make use of the decisions disclosed to them pursuant to sentence 1 only for the purpose of deciding whether determination of the exchange price should be suspended or discontinued. The Supervisory Authority may permit offerors whose place of residence or registered office is abroad to effect the notification pursuant to sentence 1 simultaneously with the publication, provided that the decisions of the boards on the suspension or discontinuation of the determination of the exchange price are not adversely affected as a result.

(3) The announcement of the decision pursuant to subsection 1 sentence 1 must be made in the German language

  1. in the Internet and
  2. through an electronic information dissemination system with a wide circulation among credit institutions, financial services institutions, enterprises acting within the meaning of section 53 (1) of the German Banking Act (Gesetz über das Kreditwesen), other enterprises which are domiciled in Germany and admitted to trading on a domestic exchange, and insurance undertakings.

The offeror must mention also the address under which the publication of the offer document will occur on the Internet in accordance with section 14 (3) sentence 1 no. 1. A publication by any other means may not be made prior to the publication pursuant to sentence 1.

(4) The offeror must send the publication pursuant to subsection 3 sentence 1 to the management boards of the exchanges referred to in subsection 2 sentence 1 nos. 1 and 2 and to the Supervisory Authority without undue delay. This shall not apply if the Supervisory Authority has, pursuant to subsection 2 sentence 3, granted its permission that the notification pursuant to subsection 2 sentence 1 may be submitted simultaneously with the publication.

(5) Without undue delay following the publication pursuant to subsection 3 sentence 1, the offeror must notify the board of management of the target company in writing of the decision to make an offer. The board of management of the target company shall without undue delay inform the competent works council (Betriebsrat) or, where there is no such works council, the employees directly, of the notification pursuant to the sentence 1. Without undue delay following the publication pursuant to subsection 3 sentence 1, the offeror must also notify his competent works council or, where there is no such works council, the employees directly, of the decision to make an offer.

(6) Section 15 of the Securities Trading Act shall not apply in respect of decisions to make an offer.



Section 11
Offer Document

(1) The offeror must prepare and publish a document in respect of the offer (offer document). The offer document must provide such information as is required to enable a properly informed decision. The information provided must be correct and complete. The offer document must be drawn up in the German language and in a form that facilitates its comprehensibility and evaluation. The offer document must be signed by the offeror.

(2) The offer document must contain the contents of the offer and supplementary details. Information on the contents of the offer are

  1. name or commercial name and address or registered office and, where the offeror is a company, the legal form of the offeror;

  2. commercial name, registered office, and legal form of the target company;

  3. the securities to which the offer relates;

  4. type and amount of the consideration offered for the securities of the target company;
    4a. the amount of the compensation for the withdrawal of rights pursuant to section 33b (5);

  5. the conditions on which the effectiveness of the offer is dependent;

  6. commencement and end of the acceptance period.

Supplementary details are

  1. information on the necessary steps which will ensure that the offeror has at his disposal the funds required for performance of the offer in full, as well as details of the expected consequences of a successful offer for the offeror's financial position, financial performance, and earnings position;
  2. information on the offeror's intentions with regard to the future business of the target company and, in so far as he is affected by the offer, of the offeror, in particular the registered office and the location of material business units, the use of the assets, future obligations, the employees and their representatives, the members of the management bodies, and material changes to the conditions of employment, including the measures planned to be taken in that respect;
  3. information on any cash or non-cash benefits which are granted to, or the prospect of which is held out to, members of the board of management or of the supervisory board of the target company;
  4. the confirmation pursuant to section 13 (1) sentence 2 stating the commercial name, registered office, and legal form of the investment services enterprise.

(3) The offer document must specify the name and address, and in the case of legal persons or companies, the commercial name, registered office and legal form, of the persons or companies assuming responsibility for the contents of the offer document; it must contain a declaration that to the best of their knowledge the information furnished is correct and no material circumstances have been omitted.

(4) The Federal Ministry of Finance may, by means of a Regulation not requiring the consent of the Bundesrat,

  1. issue more detailed provisions on the layout of the offer document and the information to be included therein; and
  2. prescribe additional supplementary information to the extent that this is necessary to enable the recipients of the offer to form an accurate and complete judgement of the offeror, the persons acting in concert with him, and the offer.

(5) The Federal Ministry of Finance may, by means of a Regulation, transfer the power pursuant to subsection 4 to the Supervisory Authority.



Section 11a
European Passport

An offer document that has been approved by another Member State of the European Economic Area and which relates to a European offer for the acquisition of securities of a target company within the meaning of section 2 (3) no. 2, whose securities are also admitted to trading on an organised market in Germany, shall be admitted in Germany without any further approval procedure.



Section 12
Liability for the Offer Document

(1) If information in the offer document that is material for the evaluation of the offer is incorrect or incomplete, the person having accepted the offer or whose shares have been transferred to the offeror in accordance with section 39a, may claim

  1. from those persons who have assumed responsibility for the offer document, and
  2. from those persons responsible for initiating the preparation and publication of the offer document,

such persons being jointly and severally liable, compensation for any damage incurred by him as a result of the offer having been accepted by or of the shares having been transferred to him.

(2) Claims under subsection 1 above cannot be brought against those persons who prove that they were not aware of the incorrectness or incompleteness of the information contained in the offer document and that such lack of awareness was not a result of gross negligence.

(3) A claim pursuant to subsection 1 above shall not exist if

  1. the offer has been accepted other than on the basis of the offer document;
  2. the person who accepted the offer was aware of the incorrectness or incompleteness of the information furnished in the offer document at the time when he made his declaration of acceptance; or
  3. a clearly specified correction of the incorrectness or incomplete information was published in Germany prior to the acceptance of the offer by way of an announcement pursuant to section 15 (3) of the Securities Trading Act or a comparable announcement.

(4) The claim pursuant to subsection 1 shall become statute-barred one year after the time at which the person who accepted the offer, or whose shares have been transferred to the offeror in accordance with section 39a, became aware of the incorrectness or incompleteness of the information furnished in the offer document, but not later than three years after publication of the offer document.

(5) Any agreement by which the claim pursuant to subsection 1 above is reduced or waived in advance shall be invalid.

(6) Any further claims which may be asserted under civil law on the grounds of contracts or intentional tort shall remain unaffected.



Section 13
Financing of the Offer

(1) Prior to the announcement of the offer document, the offeror must take the steps necessary to ensure that he has at his disposal at the time at which the claim for consideration falls due the necessary means for performing the offer in full. Where the offer provides for a cash payment as consideration, an investment services enterprise which is independent of the offeror shall confirm in writing that the offeror has taken the steps necessary to ensure that the means required to perform the offer in full are available at the time at which the claim for cash payment falls due.

(2) If the offeror has not taken the steps which are necessary pursuant to subsection 1 sentence 2 and if for that reason he does not have at his disposal the necessary means at the time at which the claim for the cash payment falls due, the person who has accepted the offer may claim from the investment services enterprise which issued the written confirmation compensation for any damage incurred as a result of the incomplete performance.

(3) Section 12 (2) to (6) shall apply mutatis mutandis.



Section 14
Transmission and Publication of the Offer Document

(1) The offeror must transmit the offer document to the Supervisory Authority within four weeks of the publication of the decision to make an offer. The Supervisory Authority shall confirm the date of receipt of the offer document to the offeror. The Supervisory Authority may, upon application, extend the time limit pursuant to sentence 1 by up to four weeks if as a result of a cross-border offer or necessary capital measures it is not possible for the offeror to comply with the time limit pursuant to sentence 1.

(2) The offer document shall be published without undue delay pursuant to subsection 3 sentence 1 if the Supervisory Authority has permitted the publication or if ten working days have elapsed since receipt of the offer document without the Supervisory Authority having prohibited the offer. The offer document may not be publicised prior to publication pursuant to sentence 1. The Supervisory Authority may extend the time limit specified in sentence 1 by up to five working days if the offer document is incomplete or otherwise fails to comply with the provisions of this Act or any Regulation adopted under this Act.

(3) The offer document shall be published

  1. by announcement on the Internet; and
  2. by announcement in the Federal Gazette (Bundesanzeiger) or by making it available for distribution free of charge at a suitable agency in Germany; in the latter case, the agency holding the offer document, and the address where the publication of the offer document was made in accordance with no. 1, shall be specified in the Federal Gazette .

The offeror shall without undue delay inform the Supervisory Authority of the publication pursuant to sentence 1 no. 2.

(4) The offeror shall transmit the offer document to the board of management of the target company without undue delay following the publication pursuant to subsection (3) sentence 1. The board of management of the target company shall without undue delay transmit the offer document to the competent works council or, where there is no such works council, to the employees directly. The offeror shall also without undue delay following the publication pursuant to subsection (3) sentence 1 transmit the offer document to the competent works council or where there is no such works council, to the employees directly.


Section 15
Prohibition of the Offer

(1) The Supervisory Authority shall prohibit the offer if

  1. the offer document fails to contain the information required pursuant to section 11 (2) or a Regulation issued under section 11 (4);
  2. the information contained in the offer document obviously contravenes provisions of this Act or a Regulation issued under this Act;
  3. in contravention of section 14 (1) sentence 1, the offeror fails to submit the offer document to the Supervisory Authority; or
  4. in contravention of section 14 (2) sentence 1, the offeror has failed to publish the offer document.

(2) The Supervisory Authority may prohibit the offer if the offeror fails to effect the publication in the form prescribed in section 14 (3) sentence 1.

(3) Where the offer has been prohibited pursuant to subsections 1 or 2, publication of the offer document shall be prohibited. A legal transaction based on an offer that is prohibited pursuant to subsections 1 or 2 shall be void.


Section 16
Acceptance Periods; Convening of General Meeting

(1) The period for acceptance of the offer (acceptance period) may not be less than four weeks and, without prejudice to the provisions set forth in section 21 (5) and section 22 (2), not more than ten weeks. The acceptance period shall commence upon publication of the offer document in accordance with section 14 (3) sentence 1.

(2) In the case of a takeover bid, the shareholders of the target company who have not accepted the offer may accept the offer within two weeks of the publication referred to in section 23(1) sentence 1 no. 2 (additional acceptance period). Sentence 1 shall not apply if the offeror has made the offer subject to the acquisition of a minimum proportion of shares and such minimum proportion has not been achieved upon expiry of the acceptance period.

(3) If, in connection with the offer, a general meeting of the target company is convened following publication of the offer document, the acceptance period shall, without prejudice to the provisions of section 21 (5) and section 22 (2), be ten weeks from the publication of the offer document. The board of management of the target company shall notify the offeror and the Supervisory Authority without undue delay of the convening of the general meeting. The offeror shall publish the notification pursuant to the sentence 2 without undue delay in the Federal Gazette, stating the date of expiry of the acceptance period. The offeror shall without undue delay inform the Supervisory Authority of the publication.

(4) The general meeting referred to in subsection (3) must be convened at least 14 days prior to the date of the meeting. The day of the convening of the general meeting shall not be counted. Section 121 (7) of the Stock Corporation Act (Aktiengesetz) shall apply mutatis mutandis. By way of derogation from section 121 (5) of the Stock Corporation Act and any provisions of the articles of association, the company shall be free in its choice of venue for the meeting. Where the period is less than the period specified in section 123 (1) of the Stock Corporation Act, at least four days must elapse between registration and the meeting, and notifications pursuant to section 125 (1) sentence 1 of the Stock Corporation Act must be submitted without undue delay; section 121 (7), section 123 (2) sentence 4 and section 125 (1) sentence 2 of the Stock Corporation Act shall apply mutatis mutandis. The company shall facilitate the granting of proxies to the shareholders to the extent possible under applicable law and the articles of association. Notifications to shareholders, a report pursuant to section 186 (4) sentence 2 of the Stock Corporation Act, and motions filed by shareholders in time shall be made available to all shareholders and shall be published in summary form. It is not necessary to send out notifications if the board of management, with the consent of the supervisory board, is convinced that they are unlikely to be received by the shareholders on time.



Section 17
Inadmissibility of Public Invitation to Make Offers

A public invitation by the offeror for the submission of offers by the holders of securities, aimed at acquiring securities of the target company, shall be inadmissible.


Section 18
Conditions; Inadmissibility of Reservation of the Right to Rescind and Right of Revocation

(1) Subject to section 25, an offer may not be made subject to conditions the fulfilment of which the offeror, persons acting in concert with him, or subsidiaries of the latter, or advisers acting for such persons or enterprises in connection with the offer, can establish exclusively by themselves.

(2) An offer made with the reservation of a right of revocation or right to rescind is inadmissible.


Section 19
Allocation in the Case of Partial Offers

If, in the case of an offer which is aimed at the acquisition of only a specific proportion or a specific number of securities, the proportion or the number of the securities which the offeror can acquire is greater than the proportion or the number of securities which the offeror has undertaken to acquire, the declarations of acceptance must, on principle, be considered on a pro rata basis.


Section 20
Trading Portfolio

(1) The Supervisory Authority shall, upon written application by the offeror, permit securities of the target company to remain unconsidered for the purposes of the supplementary details as per section 11 (4) no. 2, the publication duties as per section 23, the calculation of the percentage of voting rights as per section 29 (2), and the determination of the consideration as per section 31 (1), (3) and (4), and the cash payment as per section 31 (5).

(2) An application for exemption pursuant to subsection 1 may be filed if the offeror, persons acting in concert with him, or subsidiaries of the latter

  1. hold or intend to hold the relevant securities in order to make short-term use of the existing or expected differences between the purchase price and the selling price, and
  2. substantiate that the securities, to the extent that they are voting shares, were not acquired with the intention of exerting influence over the company's management.

(3) Voting rights attached to shares which are disregarded as a result of an exemption pursuant to subsection 1 may not be exercised if, in the event of them being considered, an offer would have to be made in the form of a takeover bid or an obligation would exist pursuant to section 35 (1) sentence 1 and section 35 (2) sentence 1.

(4) If the offeror no longer intends to hold, for the purposes referred to in subsection 1 no. 1, securities for which an exemption has been granted pursuant to subsection 1, or if he intends to exert influence over the management of the company, the Supervisory Authority must be informed without undue delay. In addition to a revocation pursuant to the provisions of the Act on Administrative Procedures (Verwaltungsverfahrensgesetz), the Supervisory Authority may revoke the exemption pursuant to subsection 1 if the obligation pursuant to sentence 1 has not been fulfilled.


Section 21
Adjustments to the Offer

(1) The offeror may, up to one working day prior to the expiry of the acceptance period,

  1. increase the consideration;
  2. offer a different consideration as an alternative;
  3. reduce the minimum proportion or the minimum number of securities, or the minimum percentage of voting rights upon the acquisition of which the offeror has made contingent the effectiveness of the offer; or
  4. waive conditions.

The publication of the adjustment pursuant to subsection 2 shall be decisive for the purposes of compliance with the time limit pursuant to sentence 1.

(2) The offeror shall, without undue delay, publish the adjustment to the offer, in accordance with section 14 (3) sentence 1, including a reference to the right of rescission pursuant to subsection (4). Section 14 (3) sentence 2 and subsection (4) shall apply mutatis mutandis.

(3) Section 11 (1) sentences 2 to 5, subsection (3), sections 12, 13 and 15 (1) no. 2 shall apply mutatis mutandis.

(4) In the event of an adjustment to the offer being effected, the holders of securities of the target company who accepted the offer prior to the announcement of the adjustment as per subsection 2 above may withdraw from the contract up to the expiry of the acceptance period.

(5) In the event of an adjustment to the offer being effected, the acceptance period shall be extended by two weeks, provided that the announcement of the adjustment is made within the last two weeks prior to the expiry of the offer period. This shall also apply if the adjusted offer contravenes legal provisions.

(6) A further adjustment of the offer within the two-week period referred to in subsection 5 shall be inadmissible.


Section 22
Competing Offers

(1) Competing offers are offers made by a third party during the acceptance period of an offer.

(2) If, in the event of competing offers, the acceptance period for the offer expires prior to the expiry of the acceptance period for the competing offer, the expiry of the acceptance period for the offer shall be determined by the expiry of the acceptance period for the competing offer. This shall also apply if the competing offer is modified or prohibited or contravenes legal provisions.

(3) Holders of securities of the target company who have accepted the offer may withdraw from the contract any time prior to the expiry of the acceptance period, provided that the contract was concluded prior to the publication of the offer document for the competing offer.


Section 23
Publication Duties of the Offeror following the Making of the Offer

(1) The offeror shall be obliged to publish, in accordance with section 14 (3) sentence 1, and to notify the Supervisory Authority of the number of securities of the target company to which he, the persons acting in concert with him, and subsidiaries of the latter are entitled, including the extent of the relevant proportions and of the holdings of voting rights to which he is entitled and which are attributable to him pursuant to section 30, the amount of voting rights to be notified to the Supervisory Authority pursuant to sections 25 and 25a of the Securities Trading Act as well as the number of securities subject to the offer (including the extent of the proportions of securities and voting rights) in respect of which he has received declarations of acceptance, such publication and notification to take place

  1. on a weekly basis following publication of the offer document, and on a daily basis in the last week prior to the expiry of the acceptance period;
  2. without undue delay after the expiry of the acceptance period;
  3. without undue delay after the expiry of the additional acceptance period; and
  4. without undue delay after a shareholding has been reached that is necessary for a squeeze-out pursuant to section 39a (1) and (2).

Section 14 (3) sentence 2 and section 31 (6) shall apply mutatis mutandis.

(2) If in the case of takeover bids in which the offeror obtained control of the target company and in the case of mandatory offers the offeror, persons acting in concert with him, or subsidiaries of the latter acquire shares in the target company outside of the offer procedure, after publication of the offer document and prior to expiry of one year after the publication pursuant to subsection 1 no. 2, the offeror must, without undue delay, publish in accordance with section 14 (3) sentence 1 and notify the Supervisory Authority of the extent of the proportions of shares and holdings of voting rights acquired, stating the type and amount of consideration provided in each case. Section 31 subsection (6) shall apply mutatis mutandis.


Section 24
Cross-border Offers

If the offeror, in the event of cross-border offers, is also required to comply with regulations of another country outside the European Economic Area and if for this reason it is unreasonable to expect the offeror to make an offer to all holders of securities, the Supervisory Authority may permit the offeror upon application to exclude from the offer specific holders of securities whose place of residence, registered office or place of habitual abode is in such country


Section 25
Resolution of the Offeror's Meeting of Shareholders

If the offeror makes the offer conditional upon a resolution of his shareholders' meeting, the offeror must arrange for such a resolution to be adopted without undue delay and at the latest by the fifth working day prior to the expiry of the acceptance period.


Section 26
Exclusion Period

(1) If an offer has been prohibited pursuant to section 15 (1) or (2), a renewed offer by the offeror shall be inadmissible prior to the expiry of one year. The same shall apply in the event that the offeror has made an offer dependent on the acquisition of a minimum proportion of the securities and such minimum proportion has not been achieved upon expiry of the acceptance period. Sentences 1 and 2 shall not apply if the offeror is obliged to effect a publication pursuant to section 35 (1) sentence 1 and to make an offer pursuant to section 35 (2) sentence 1.

(2) Upon written application, the Supervisory Authority may exempt the offeror from the prohibition contained in subsection 1 sentences 1 and 2 if the target company consents to such exemption.


Section 27
Statement by the Board of Management and the Supervisory Board of the Target Company

(1) The board of management and the supervisory board of the target company shall issue a substantiated statement on the offer and any modifications thereof. The statement must, in particular, deal with

  1. the type and amount of the consideration being offered;
  2. the expected consequences of a successful offer for the target company, the employees and their representative bodies, the terms and conditions of employment, and the business locations of the target company;
  3. the objectives pursued by the offeror with the offer;
  4. the intention of the members of the board of management and the supervisory board regarding acceptance of the offer, insofar as they hold securities of the target company.

(2) If a statement on the offer is submitted to the board of management by the competent works council or, where there is no such works council, the employees of the target company directly, the board of management board must append this statement to its own statement, without prejudice to its obligation pursuant to subsection 3 sentence 1.

(3) The board of management and the supervisory board of the target company must publish the statement in accordance with section 14 (3) sentence 1 without undue delay after transmission by the offeror of the offer document and modifications thereof. At the same time, they must submit the statement to the competent works council or, where there is no such works council, the employees directly. The board of management and the supervisory board of the target company must, without undue delay, inform the Supervisory Authority of such publication in accordance with section 14 (3) sentence 1 no. 2.


Section 28
Advertising

(1) In order to counteract abuse relating to advertising in connection with offers for the acquisition of securities, the Supervisory Authority may prohibit certain types of advertising.

(2) The Advisory Council shall be consulted prior to taking any general measures pursuant to subsection 1.


Part 4
Takeover Bids


Section 29
Definitions

(1) Takeover bids are offers which are aimed at gaining control.

(2) Control is the holding of at least 30 per cent of the voting rights in the target company.


Section 30
Attribution of Voting Rights

(1) The following voting rights attached to shares in the target company shall be equivalent to the voting rights of the offeror:

  1. voting rights of a subsidiary of the offeror;
  2. voting rights of a third party which are held by such third party for the account of the offeror;
  3. voting rights which were assigned as security by the offeror to a third party, unless such third party is authorised to exercise the voting rights attached to the shares and declares its intention to do so independently of the offeror's instructions;
  4. voting rights in respect of which usufruct has been created in favour of the offeror;
  5. voting rights which may be acquired by the offeror by a declaration of intent;
  6. voting rights which have been entrusted to the offeror or which he may exercise by means of proxy voting, provided that the offeror may exercise the voting rights attached to the shares at his own discretion in the absence of specific instructions from the shareholder.

For the purpose of attribution pursuant to sentence 1 nos. 2 to 6, subsidiaries of the offeror shall be deemed equivalent to the offeror. Any voting rights of a subsidiary shall be attributed in full to the offeror.

(2) Any voting rights attached to shares in the target company which belong to a third party shall also be attributed to the offeror in full if the offeror or his subsidiary coordinates, on the basis of an agreement or in another manner, his conduct with such third party in respect of the target company; agreements in individual cases shall be excluded. Coordinated conduct requires that the offeror or his subsidiary and the third party reach a consensus on the exercise of voting rights or collaborate in another manner with the aim of bringing about a permanent and material change in the target company’s business strategy. Subsection (1) shall apply mutatis mutandis to the calculation of the percentage of voting rights held by the third party.

(3) For the purpose of attribution of voting rights pursuant to this provision, an investment services enterprise shall not be deemed a subsidiary within the meaning of section 2 (6) in respect of the holdings which are managed by such enterprise as part of an investment service pursuant to section 2 (3) sentence 1 no. 7 of the Securities Trading Act (Wertpapierhandelsgesetz), provided that following conditions are satisfied:

  1. the investment services enterprise may only exercise the voting rights attached to the shares concerned on the basis of instructions given in writing or by electronic means, or if it ensures by putting into place appropriate mechanisms that portfolio management services are conducted independently of any other services and under conditions equivalent to those provided for under Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS)(OJ EC No. L 375 p. 3) ) last amended by Article 9 of Directive 2005/1/EC of the European Parliament and of the Council of 9 March 2005 (OJ EU No. L 79 p. 9); and

  2. exercises its voting rights independently from the offeror;

  3. the offeror informs the Supervisory Authority of the name of the investment services enterprise and of the competent authority responsible for the supervision of the investment services enterprise or the lack of such authority; and

  4. the notifying party declares to the Supervisory Authority that the conditions under no. 2 are satisfied.

However, in respect of the attribution of voting rights, an investment services enterprise shall be deemed a subsidiary within the meaning of section 2 (6) if the offeror or another subsidiary of the offeror owns shares in holdings managed by the investment services enterprise, and the investment services enterprise may not exercise the voting rights attached to such holdings at its own discretion but only under direct or indirect instructions from the offeror or another subsidiary of the offeror.

The Federal Ministry of Finance may, by means of a Regulation not requiring the consent of the Bundesrat, issue more detailed provisions concerning the circumstances under which, in the case of subsection (3), the investment services enterprise is deemed to be independent from the offeror.


Section 31
Consideration

(1) The offeror must offer the shareholders of the target company adequate consideration. In determining the adequate consideration, the average stock exchange price of the shares of the target company and acquisitions of shares of the target company by the offeror, persons acting in concert with him, or subsidiaries of the latter, shall generally be taken into account.

(2) The consideration must be in the form of a cash payment in euro or liquid shares admitted to trading on an organised market. If holders of voting shares are offered shares as consideration, such shares must also confer voting rights.

(3) The offeror must offer the shareholders of the target company a cash payment in euro if the offeror, persons acting in concert with him, or subsidiaries of the latter have acquired in return for a cash payment at least five per cent in aggregate of the shares or voting rights in the target company in the six months prior to the announcement pursuant to section 10 (3) sentence 1.

(4) If the offeror, persons acting in concert with him, or subsidiaries of the latter, acquire shares in the target company following publication of the offer document and prior to the publication pursuant to section 23 (1) sentence 1 no. 2, and if the consideration provided or agreed therefor exceeds the value of the consideration specified in the offer, the consideration owed to the recipients of the offer of the class of shares concerned shall increase by the amount of the difference.

(5) If the offeror, persons acting in concert with him, or subsidiaries of the latter, acquire shares in the target company off-market within one year of the publication pursuant to section 23 (1) sentence 1 no. 2 and if the consideration provided or agreed therefor exceeds the value of the consideration specified in the offer, the offeror shall be obliged to make to the holders of the shares who accepted the offer a cash payment in euro in the amount of the difference. Sentence 1 shall not apply to the acquisition of shares in connection with a statutory obligation to make a compensation payment to shareholders of the target company and to the acquisition of the entire or individual assets of the target company by way of a merger, demerger, or transfer of assets.

(6) Agreements under which the transfer of title to shares may be requested shall be treated as equivalent to an acquisition within the meaning of subsections 3 to 5. The exercise of a statutory subscription right on account of an increase of the target company's share capital shall not be deemed an acquisition.

(7) The Federal Ministry of Finance may, by means of a Regulation not requiring the consent of the Bundesrat, issue more detailed provisions on the adequacy of the consideration as per subsection 1, in particular the taking into account of the average stock exchange price of the shares in the target company and acquisitions of shares in the target company by the offeror, persons acting in concert with him, and subsidiaries of the latter and the periods relevant for this purpose, as well as on exceptions to the principle referred to in subsection 1 sentence 2 and the calculation of the amount of difference pursuant to subsections 4 and 5. The Federal Ministry of Finance may, by means of an Ordinance, delegate this power to the Supervisory Authority.


Section 32
Inadmissibility of Partial Offers

A takeover offer relating to only part of the shares in the target company shall, without prejudice to the provisions of section 24, be inadmissible.


Section 33
Actions of the Board of Management of the Target Company

(1) After publication of the decision to make an offer and until publication of the result pursuant to section 23 (1) sentence 1 no. 2, the board of management of the target company may not take any actions which could prevent the success of the offer. This does not apply to actions which a prudent and conscientious manager of a company not affected by a takeover bid would have taken, to endeavours to find a competing offer, or to actions consented to by the supervisory board of the target company.

(2) If the general meeting authorises the board of management prior to the period referred to in subsection 1 sentence 1 to take actions falling within the competence of the general meeting in order to prevent the success of takeover bids, such actions shall be specified in detail in the authorisation. The authorisation may be granted for a maximum term of 18 months. The resolution by the general meeting requires a majority of at least three quarters of the share capital represented at the vote; the articles of association may provide for a larger majority and further requirements. Any actions by the board of management on the basis of an authorisation pursuant to sentence 1 shall require the consent of the supervisory board.

(3) (repealed)


Section 33a
European Restriction on Frustrating Action

(1) The articles of association of a target company may provide that section 33 shall not apply. In this case, the provisions defined in subsection (2) shall be applicable.

(2) From the publication of the decision to make an offer until publication of the result pursuant to section 23 (1) sentence 1 no. 2, the board of management and the supervisory board of the target company may not take any actions which could prevent the success of the offer. This shall not apply to

  1. actions to which the board of management and the supervisory board have been authorised by the general meeting after publication of the decision to make an offer;
  2. actions taken in the normal course of business;
  3. actions taken outside the normal course of business, to the extent that they serve the realisation of decisions that were made and partially realised prior to the decision to make an offer; and
  4. the search for competing offers.

(3) Without undue delay, the board of management of the target company must inform the Supervisory Authority and the supervisory authorities of those Member States of the European Economic Area in which the company's securities are admitted to trading on an organised market of the fact that the target company has decided on a provision in the articles of association pursuant to subsection (1) sentence 1.


Section 33b
European Breakthrough Rule

(1) The articles of association of a target company may provide that subsection (2) shall apply.

(2) The following provisions shall apply following the publication of the offer document pursuant to section 14 (3) sentence 1:

  1. during the period for acceptance of a takeover bid, restrictions on the transfer of shares under the articles of association that have been agreed between the target company and the shareholders or between shareholders shall not apply vis-à-vis the offeror;
  2. during the period for acceptance of a takeover bid, voting agreements shall have no effect at the general meeting deciding on defensive measures, and multiple-voting shares shall carry only one vote each;
  3. at the first general meeting, convened by the offeror for the purpose of amending the articles of association or deciding on the appointment or removal of the company's board members, voting agreements and powers to appoint board members shall have no effect and multiple-voting shares shall carry only one vote each provided that, following the takeover bid, the offeror holds at least 75 per cent of the target company's voting rights.

Sentence 1 shall not apply to non-voting preference shares nor to restrictions on the transfer of shares and voting agreements signed between the target company and the shareholders or between the shareholders prior to 22 April 2004.

(3) Without undue delay, the board of management of the target company must inform the Supervisory Authority and the supervisory authorities of those Member States of the European Economic Area in which the company's securities are admitted to trading on an organised market of the fact that the target company has decided on a provision in the articles of association pursuant to subsection (1).

(4) Section 16 (4) shall apply mutatis mutandis to the convening and holding of the general meeting in accordance with subsection (2) sentence 1 no. 3.

(5) Where rights are removed on the basis of subsection (1), the offeror shall be obliged to provide equitable compensation in cash, provided that the rights were established prior to the publication of the decision to make an offer pursuant to section 10 (1) sentence 1 and are known to the target company. The claim for compensation pursuant to sentence 1 may only be enforced by court action until the expiry of two months after the removal of the rights.


Section 33c
Reservation of the Right of Reciprocity

(1) The general meeting of a target company whose articles of association exclude the applicability of section 33 may decide that section 33 shall apply if the offeror or a company controlling the offeror is not subject to a provision equivalent to section 33a (2).

(2) The general meeting of a target company whose articles of association contain a provision pursuant to section 33 (1) may decide that this provision shall not apply if the offeror or a company controlling the offeror is not subject to a rule equivalent to this provision.

(3) The reservation of the right of reciprocity pursuant to subsections (1) and (2) may be established by way of a resolution. The resolution of the general meeting shall be valid for a maximum period of 18 months. Without undue delay, the board of management of the target company must provide information on the authorisation to the Supervisory Authority and the supervisory authorities of those Member States of the European Economic Area in which the company's shares carrying voting rights are admitted to trading on an organised market. The authorisation must be published on the target company's website without undue delay.


Section 33d
Prohibition on the Provision of Unjustified Payments or Benefits

The offeror and persons acting in concert with him shall be prohibited from providing, or holding out the prospect of, unjustified cash payments or other unjustified benefits in money's worth to members of the board of management or supervisory board of the target company in connection with the offer.


Section 34
Application of the Provisions of Part 3

Unless the above provisions require otherwise, the provisions of Part 3 shall apply to takeover bids.


Part 5
Mandatory Offers


Section 35
Duty to Publish and Make an Offer

(1) Any person who gains control of a target company directly or indirectly must, without undue delay and within seven calendar days at the latest, publish that fact in accordance with section 10 (3) sentence 1 and 2, stating the extent of his percentage of voting rights. The period shall commence at the time the offeror becomes aware, or ought to have become aware given the circumstances, that he has gained control of the target company. In such publication, the voting rights to be attributed pursuant to section 30 shall be specified separately for each element of attribution. Section 10 (2) and (3) sentence 3 and section 10 (4) to (6) shall apply mutatis mutandis.

(2) The offeror must submit an offer document to the Supervisory Authority and publish an offer pursuant to section 14 (2) sentence 1 within four weeks of publication of the attainment of control of a target company. Section 14 (2) sentence 2 and section 14 (3) and (4) shall apply mutatis mutandis. The target company's own shares, shares in the target company owned by a dependent or majority-owned entity of the target company, as well as shares in the target company owned by a third party but held for the account of the target company or a dependent or majority-owned entity of the target company shall be exempt from the obligation pursuant to sentence 1.

(3) If control of the target company is acquired as the result of a takeover bid, the obligations pursuant to subsection (1) sentence 1 and subsection (2) sentence 1 shall not apply.


Section 36
Non-consideration of Voting Rights

Upon written application, the Supervisory Authority shall permit voting rights from shares in the target company to remain unconsidered when calculating the percentage of voting rights, if such shares were acquired by way of

  1. inheritance, division of estate or gratuitous dispositions among spouses, life partners or relatives in direct line and up to the third degree, or by way of division of assets in the event of the dissolution of a marriage or life partnership;
  2. change of legal form; or
  3. restructuring within a group of companies.


Section 37
Exemption from the Duty to Publish and Make an Offer

(1) The Supervisory Authority may, upon written application, exempt the offeror from the duties pursuant to section 35 (1) sentence 1 and section 35 (2) sentence 1 if, having regard to the interests of the applicant and the holders of shares in the target company, this appears justified in view of the manner of attainment, the objectives being pursued with the attainment of control, a drop below the control threshold subsequent to the attainment of control, the shareholder structure of the target company, or the actual possibility of exercising control.

(2) The Federal Ministry of Finance may, by means of a Regulation not requiring the consent of the Bundesrat, issue more detailed provisions about the exemption from the duties pursuant to section 35 (1) sentence 1 and section 35 (2) sentence 1. The Federal Ministry of Finance may, by means of a Regulation, transfer this power to the Supervisory Authority.


Section 38
Claim for Interest

The offeror shall be obliged to pay to the shareholders of the target company interest on the consideration for the term of the contravention, in the amount of five percentage points per annum above the relevant base interest rate pursuant to section 247 of the Civil Code (Bürgerliches Gesetzbuch), if

  1. the offeror, contrary to section 35 (1) sentence 1, fails to effect a publication in accordance with section 10 (3) sentence 1;
  2. the offeror, contrary to section 35 (2) sentence 1, fails to make an offer in accordance with section 14 (3) sentence 1; or
  3. the offeror has been prohibited pursuant to section 15 (1) no. 1, 2 or 3 from making an offer within the meaning of section 35 (2) sentence 1,


Section 39
Application of the Provisions of Part 3 and 4

The provisions of Part 3 and Part 4 shall apply mutatis mutandis to offers pursuant to section 35 (2) sentence 1, with the exception of section 10 (1) sentence 1, section 14 (1) sentence 1, section 16 (2), section 18 (1), and sections 19, 25, 26, and 34.


Part 5a
Squeeze-out, the Right of Sell-out


Section 39a
Squeeze-out of Remaining Shareholders

(1) Following a takeover bid or mandatory offer, the remaining voting shares shall be transferred upon application to the offeror holding shares in the target company representing not less than 95 per cent of the capital carrying voting rights, by means of a court order and against payment of an equitable compensation. If the offeror simultaneously holds shares representing 95 per cent of the target company's share capital, the remaining non-voting preference shares shall also be transferred to the offeror upon application.

(2) Section 16 (2) and (4) of the German Stock Corporation Act shall apply mutatis mutandis to the determination of the necessary shareholding thresholds pursuant to subsection (1).

(3) The compensation shall take the same form as the consideration offered in connection with a takeover bid or mandatory offer. Consideration in cash shall always be offered as an alternative. The consideration offered in connection with a takeover bid or mandatory offer shall be considered to be fair where the offeror has acquired, on account of the offer, shares representing not less than 90 per cent of the share capital comprised in the bid. The acceptance threshold shall be determined separately for voting and non-voting shares.

(4) An application for the transfer of the shares pursuant to subsection (1) must be filed within three months after the end of the acceptance period. The offeror may file the application once the takeover bid or mandatory offer has been accepted to an extent that, upon implementation of the bid, the offeror will hold shares representing at least the minimum proportion of the target company's voting or total share capital that is required for a squeeze-out.

(5) The decision on the application lies solely with the Regional Court of Frankfurt am Main (Landgericht Frankfurt am Main).

(6) After an application has been filed, sections 327a to 327f of the Stock Corporation Act shall not apply up until the final and legally binding conclusion of the squeeze-out procedure.


Section 39b
Squeeze-out Procedure

(1) Unless otherwise provided in subsections (2) to (5), the Act on Proceedings in Family Matters and Matters Relating to Voluntary Jurisdiction (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit) shall apply to the squeeze-out procedure pursuant to section 39a.

(2) The Regional Court shall announce the application for squeeze-out pursuant to section 39a in the newspapers authorised to publish company announcements (Gesellschaftsblätter).

(3) The Regional Court decides on the application by way of an order setting out the grounds for the decision. The court order shall be issued at the earliest one month following the announcement of the application in the Federal Gazette and shall be issued only if the offeror has provided credible evidence that he holds shares representing at least the minimum proportion of the target company's voting or total share capital that is required for a squeeze-out. An appeal against the Regional Court's decision shall be possible; it shall have suspensive effect.

(4) The Regional Court shall serve its order upon the applicant and the target company and, to the extent that they have been heard in the court order procedure, to the other shareholders of the company. The Regional Court shall further announce its decision, without providing grounds, in the newspapers authorised to publish company announcements. The applicant and the other shareholders of the target company shall be entitled to appeal. The appeal period shall commence upon announcement of the decision in the Federal Gazette;however not before service of the decision to the applicant and the other shareholders who have been served the decision.

(5) The decision shall take effect only when it is final and absolute. It shall take effect for and against all shareholders. Upon final and absolute decision, all shares of the remaining shareholders shall pass to the shareholder entitled to squeeze-out. If certificates have been issued in respect of such shares, they shall certify, until they have been handed over, only the claim to an equitable compensation. The target company's board of management shall without undue delay submit the final and absolute decision to the Commercial Register (Handelsregister).

(6) The Court Fee Regulation (Kostenordnung) shall apply to all costs of the proceedings. For first instance proceedings, four times the total fee shall be charged. For proceedings in an appeal, the same fee shall be charged; this shall also apply if the appeal has been successful. If the application or appeal is withdrawn before the end of the day on which the court decision is served, the fee pursuant to sentence 2 shall be reduced. The value of the subject matter shall be deemed to be the sum corresponding to the value of all shares affected by the squeeze-out; it shall be at least 200,000 euros and may not exceed 7.5 million euros. The relevant date for determining the value shall be the date of filing of the application. The applicant shall be the sole debtor of the court costs. The court shall order that the costs of the opponents required for settling the matter are to be reimbursed, in whole or in part, by the applicant where this is equitable.


Section 39c
The Right of Sell-out

Following a takeover bid or mandatory offer, the shareholders of a target company who have not accepted the offer may accept it within three months after the end of the acceptance period if the offeror is entitled to file an application pursuant to section 39a. If the offeror fails to comply with the obligations pursuant to section 23 (1) sentence 1 no. 4 or sentence 2, the three-month acceptance period established in sentence 1 shall not commence until the obligations have been fulfilled.


Part 6
Procedures


Section 40
Powers of Investigation of the Supervisory Authority

(1) The Supervisory Authority may require the provision of information, submission of documentation and surrender of copies from anyone, as well as summon and question persons, to the extent that these measures are necessary based on evidence for monitoring compliance with the requirements and prohibitions of this Act. In particular, it may require details concerning changes in holdings of financial instruments as well as information about the identities of other persons, especially the principal and the persons acquiring rights or incurring liabilities from transactions. Statutory rights to provide or refuse to provide information as well as statutory obligations to confidentiality remain unaffected.

(2) During normal business hours, employees of the Supervisory Authority and the persons commissioned by it shall be permitted to enter the property and business premises of persons required to provide information pursuant to subsection (1) insofar as this is necessary for the performance of their functions which are set out in this Act. Outside of normal business hours or if the business premises are located in residential property, entry without permission shall be allowed and must be tolerated only to the extent that this is necessary to prevent imminent danger to public safety and order and if there is evidence indicating contravention of a prohibition or requirement of this Act by the person required to provide this information. The basic right granted by Article 13 of the German Basic Law (Grundgesetz) is, to this extent, restricted.

(3) A person obliged to furnish information may refuse to do so in respect of any questions, the answers to which would place himself or one of his relatives as designated in section 383 (1) nos. 1 to 3 of the German Code of Civil Procedure (Zivilprozessordnung) at risk of criminal prosecution or proceedings under the German Act on Breaches of Administrative Regulations (Gesetz über Ordnungswidrigkeiten). The person obliged to furnish information must be informed about his right to refuse to do so.


Section 41
Objections Procedure

(1) Prior to lodging an appeal, the legality and expediency of the orders issued by the Supervisory Authority shall be reviewed in an objections procedure. Such review shall not be required if the remedial decision or the decision on the objection contains a gravamen for the first time. Unless otherwise provided in this Act, the objections procedure shall be governed by sections 68 to 73 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung).

(2) The Supervisory Authority shall make its decision within two weeks of receipt of the objection. In the event of particular factual or legal difficulties or a considerable number of objections procedures, the Supervisory Authority may extend the time limit by a non appealable order.

(3) The parties involved shall cooperate in the ascertainment of the relevant facts as befits an approach aimed at furthering the procedure and concluding it in a speedy manner. Time limits may be set for the parties involved, after the expiry of which further submissions shall be disregarded.

(4) The Objections Committee may, by means of a non-appealable order and without oral proceedings, transfer the procedure to the chairman for his sole decision. Such transfer shall only be permissible if the matter involves no material factual or legal difficulties and the decision will not be of fundamental importance.


Section 42
Immediate Enforceability

An objection against actions taken by the Supervisory Authority pursuant to section 4 (1) sentence 3, section 15 (1) or (2), section 28 (1), or section 40 (1) and (2) shall have no suspensive effect.


Section 43
Notification and Service

(1) Orders which are issued against a person residing, or an enterprise whose registered office is, outside the area of applicability of this Act shall be notified by the Supervisory Authority to the person who has been appointed as an authorised representative. Where no authorised representative has been appointed, notification shall be effected by means of a public announcement in the Federal Gazette.

(2) If the order is to be served, service shall, in the case of persons residing, or an enterprise whose registered office is, outside of the area of applicability of this Act, be effected upon the person who has been appointed as an authorised representative. Where no authorised representative has been appointed, service shall be effected by means of a public announcement in the Federal Gazette.


Section 44
Right of Publication of the Supervisory Authority

The Supervisory Authority may publish its orders issued pursuant to section 4 (1) sentence 3, section 10 (2) sentence 3, section 15 (1) and (2), section 20 (1), section 28 (1), section 36 or section 37 (1), also in conjunction with a Regulation pursuant to subsection (2), in the Federal Gazette at the addressee's expense.


Section 45
Notifications to the Supervisory Authority

Applications and notifications to the Supervisory Authority must be in writing. The transmission of applications and notifications by electronic remote data transmission shall be permissible, provided that the sender's identity is unambiguous.


Section 46
Enforcement Measures

The Supervisory Authority may enforce orders issued under this Act with enforcement measures pursuant to the provisions of the Administrative Enforcement Act (Verwaltungsvollstreckungsgesetz). The Supervisory Authority may also apply enforcement measures to legal persons governed by public law. Objections and appeals against the threat and imposition of enforcement measures pursuant to sections 13 and 14 of the Administrative Enforcement Act shall have no suspensive effect. By way of derogation from section 11 of the Administrative Enforcement Act, the amount of the enforcement fine may amount to up to 500,000 euros.


Section 47
Costs

The Supervisory Authority shall charge costs (fees and expenses) in respect of official measures under section 10 (2) sentence 3, sections 14 and 15 (1) or (2), sections 20, 24, and 28 (1), sections 36 and 37 (1), also in conjunction with a Regulation pursuant to subsection (2), or section 41 in conjunction with section 6. The Federal Ministry of Finance shall, by means of a Regulation not requiring the consent of the Bundesrat, determine the individual grounds for charging costs and the amount of the costs. The Federal Ministry of Finance may, by means of a Regulation, transfer this power to the Supervisory Authority.



Part 7
Legal Remedies


Section 48
Admissibility; Jurisdiction

(1) Appeals against orders issued by the Supervisory Authority are admissible. Appeals may also be based on new facts and evidence.

(2) Appeals may be lodged by the parties involved in the proceedings before the Supervisory Authority.

(3) An appeal shall also be admissible against a failure by the Supervisory Authority to issue an order which has been applied for and which the applicant claims to be entitled to. A failure to issue is also deemed to exist if the Supervisory Authority, without sufficient reason, fails to render a decision on an application for the issue of an order within a reasonable period. Such failure shall then be regarded as equivalent to a refusal.

(4) The appeal shall be adjudged solely by the Higher Regional Court (Oberlandesgericht) which has jurisdiction for the registered office of the Supervisory Authority in Frankfurt am Main.


Section 49
Suspensive Effect

The appeal shall have suspensive effect if the order being challenged revokes an exemption pursuant to section 10 (1) sentence 3 or section 37 (1), also in conjunction with a Regulation pursuant to subsection (2), or a disregard of voting rights pursuant to section 36.


Section 50
Order for Immediate Enforcement

(1) The Supervisory Authority may decree the immediate enforcement of the order in the cases specified in section 49 if this is required to safeguard the interests of the public or the predominant interests of a party involved.

(2) The decree under subsection (1) may be issued prior to lodging the appeal.

(3) Upon application, the appellate court may order or restore the suspensive effect of an objection or appeal, in whole or in part, if

  1. the prerequisites of the decree pursuant to subsection (1) did not exist or have ceased to exist;
  2. serious doubts exist as to the legality of the order being challenged;
  3. enforcement would result in undue hardship for the person involved which is not justified by predominant public interests.

(4) An application pursuant to subsection (3) may be filed prior to lodging the appeal. The applicant shall provide credible evidence of the facts on which the application is based. Where the decree has already been enforced at the time of the decision, the court may also order cancellation of such enforcement. The decree on the suspensive effect may be made subject to the provision of security or other conditions. It may also be limited in time.

(5) Rulings on applications pursuant to subsection (3) may be amended or revoked at any time. To the extent that they confirm the applications, they shall be non-appealable.


Section 51
Time Limit and Form

(1) An appeal shall be lodged with the appellate court in writing within a statutory period of one month. The time limit shall commence upon notification or service of the Supervisory Authority's decision on the objection.

(2) Where an order applied for is not issued, the appeal shall not be subject to a time limit.

(3) The appeal must be substantiated. The time limit for substantiating the appeal shall be one month; it shall commence upon lodging of the appeal and may, upon application, be extended by the presiding judge of the appellate court.

(4) The document substantiating the appeal must contain

  1. a declaration stating to what extent the order is being challenged and its amendment or reversal is being applied for; and
  2. a statement of the facts and evidence upon which the appeal is based.


Section 52
Parties to the Appeal Proceedings

The appellant and the Supervisory Authority shall be the parties to the proceedings before the appellate court.


Section 53
Requirement to be Represented by a Lawyer

The parties must be represented before the appellate court by a lawyer (Rechtsanwalt) admitted at a German court or a lecturer in law at a German university, as defined in the Higher Education Framework Act (Hochschulrahmengesetz), qualified to hold judicial office. The Supervisory Authority may be represented by a permanent civil servant who is qualified to hold judicial office.


Section 54
Oral Hearing

(1) The appellate court shall rule on the appeal on the basis of an oral hearing; a decision may be passed without an oral hearing if this has been agreed to by the parties involved.

(2) If the parties fail to appear or are not duly represented at the hearing despite notice having been given in good time, the matter may nevertheless be heard and adjudged.


Section 55
Principle of Investigation

(1) The appellate court shall ascertain the facts ex officio.

(2) The court shall endeavour to ensure that errors of form are corrected, ambiguous applications are explained, relevant petitions are filed, insufficient factual details are supplemented, and, furthermore, that all declarations material for ascertaining and assessing the facts are made.

(3) The appellate court may order the parties involved to comment on issues requiring clarification within a period to be determined, to specify evidence, and to submit documents and other evidence in their possession. If the time limit is not observed, the matter may be decided as presented to the court without taking account of the evidence not submitted.


Section 56
Decision on an Appeal; Duty of Presentation

(1) The appellate court shall decide by means of a decree and in accordance with its free conviction based upon the overall result of the proceedings. The decree may only be based upon facts and evidence upon which the parties were in a position to comment. The appellate court may deviate from this principle to the extent that persons ordered to appear have, in order to protect the justified interests of the parties involved or of third parties, not been permitted to inspect the files, and the contents of the files have not been submitted for that reason. This shall not apply to those persons ordered to appear who are involved in the matter in dispute in such a way that the court decision can only be taken in a uniform manner in relation to them as well.

(2) If the appellate court considers the order issued by the Supervisory Authority to be inadmissible or unfounded, it shall reverse the order. Where the order was dispensed with prior to this by revocation or in another manner, the appellate court shall, upon application, declare that the order issued by the Supervisory Authority was inadmissible or unfounded if the appellant has a justified interest in such declaration.

(3) If the appellate court considers the refusal or non-issuance of the order to be inadmissible or unfounded, it shall declare that the Supervisory Authority be obliged to issue the order applied for.

(4) The order shall also be deemed inadmissible or unfounded if the Supervisory Authority has exercised its discretion erroneously, in particular if the Supervisory Authority has exceeded the statutory limits of discretion or has contravened the object and purpose of this Act when exercising such discretion.

(5) The decision shall be substantiated and shall be served upon the parties involved.

(6) If the appellate court wishes to deviate from a decision passed by a Higher Regional Court or the German Federal Court of Justice, it shall refer the matter to the German Federal Court of Justice. The German Federal Court of Justice shall pass a decision in lieu of the Higher Regional Court.


Section 57
Inspection of Files

(1) The parties referred to in Section 52 may inspect the files of the appellate court and may, at their own expense, have counterparts, extracts, and copies made by the court office. Section 299 (3) of the Code of Civil Procedure (Zivilprozessordnung) shall apply mutatis mutandis.

(2) Preliminary files, ancillary files, expert opinions, and documents on information provided shall only be inspected with the consent of the bodies to which the files belong or which have obtained the statement. The Supervisory Authority shall refuse to give its consent to inspection of records belonging to it if there is good cause to do so, in particular in order to safeguard legitimate interests of parties involved or third parties. If inspection is refused or inadmissible, the records concerned may only be used as a basis of the decision to the extent that their contents have been submitted. The appellate court may, by decree and after having heard the person affected by the disclosure, order the disclosure of facts or evidence the confidentiality of which is required on important grounds, in particular in order to safeguard legitimate interests of parties involved or third parties, to the extent that these facts or evidence are necessary for the decision, other possibilities of ascertaining the facts do not exist, and, when all the circumstances of the individual case have been taken into consideration, the significance of the matter for ensuring due procedure outweighs the confidentiality interest of the person affected. The decree shall be substantiated. The party affected shall not be required to be represented by a lawyer in the proceedings referred to in the fourth sentence.


Section 58
Applicability of Provisions of the Judiciary Act and the Code of Civil Procedure

Unless otherwise specified, the following provisions shall apply to proceedings before the appellate court:

  1. the provisions of Section 169 to Section 197 of the Judiciary Act (Gerichtsverfassungsgesetz) regarding admission of the public, the judge's power of maintaining order in the courtroom, official language in court, deliberation and voting; and
  2. the provisions of the Code of Civil Procedure (Zivilprozessordnung) on the exclusion and rejection of a judge, on authorised trial representatives and counsels, on service ex officio, on summons to appear, fixed dates and time limits, the order for personal appearance of the parties, the joinder of actions, the dealing with evidence submitted by witnesses and experts, as well as the other types of procedure for obtaining evidence, and on reinstatement of the status quo ante where a time limit has not be observed.

Part 8
Penalties

Section 59
Loss of Rights

Rights from shares held by the offeror, persons acting in concert with him, or subsidiaries of the latter or in respect of which voting rights are, pursuant to Section 30 (1) sentence 1 no. 2, attributed to the offeror, persons acting in concert with him, or subsidiaries of the latter shall not exist for as long as the duties pursuant to Section 35 (1) or Section 35 (2) are not complied with. This shall not apply to claims under Section 58 (4) and Section 271 of the Stock Corporation Act (Aktiengesetz) if the failure to effect a publication or make an offer pursuant to Section 35 (1) sentence 1 or Section 35 (2) sentence 1 was not wilful and was subsequently remedied


Section 60
Provisions on Administrative Fines

(1) An administrative offence shall be deemed to have been committed by any person who, in a intentional or reckless manner

  1. in contravention of

    1. section 10 (1) sentence 1, section 14 (2) sentence 1, section 35 (1) sentence 1 or section 35 (2) sentence 1; or
    2. section 21 (2) sentence 1, section 23 (1) sentence 1 or section 23 (2) sentence 1, or section 27 (3) sentence 1;
    3. section 1 (5) sentence 2 in conjunction with a Regulation pursuant to section 1 (5) sentence 3;
      fails to effect a publication, or fails to effect a publication correctly, completely or in the prescribed form and time,
  2. in contravention of

    1. section 10 (2) sentence 1, also in conjunction with section 35 (1) sentence 4, section 14 (1) sentence 1, section 35 (2) sentence 1; or
    2. section 10 (5), also in conjunction with section 35 (1) sentence 4 or section 14 (4), also in conjunction with section 21 (2) sentence 2 or section 35 (2) sentence 2; or
    3. section 27 (3) sentence 2;
      fails to deliver a notification or transmission or to submit information, or fails to deliver a notification or transmission or to submit information correctly, completely or in the prescribed form and time,
  3. in contravention of section 10 (3) sentence 3, also in conjunction with section 35 (1) sentence 4 or section 14 (2) sentence 2, also in conjunction with section 35 (2) sentence 2, effects a publication or publicises an offer document;
  4. in contravention of section 10 (4) sentence 1, also in conjunction with section 35 (1) sentence 4, fails to send, or send correctly, completely or in good time, a publication;
  5. in contravention of section 14 (3) sentence 2, in conjunction with section 21 (2) sentence 2, section 23 (1) sentence 2 or section 35 (2) sentence 2, or in contravention of section 27 (3) sentence 3, fails to deliver, or deliver correctly or in good time, written evidence;
  6. effects a publication in contravention of section 15 (3);
  7. makes an offer in contravention of section 26 (1) sentence 1 or 2; or
  8. in contravention of section 33 (1) sentence 1 or section 33a (2) sentence 1, carries out one of the actions referred to therein;
  9. in contravention of section 33a (3), section 33b (3) or section 33c (3) sentence 3, fails to submit, or submit correctly, completely or in good time, information; or
  10. in contravention of section 33c (3) sentence 4, fails to effect, or effect correctly, completely or in the prescribed form and time a publication.

(2) An administrative offence shall be deemed to have been committed by any person who, in a wilful or negligent manner,

1. acts contrary to an enforceable order pursuant to section 28 (1) or section 40 (1) sentence 1; or

2. in contravention of section 40 (2) sentence 1 or 2, does not permit or tolerate entry.

(3) In the cases referred to in subsection (1) no. 1 point (a), no. 3, 6 to 8, the administrative offence may be punished by a fine of up to one million euros; in the cases referred to in subsection (1) no. 1 point (b), no. 2 point (a) and no. 4, the administrative offence may be punished by a fine of up to five hundred thousand euros; in the remaining cases, the administrative offence may be punished by a fine of up to two hundred thousand euros.


Section 61
Competent Administrative Authority

The competent administrative authority within the meaning of section 36 (1) no. 1 of the Act on Breaches of Administrative Regulations (Gesetz über Ordnungswidrigkeiten) shall be the Supervisory Authority.


Section 62
Jurisdiction of the Higher Regional Court in Judicial Proceedings

(1) Judicial proceedings related to an administrative offence pursuant to section 60 shall be decided by the Higher Regional Court (Oberlandesgericht) which has jurisdiction for the registered office of the Supervisory Authority in Frankfurt am Main; such court shall also decide on applications for a judicial decision (section 62 of the Act on Breaches of Administrative Regulations) in the cases of section 52 (2) sentence 3 and section 69 (1) sentence 2 of the Act on Breaches of Administrative Regulations. Section 140 (1), no 1 of the Code of Criminal Procedure (Strafprozessordnung), in conjunction with section 46 (1) no. 1 of the Act on Breaches of Administrative Regulations (Gesetz über Ordnungswidrigkeiten), shall not apply.

(2) The Higher Regional Court shall, when making its decision, consist of three members, including the presiding member.


Section 63
Appeal on a Point of Law before the Federal Court of Justice

Appeals on a point of law (section 79 of the Act on Breaches of Administrative Regulations) shall be decided by the Federal Court of Justice. If the Federal Court of Justice reverses the decision which has prompted the appeal without itself passing a substantive decision, it shall refer the matter to the Higher Regional Court whose decision is being reversed.


Section 64
Resumption of Proceedings against a Decision Imposing an Administrative Fine

Resumption proceedings against a decision of the Supervisory Authority imposing an administrative fine (section 85 (4) of the Act on Breaches of Administrative Regulations) shall be decided by the court which has jurisdiction pursuant to section 62 (1).


Section 65
Judicial Decision in the Course of Enforcement

The judicial decisions which become necessary in the course of enforcement (section 104 of the Act on Breaches of Administrative Regulations) shall be issued by the court which has jurisdiction pursuant to section 62 (1).


Part 9
Jurisdiction of Courts; Transitional Arrangements


Section 66
Courts for Securities Acquisition and Takeover Matters

(1) The Regional Courts shall have exclusive jurisdiction in the case of civil law disputes which arise from this Act, regardless of the amount in dispute. The first sentence shall also apply to the claims referred to in section 12 (6) and in the event that the decision on a legal dispute depends, in whole or in part, on a decision to be passed pursuant to this Act. The Regional Court in whose district the target company has its registered office shall also have jurisdiction for actions brought as a result of this Act or in respect of the claims referred to in section 12 (6).

(2) Such disputes shall be classified as commercial matters as defined in sections 93 to 114 of the Judiciary Act.

(3) The governments of the Länder are empowered to assign, by means of a Regulation, civil law disputes in respect of which the Regional Courts have exclusive jurisdiction pursuant to subsection (1) to one Regional Court for the districts of several Regional Courts if such a conjunction serves the administration of justice in securities acquisition and takeover matters. They are further empowered to assign decisions on appeals against decisions of the Regional Courts who have jurisdiction pursuant to subsection (1) in civil law disputes to one or more Higher Regional Courts if more than one Higher Regional Court has been established in a Land. The governments of the Länder may transfer these powers to the justice authorities of the Länder. The jurisdiction of one Regional Court for individual districts or the whole territory of several Länder can be established by treaties between the Länder.

(4) (repealed)


Section 67
Division for Securities Acquisition and Takeover Matters at the Higher Regional Court

In the matters referred to it pursuant to section 48 (4), section 62 (1), section 64 and section 65 the Higher Regional Court shall pass its decision via a Division for Securities Acquisition and Takeover Matters.


Section 68
Transitional Arrangements

(1) This Act as amended prior to 14 July 2006 shall apply to offers which were published prior to 14 July 2006.

(2) To target companies within the meaning of section 2 (3) no. 2 whose securities carrying voting rights were admitted to trading on an organised market on 20 May 2006, section 1 (3) shall be applied subject to the proviso that, under no. 2 point (b) (bb), the decision is taken by the supervisory authorities concerned instead of the target company.

(3) The requirement under section 35 (1) sentence 1 and subsection (2) sentence 1 shall not apply if control of the target company is obtained by coordinated conduct prior to 19 August 2008 that as a result of the amendment to section 30 (2), leads to the attribution of voting rights as from 19 August 2008.

(4) This Act as amended prior to 19 August 2008 shall apply to offers which were published prior to 19 August 2008 pursuant to section 14 (2) sentence 1.

(5) Section 16 (4) as amended by the Act Implementing the Shareholder Rights Directive (Gesetz zur Umsetzung der Aktionärsrechterichtlinie) of 30 July 2009 (Federal Law Gazette I p. 2479) shall not apply to general meetings convened prior to 1 September 2009.

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Please note:Ger­man ver­sion is bind­ing

This translation is furnished for information purposes only and may refer to an older version of the text. The original German text is binding in all respects.