(1) Anyone who intentionally compels, by exploiting their influence on the company, a member of the management board or of the supervisory board, an officer of the company vested with full commercial power of attorney (Prokurist) or an authorised agent to act to the detriment of the company or its stockholders will be under obligation to provide compensation to the company for the damage it has suffered as a result. Such party also will be under obligation to compensate the stockholders for the damage they have suffered as a result, insofar as they have suffered damage above and beyond the loss resulting for them by the damage caused to the company.
(2) In addition to that person, the members of the management board and of the supervisory board are liable as joint and several debtors if they have acted in dereliction of their duties. Where it is in dispute whether they have exercised the due care of a prudent manager faithfully complying with the relevant duties, the onus of proof is upon them. The duty of the members of the management board and of the supervisory board to provide compensation will not arise in relation to the company and also not in relation to the stockholders if the action taken is based on a lawful resolution adopted by the general meeting. The fact that the supervisory board has endorsed the action does not preclude the duty to provide compensation.
(3) In addition to that person, furthermore, those parties are liable as joint and several debtors who have obtained an advantage by the action causing damage, should such parties have intentionally instigated the influence being exerted.
(4) Section 93 (4) sentences 3 and 4 applies accordingly to the release from the duty in relation to the company to provide compensation.
(5) The company’s claim to compensation may also be asserted by its creditors inasmuch as they are unable to obtain satisfaction from the company. Any waiver by the company of its claims to compensation, or any conclusion by the company of a compromise regarding these claims, will not serve to release it from the duty to provide compensation to the creditors, nor will it be so released from this obligation by the fact that the action is based on a resolution adopted by the general meeting. Where insolvency proceedings have been opened for the company’s assets, the insolvency administrator or the insolvency monitor exercises the right of the company’s creditors for the duration of said proceedings.
(6) The claims governed by the present provisions will become statute-barred within five (5) years.
(7) The above provisions do not apply if the member of the management board or of the supervisory board, the officer of the company vested with full commercial power of attorney (Prokurist) or the authorised agent has been compelled to take the action causing damage by either of the following being exercised:
1. the power of direction based on a control agreement, or
2. the power of direction of a principal company (section 319) into which the company is integrated.