(1) An action for avoidance may be brought pursuant to section 243 against the resolution as to a capital increase in return for contributions unless subsections (4) to (7) lead to a different conclusion.
(2) The action for avoidance may not be based on section 243 (2) or on the fact that the value of the contribution allocated to the share of stock is unreasonably low.
(3) Sections 244 to 248a apply to the action for avoidance.
(4) If the pre-emptive right to newly issued shares of stock is precluded in its entirety or in part in some other manner than that set out in section 186 (3) sentence 4, and if the value of the contribution allocated to the share of stock is unreasonably low, then any stockholder whose right to bring an action for avoidance regarding the effectiveness of the resolution as to a capital increase is precluded in accordance with subsection (2) may demand, the provisions of sections 255a and 255b notwithstanding, that the company provide compensation by way of a payment of compensation in cash insofar as their pre-emptive right to newly issued shares of stock is precluded.
(5) In the case of listed companies, the value of the shares of stock allotted corresponds to their trading price. Where the issue price is insignificantly lower than the trading price, the claim to payment of compensation in accordance with subsection (4) sentence 2 lapses. The trading price is not the sole governing factor if
1. the stock corporation, contrary to Article 17 (1) of Regulation (EU) No 596/2014 or a corresponding provision of applicable foreign law, fails to disclose as soon as possible any inside information that directly concerns that stock corporation, or if it publishes, in a disclosure in accordance with Article 17 (1) of Regulation (EU) No 596/2014 or with a corresponding provision of applicable foreign law, untrue inside information that directly concerns that stock corporation, or if
2. a violation of the prohibition of market manipulation stipulated in Article 15 of Regulation (EU) No 596/2014 has been committed that influenced the trading price or was likely to so influence it, or if
3. trading prices for the stock corporation’s shares of stock were quoted, in the course of the last three months prior to expiry of the day preceding the day on which the decision to issue new shares was taken, on fewer than a third of the trading days and several trading prices quoted consecutively deviated from each other by more than five per cent.
For the calculation of the trading price, section 5 (1) to (3) of the Regulation on Offers under the Securities Acquisition and Takeover Act (WpÜG-Angebotsverordnung) is to be applied accordingly, subject to the proviso that the expiry of the day preceding the day on which the decision was taken to issue new shares takes the stead of the disclosure stipulated in section 10 (1) sentence 1 or section 35 (1) sentence 1 of the Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz – WpÜG). If the trading price is lower on that day, then that trading price will govern. Sentence 3 nos. 1 and 2 is not to be applied if the violation or manipulation had no effects, or merely insignificant effects, on the price calculated in accordance with sentence 4.
(6) The compensation payment is to accrue interest, from the expiry of that day onwards on which the implementation of the capital increase was entered in the register, at five percentage points per annum above the respectively applicable basic rate of interest pursuant to section 247 of the Civil Code. The assertion of further-reaching damages is not precluded.
(7) Upon a corresponding petition having been filed, the compensation payment is determined by the court in accordance with the stipulations of the Act on Valuation Proceedings under Corporate Law (Spruchverfahrensgesetz – SpruchG).