(1) Where a control agreement has been concluded, the legal representatives (in the case of a sole trader: the business owner) of the controlling enterprise are to exercise, in relation to the company, the due care of a prudent manager faithfully complying with the relevant duties in issuing directions to same.
(2) Where they violate their duties, they are liable as joint and several debtors to compensate the company for the damage resulting therefrom. Where it is in dispute whether or not they have exercised the due care of a prudent manager faithfully complying with the relevant duties, the onus of proof is upon them.
(3) The company may waive its claims to compensation, or conclude a compromise regarding these claims, only once three years have lapsed since the arisal of the claim, and may do so only in those cases in which the external stockholders consent thereto by a separate resolution and no minority, the aggregate of whose shares is at least equivalent to one tenth of the capital stock represented at the time such resolution is adopted, raises an objection and has it recorded in the minutes. The limitation in time does not apply where the party obligated to provide compensation is unable to pay their debts as they become due and concludes a compromise with their creditors in order to avert insolvency proceedings or if the duty to provide compensation is provided for in an insolvency plan.
(4) The company’s claim to compensation may also be asserted by any stockholder. However, the stockholder may only demand that performance be made to the company. Furthermore, the company’s claim to compensation may also be asserted by the creditors of the company insofar as they cannot obtain satisfaction from same. The duty to provide compensation will not be cancelled in relation to the creditors by a waiver by the company or by its concluding a compromise. Where insolvency proceedings have been opened for the company’s assets, the insolvency administrator or the insolvency monitor will exercise, for the duration of said proceedings, the right of the stockholders and creditors to assert the company’s claim to compensation.
(5) The claims governed by the present provisions will become statute-barred after five years.