(1) In conducting the company’s affairs, the members of the management board are to exercise the due care of a prudent manager faithfully complying with the relevant duties. No dereliction of duties will be given in those instances in which the member of the management board, in taking an entrepreneurial decision, was within their rights to reasonably assume that they were acting on the basis of adequate information and in the best interests of the company. The members of the management board are to respect the secrecy of any confidential information and secrets of the company, particularly trade secrets or business secrets, of which they have become aware in the context of their activities in the management board.
(2) Members of the management board acting in dereliction of their duties are liable as joint and several debtors to compensate the company for any damage resulting from their actions. Where it is in dispute whether or not they exercised the due care of a prudent manager faithfully complying with the relevant duties, the onus of proof is upon them. Where the company has taken out insurance to protect a member of the management board against risks arising from their professional activities for the company, the insurance policy is to provide for a deductible of at least 10 per cent of the damage, up to a minimum of 150 per cent of the annual fixed remuneration of the member of the management board.
(3) The members of the management board are under obligation to provide compensation particularly in those instances in which, in contravention of the present Act,
1. contributions are restituted to the stockholders,
2. stockholders are paid interest or participate in the profits,
3. treasury shares of stock in the company or in some other company have been subscribed to, purchased, accepted in pledge or redeemed,
4. shares of stock are issued prior to their issue price having been fully paid in,
5. the company’s assets are distributed,
6. (repealed),
7. remuneration is granted to members of the supervisory board,
8. loans are granted,
9. shares of a new issue are issued in the context of the conditional capital increase and this is done outside of the purpose specified therefor or prior to the equivalent value having been fully paid.
(4) The duty to provide compensation does not arise in relation to the company where 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. 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 only in those cases in which the general meeting approves this being done and no minority, the aggregate of whose shares is at least equivalent to one tenth of the capital stock, 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 compensation duty is provided for in an insolvency plan.
(5) The company’s claim to compensation may also be asserted by its creditors insofar as they cannot obtain satisfaction from the company. However, this applies, in cases other than those governed by subsection (3), only in those instances in which members of the management board have grossly violated their duty to exercise the due care of a prudent manager faithfully complying with the relevant duties; subsection (2) sentence 2 applies accordingly. 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, nor will the fact that the action is based on a resolution adopted by the general meeting cancel this obligation. Where insolvency proceedings have been opened for the company’s assets, the insolvency administrator or the insolvency monitor is to exercise the right of the company’s creditors against the members of the management board for the duration of said proceedings.
(6) The claims governed by the present provisions will become statute-barred, in the case of companies that were listed on a stock exchange at the time at which the dereliction of duties occurred, after 10 years; in the case of other companies after 5 years.