(1) The acquiring company may not increase its nominal capital in order to implement the merger in any of the following cases:
1. it holds shares in a legal entity being acquired;
2. a legal entity being acquired holds treasury shares; or
3. a legal entity being acquired holds business shares in this company, regarding which not all capital contributions to be paid in have been so paid in in the full amount.
The acquiring company need not increase its nominal capital in either of the following cases:
1. it holds business shares of its own as treasury shares; or
2. a legal entity being acquired holds business shares in this company, regarding which the capital contributions have already been paid in in the full amount.
The acquiring company may refrain from allotting business shares if all holders of shares in a legal entity being acquired waive this being done; the declarations of waiver are to be recorded by a notary.
(2) Subsection (1) applies accordingly if the owner of the shares designated therein is a third party acting on their own behalf, but who is acting, in a case governed by subsection (1) sentence 1 no. 1 or by subsection (1) sentence 2 no. 1, for the account of the acquiring company, or who is acting, in any one of the other cases governed by subsection (1), for the account of the legal entity being acquired.
(3) Insofar as, in order to implement the merger, business shares in the acquiring company must be partitioned, which shares are held by the acquiring company itself or by a legal entity being acquired, so as to allow them to be allotted to the holders of shares in a legal entity being acquired, the stipulations of the articles of association ruling out or impeding the partitioning of the acquiring company’s business shares are not to be applied; however, the nominal amount of each fraction of the business shares must be denominated in full euros. Sentence 1 applies accordingly if a third party holds the business shares who is acting in their own name, but for the account of the acquiring company or of a legal entity being acquired.
(4) Additional cash payments specified in the merger agreement may not exceed one tenth of the aggregate nominal amount of the business shares in the acquiring company that have been allotted.