(1) Where at least nine tenths of the nominal capital or of the capital stock of a share capital company being acquired are held by an acquiring stock corporation, no merger resolution need be adopted by the acquiring stock corporation where the absorption of this company being acquired is concerned. Treasury shares in the company being acquired and shares belonging to another party for the account of this company are to be set off from the nominal capital or the capital stock.
(2) Subsection (1) does not apply if stockholders of the acquiring company, the aggregate of whose shares makes up one twentieth of the capital stock of this company, demand that a general meeting be convened in which to adopt a resolution regarding the consent to the merger. The by-laws may tie the right to demand that a general meeting be convened to possession of a smaller portion of the capital stock of the acquiring company.
(3) One month prior to the day of the meeting of shareholders, or of the general meeting, of the company being acquired that is to adopt a resolution in accordance with section 13 (1) regarding the consent to the merger agreement, the documents designated in section 63 (1) are to be kept on display for inspection by the stockholders at the business premises of the acquiring company. Concurrently, the management board of the acquiring company is to give notice of the impending merger in the publications of record designated by the acquiring company and is to file the merger agreement, or its draft, with the acquiring company’s register; section 61 sentence 2 is to be applied accordingly. In the notice published in accordance with the first half-sentence of sentence 2, stockholders are to be notified of their right under subsection (2). Proof of the notice having been published is to be attached to the application for entry in the Commercial Register of the merger. In filing the application for entry in the register, the management board is to declare whether an application pursuant to subsection (2) has been filed. Upon a corresponding demand being made, each stockholder of the acquiring company is to be provided, without undue delay and at no charge, with a copy of the documents designated in sentence 1. Subject to the stockholder’s consent, the documents may be transmitted to the stockholder by means of electronic communication. The obligations pursuant to sentences 1 and 6 will lapse if the documents designated in sentence 1 are accessible, for the same period of time, on the company website.
(4) Where the entire nominal capital, or capital stock, of a share capital company being acquired is held by an acquiring stock corporation, no merger resolution is required to be adopted by the owner of the shares in the share capital company being acquired. Likewise, no such resolution is required in cases in which, as stipulated in subsection (5) sentence 1, a resolution as to a transfer has been adopted and entered in the Commercial Register with a note pursuant to subsection (5) sentence 7. Sections 47, 49, 61 and 63 (1) nos. 1 to 3 are not to be applied to the share capital company being acquired. Subsection (3) applies with the proviso that the obligations set out therein are to be fulfilled no later than one months prior to the day on which the merger is entered in the register of the acquiring legal entity. At the latest by this time, the obligation to forward documents set out in section 5 (3) likewise is to be fulfilled.
(5) In the cases governed by subsection (1), the general meeting of a stock corporation being acquired may adopt a resolution pursuant to section 327a (1) sentence 1 of the Stock Corporation Act within three months following the conclusion of the merger agreement if the acquiring company (principal stockholder) owns stock amounting to nine tenths of the capital stock. The merger agreement, or its draft, must include the information that it is intended to exclude the minority stockholders of the company being acquired in the context of the merger. Subsection (3) applies with the proviso that the obligations set out therein are to be fulfilled for the duration of one month following the conclusion of the merger agreement. At the latest when this time limit commences running, the obligation to forward documents set out in section 5 (3) is to be fulfilled. The merger agreement, or its draft, is to be kept on display for inspection by the stockholders as stipulated in section 327c (3) of the Stock Corporation Act. The merger agreement, or its draft, is to be included as an executed copy or as a publicly certified copy with the application for entry in the register of the resolution as to the transfer (section 327e (1) of the Stock Corporation Act). The entry in the register of the resolution as to the transfer is to include the note that it will take effect only concurrently with the entry of the merger in the register maintained at the seat of the acquiring stock corporation. In all other cases, sections 327a to 327f of the Stock Corporation Act remain unaffected.