Consideration

(1) The offeror must offer the shareholders of the target company adequate consideration. In determining adequate consideration, the average stock-exchange price of the shares of the target company and acquisitions of shares of the target company by the offeror, by persons acting in concert with it, or by their subsidiaries must generally be taken into account.
(2) The consideration must consist of a monetary payment in euros or of liquid shares admitted to trading on an organised market. Where shares are offered as consideration to holders of voting shares, those shares must likewise carry a voting right.
(3) The offeror must offer the shareholders of the target company a monetary payment in euros where it, persons acting in concert with it, or their subsidiaries have, in the six months before the publication under section 10(3), first sentence up to expiry of the acceptance period, acquired in total at least 5 per cent of the shares or voting rights in the target company against payment of a monetary consideration.
(4) Where the offeror, persons acting in concert with it, or their subsidiaries acquire shares of the target company after publication of the offer document and before the publication under section 23(1), first sentence, no. 2, and a consideration of higher value than that named in the offer is thereby granted or agreed, the consideration owed to the recipients of the offer for the respective class of shares is increased, by value, by the difference.
(5) Where the offeror, persons acting in concert with it, or their subsidiaries acquire shares of the target company off-exchange within one year after the publication under section 23(1), first sentence, no. 2, and a consideration of higher value than that named in the offer is thereby granted or agreed, the offeror is obliged to pay to the holders of the shares who accepted the offer a monetary payment in euros in the amount of the difference. The first sentence does not apply to the acquisition of shares in connection with a statutory obligation to grant compensation to shareholders of the target company, or to the acquisition of the assets or parts of the assets of the target company through merger, division or transfer of assets.
(6) Equivalent to an acquisition within the meaning of subsections (3) to (5) are agreements under which the transfer of ownership of shares can be demanded. The exercise of a statutory subscription right on the basis of an increase in the target company's share capital is not deemed an acquisition.
(7) The Federal Ministry of Finance may, by statutory instrument not requiring the consent of the Bundesrat, issue detailed provisions on the adequacy of the consideration under subsection (1), in particular the taking into account of the average stock-exchange price of the shares of the target company and of acquisitions of shares of the target company by the offeror, persons acting in concert with it, or their subsidiaries, and the periods material in that regard, and on exceptions to the principle named in subsection (1), second sentence, and the determination of the difference under subsections (4) and (5). The Federal Ministry of Finance may transfer the authorisation, by statutory instrument, to BaFin.