European non-frustration rule

(1) The articles of association of a target company may provide that section 33 does not apply. In that case the provisions of subsection (2) apply.
(2) After publication of the decision to make an offer, until publication of the result under section 23(1), first sentence, no. 2, the management board and the supervisory board of the target company may not undertake acts that could prevent the success of the offer. This does not apply to 1. acts for which the general meeting has authorised the management board or supervisory board after publication of the decision to make an offer, 2. acts within the ordinary course of business, 3. acts outside the ordinary course of business, insofar as they serve to implement decisions taken, and partially implemented, before publication of the decision to make an offer, and 4. the search for a competing offer.
(3) The management board of the target company must inform BaFin and the supervisory bodies of the states of the European Economic Area in which securities of the company are admitted to trading on an organised market, without delay, that the target company has resolved a provision of the articles of association under subsection (1), first sentence.