Squeeze-out

Under a squeeze-out (English squeezing ) or exclusion of minority shareholders means the forcible exclusion of minority shareholders of a joint stock company by the majority shareholder. Depending on the legal system there are different forms of the squeeze -out, which can be performed under different conditions and in different situations.

Squeeze-out in Germany

The German company law recognizes three forms of the squeeze -out. The company law squeeze-out in Germany by § § 327a - 327f German Stock Corporation Act was introduced on 1 January 2002 for the first time. Since 14 July 2006, also the Takeover Directive Implementation Act into force. By this law, the takeover law squeeze- out has been implemented, among others, to § § 39a- c Takeover Act. Since July 15, 2011 There are another form, namely the so-called squeeze- out merger. Finally, the Financial Market Stabilisation Acceleration Act provides a special form of the squeeze -out, which can perform only the financial market stabilization fund, which has so far only happened once.

The company law squeeze-out

Rights of the principal shareholder

If a shareholder holds at least 95 % of the capital stock of a corporation directly or through related companies that he (or a partnership limited by shares), he has basically anytime, especially in the liquidation of the AG, the right to the remaining shareholders (also free or minority shareholders called ) to push against payment of a reasonable compensation from the company (but not to carry out private during the takeover law squeeze-out ), and thus a going. A specific reason, the main shareholder does not need it, the possible reasons are rather been the occasion for the legislation. Mention is mainly the reduction of administrative burdens and friction losses through legal challenges of minority shareholders. Note, however, that a squeeze-out is not always protect against legal challenges already collected. This has made it clear in its judgment of 22 December 2006 is now under annulment of a judgment of the Oberlandesgericht Koblenz, the Bundesgerichtshof.

The advantage over the majority of AG also possible inclusion is that the minority shareholders will receive any shares of the majority shareholder, but a cash settlement. The other alternative of transmitting resolution is because of the unrestricted risk avoidance possibly very lengthy.

Main shareholder may be any German or foreign natural or legal person. Also a BGB- outer society is concerned. However, this must be the holder of a majority itself. A mere will of society is not an option, since it can not be for lack of major shareholder shares. Worth considering the creation of a oHG is 2 HGB § 105 para. For the registered and thus register judicially tested oHG has the appearance of permanency for themselves, which - as will be demonstrated below - is of considerable importance.

To calculate the majority of 95 % can according to imputation. § 16 paragraph 2 and 4 of the AktG be used. The problem is the case when the main shareholder holds this position solely by attribution, that does not hold shares. In a majority of votes there is - unlike the takeover law squeeze-out - not to the mere participation in the share capital is sufficient. The necessary majority can be necessary, brought about by capital with subscription rights. Treasury shares of the Company are deducted. Likewise remain mere options or convertible bonds not considered. Authorized capital or conditional capital increases come only after effective increase and entry to the course. The problem may be the case, constellation, subscription rights are exercised in between the convening of the General Meeting and the resolution, with the result that the 95 % majority on the relevant date of the general meeting no longer exists.

The Federal Court held in its judgment of 16 March 2009 that the procurement of the necessary for a squeeze-out capital interest of 95 % as defined by a securities lending § 607 BGB does not constitute an abuse of rights and therefore does not result in the invalidity or unsoundness of the transfer resolution. It is not even a void or contestable decision, if the borrower does not intend to sell the shares in his possession or to the lender from the " lent " shares rights ( dividend, rights) entitled to the law of obligations.

Compensation

The law provides only for cash compensation. The granting of shares of the majority shareholder can therefore not be required. The amount of cash compensation is to be based on the economic situation of the company at the time of the resolution by the Annual General Meeting. For constitutional reasons ( to property, Article 14 paragraph 1 GG ) the loss of the minority shareholders must be fully compensated. Only in this way have the provisions of § § 327a et seq constitutionality. A tax levied against the squeeze-out provisions constitutional complaint before the Federal Constitutional Court had no success. The settlement is subject to full judicial review pursuant to § 327f AktG in conjunction with § 2 SpruchG.

The most important valuation method is the so-called income approach, as it is used as well in the majority inclusion ( § 320b para 1 sentence 3 AktG). The main factor is the forecast of future ( abzuzinsende ) corporate earnings. Increasingly obtain the method of discounted cash flow importance. Other methods are only in individual cases into consideration. For listed companies, the market price plays a big role. The underflow of the course is only in exceptional cases into consideration. To avoid unfair price manipulation must be based on the average price over the last three months ( reference period corresponds to that of § 5 of the Takeover Act -AV). The influence of the social value can be displayed in a permissible way through the main shareholder. So may be terminated any existing affiliation agreements if necessary.

The claim for compensation is established by law with the registration of the transfer resolution. The due date but occurs only after delivery of the shares at the main shareholder or the clearing house - usually the bank, which also secures the compensation claim - a. In the meantime, the claim is subject to interest at 5% above the respective base interest rate ( according to § 247 German Civil Code ) (§ 327b para 2 AktG), the assertion of further damage is possible.

According to § 327b para 3 AktG, the main shareholder must obtain a declaration of a credit institution to hedge the redemption amount even before the invitation to the Annual General Meeting.

Method

The application of § § 327a et seq can not be excluded. An exclusion found in § 39a para 6 the Takeover Act. Thereafter, the § § 327a et seq during the takeover law squeeze -out procedure (see below, II ) shall not apply. Otherwise, they remain unaffected.

The main shareholder may freely chosen in the form of the company's board to initiate the process of elimination ask. Even before the notice of the relevant general meeting of the compensation claim must be secured ("Statement" of a credit institution, § 327b para 3 AktG).

The Board then shall convene a general meeting. Note the information obligations, such as obligations according to § 15 WpHG for ad hoc reporting by the Executive Board (prevention of insider trading ). The convening of the general meeting is pursuant to § § 121 et seq with the additional proviso of § 327c German Stock Corporation Act ( information on the major shareholder and the amount of the settlement ).

The main shareholder applies to the court responsible for the Company ( District Court, Commercial Court ) the appointment of an external auditor ( auditor or auditing firm ). This is responsible for auditing the adequacy of the settlement. The auditor towards society in § 293d paragraph 1, sentence 1, § 320 AktG provided information law. The Company must disclose everything that is responsible for determining the compensation of importance. These mainly include documents for corporate planning, to the components of assets and the assessment of corporate risks. The audit will be paid by the main shareholder. The declared by all minority shareholders in the form of § 129 BGB waiver of the external audit is possible.

The main shareholder may propose to the court an examiner and this will usually do well. The court is not bound by the recommendation. Adheres to the court 's proposal, the mere fact no ground for rescission. It should be noted, however, that in any case a " suspicion " is added by such an approach. In individual cases it may therefore be necessary to abandon a proposal or merely to call the court about the auditor been appointed.

The main shareholder shall submit a written report, if not all minority shareholders agree in the form of § 129 BGB it. In the report the conditions of the transfer and the adequacy of the compensation should be explained and justified. § 327c paragraph 2, sentence 4 provide in connection with § 293a para 2 AktG that certain facts need not be disclosed if disadvantages threatening (so-called safeguard clause ). In that regard, a judicial review and consideration to make. The reporting gap and the reasons for this is again noted in the report.

From the convocation of the General Meeting shall be construed following documents in the business area of the company: design of the transfer resolution, financial statements, management reports (if they are to create ), Report of the majority shareholder, the audit report for settlement. Copies of the documents referred to are free of charge, upon request of a minority shareholder this zuzuschicken. The information shall be enforceable, if necessary, is the claim in the interim relief " enforceable ". The documents are to be interpreted in the general meeting.

The transfer is decided at the Annual General Meeting. The decision is to establish the transfer of the shares of all minority shareholders to the majority shareholder to contain a fair price. The main shareholder and the amount of the settlement are sufficient to designate § 327c para 1 AktG. Legitimating reasons for the squeeze-out must not be specified.

The main shareholder may use the Annual General Meeting to explain the exclusion of the project, a corresponding duty, however, is in the negative. The Board shall report the decision in the commercial register. Respect, there are no special features. To challenge the method and safety decision immediately under " legal ".

Legal protection of minority shareholders in the squeeze-out

A legal challenge may not be based on the inadequacy of the compensation or to § 243 para 2 AktG. As far as the minority shareholders are referred to the court proceedings.

A challenge to the shareholders' resolution is possible under this restriction, moreover, according to the general rules. Thus, shareholders may support the challenge of inadequate information provision. In particular, a challenge comes into consideration if no or an incorrect (such as a not exactly beziffertes, not: inadequate ) settlement offer is present. A challenge also comes into consideration if the exclusion is improper. The development of suitable groups of cases is so far, however, only the beginning.

A fairly independent legal challenge does not prevent not necessarily the entry, especially when a so-called safety declared. This is obtainable through injunctive relief after a balancing of interests and serves to prevent the disadvantages resulting from wrongful rescission. If the squeeze -out resolution explained later in the challenge process null and void, so the addition Crowded remains only a claim for damages against the corporation.

The adequacy of the cash may - following have performed the squeeze-out ( registration of the transfer resolution in the commercial register) - gem under a to be requested by a former shareholder appraisal proceedings. § 1 to § 17 SpruchG be subject to judicial review. The award procedure causes no register lock, a safety decision is, therefore, to the extent not required.

The takeover law squeeze-out

The takeover law squeeze-out has been introduced in the course of implementing the so-called takeover bid directive from the year 2004 to 14 July 2006. It is in § § 39a to 39c Takeover Act ( the German Securities Acquisition and Takeover Act). The § § 39a et seq Takeover Act to open the bidding of a previous public takeover process (also the 95% threshold applies with the proviso that it must be either voting capital ) the possibility in close temporal association with the takeover (§ § 29 et seq ) or mandatory offer (§ § 35 ff Takeover Act ) to request the transfer of the remaining voting shares. Does the bidder also 95 % of the share capital, it can also apply to the transfer of the remaining shares. The takeover law squeeze-out is cheaper, faster and easier than its company law counterpart. In particular, it does not require the implementation of a general meeting, but the transfer is effected by a court order ( first instance exclusive jurisdiction is the District Court Frankfurt am Main). Corresponding shareholder rights (suspect ) are excluded. Furthermore, no (additional) business valuation takes place, if the takeover bid or mandatory offer of 90 % of the shareholders was adopted: in this case attacks the presumption that the compensation due to the market acceptance of appropriate and further evaluation is unnecessary; the acceptance rate should be below 90 %, as a rule, the amount of the settlement is to be done by a company valuation.

With regard to the settlement there are the following special feature: It is the same type of consideration as in the previous offer according to § § 29 et seq or § § 35 et seq Takeover Act, optionally offer cash compensation. The adequacy of the compensation is indisputably assumed since it was already tested in the takeover bid or mandatory offer, if the majority shareholders were offered 90 % of the shares to the offer under the takeover bid or mandatory offer ( on the other hand be raised constitutional concerns. ) The amount of optional cash compensation is to be granted in accordance with § 31 Section 2 Sentence 1 of the Takeover Act in conjunction with § 5 of the Takeover Act AngVO to determine. It plays in listed companies, the weighted average share price ( the last three months ) a paramount role.

The first carried out a process of elimination in accordance with § 39a, § 39b Takeover Act have not yet led to sufficient clarification of the still many open questions about the takeover law squeeze-out. In particular, the Landgericht Frankfurt am Main in his second decision in accordance with § 39a, § 39b Takeover Act has assessed the adequacy presumption as rebuttable. Also, the Higher Regional Court of Frankfurt am Main as the Appeals Board has ruled in its first decision on this issue are not limited to the legal nature of the presumption rules of § 39a para 3 sentence 3 of the Takeover. It has left open the question of Widerleglichkeit suspect deliberately left open because the objections raised by the complainants were in any case not have been sufficiently substantiated. However, the court, contrary to commonly demand of the opinion of representatives of an irrebuttable presumption refused to have the question by the Court, because this is not a question to a question of German law. Meanwhile, there is another high court case law, for the Stuttgart Higher Regional Court has expressed in its decision of 5 May 2009, that the reasonableness presumption should be understood as irrefutable. Moreover, this issue is currently pending before the Federal Constitutional Court, so that can be expected in the future with a final resolution.

The financial market stabilization law squeeze-out

In the wake of the global financial crisis of 2008 - 2009 the Financial Market Stabilization laws were enacted to stabilize the German financial market following the Lehman collapse in the United States by the German Bundestag. These served primarily to prevent the insolvency of the ailing real estate financing bank Hypo Real Estate (HRE ) because they wanted to avoid distortions of the international financial economy, as they had been caused by the collapse of the U.S. bank Lehman Brothers Inc.. This contributed to the legislator alleged to have created a non- constitutional case by case law, which is prohibited by the Basic Law. This allegation has not been confirmed.

The financial market stabilization law squeeze-out contains in § 12 para 4 Financial Market Stabilisation Acceleration Act ( FMStBG ) modifications of the stock corporation law and takeover law squeeze-out. Since the squeeze-out by the Special Fund for Financial Market Stabilization ( SoFFin), behind the 100% the Federal Republic of Germany is, however, a particularly fast implementation in a crisis situation required, it differs fundamentally from the well-known Squeeze -out forms, since he an upstream capital allows exclusion of subscription rights of existing shareholders to a level at which the voting rights of all other shareholders are diluted so far that the federal government with its own majority may decide this squeeze-out. Significant protections of minority shareholders in the squeeze-out case be undermined. Through these radical measures of financial market stabilization law squeeze-out is strong in the near U.S. squeeze-out forms that would under normal circumstances not possible in Germany and are used only for the case of a crisis.

For more details on the financial market stabilization law squeeze -out, and issues an eventual expropriation see Königshausen - squeeze-out in the U.S. and Germany, ISBN 978-3-8300-6636-1.

The merger law squeeze-out

Since July 15th, 2011 There is a fourth form, namely the so-called squeeze- out merger. This European legal requirements were implemented in the Conversion Act. With the merger law squeeze -out the possibilities of a controlling shareholder have been extended to exclude the minority shareholders for a cash payment from a company. The scope of the merger law squeeze -out is, however, limited in comparison to the company law squeeze-out. Via the newly added § 62 para 5 Transformation Act, such a squeeze-out already then take place when the parent company as the main shareholder holds 90% of shares in the subsidiary and the subsidiary is merged in connection with the parent company. The previous share or takeover provisions majority requirements remain unaffected. In addition to the main shareholders include even for a merger law squeeze -out 90 % of the shares. An attribution of shares held by dependent enterprises or trustees, is not possible in contrast to shares or takeover law squeeze-out. Does the principal shareholder is not required to squeeze out a majority stake, needs to be a transfer of shares to the majority shareholder before. The majority shareholder has the necessary shares, which give a stake of 90 % in the company, full ownership. The merging companies and to the majority shareholder must have the legal form of an AG, KGaA or German SE. The merger of the Company to the controlling shareholder must actually take place.

Benefit

The merger law squeeze-out is particularly useful if the majority shareholder between 90 and 95 % of the shares in a company are. Then he allows the exclusion of minority shareholders who had deliberately built up a shareholding to prevent a squeeze-out under the previous rules. This occurs mainly in takeover situations. So far, the minority shareholders have let buy their blockade position only to a return well above the market value price. Thus, the majority shareholder had to buy his squeeze-out intentions at a higher than market price. There is no allocation of shares held by a subsidiary of its majority shareholder, instead. Therefore, certain measures before carrying out a merger law squeeze -out may be required, such as a change of legal form into a corporation or a transfer of shares of other Group companies to the majority shareholder, so that it will benefit the required capital ratio.

Squeeze-out at other legal forms

The squeeze-out provisions are, as they are in the German Stock Corporation Act, applicable only to the AG and KGaA. Therefore arises with companies of other legal form the question of whether - as far as legally possible - the transformation of legal form is to be operated in order to create the conditions for the exclusion of a minority. The expense for quite a change in legal form of a company, in the dissenting minorities are present is considerable. For partnerships, a unanimous decision is required unless the partnership agreement permits a majority decision. Furthermore, in this context is the necessity of a cash settlement offer pursuant to § 207 of the Transformation Act to the shareholders who have declared oppose the order for transcript to mention. The necessary business valuation, however, can be utilized for the determination of the cash settlement offer pursuant to § 327b German Stock Corporation Act in certain circumstances. In general, however, a number of other factors will play an important role in deciding on a transformation into an AG or KGaA, such as tax and legal issues of co-determination and the particular governing structures of the corporation. A conversion only for the reason of the preparation of the exclusion of minority shareholders is therefore probably the exception.

Examples of squeeze- outs

• Allianz Life Insurance Company ( WKN 840 300 ) on 7 May 2008 to € 777.96 at Allianz Germany AG
• Altana (WKN 760080 ) on 27 August 2010 € 15.01 plus € 1.05 to SKion GmbH
• Avaya (WKN 564722 ) on 26 October 2007 to $ 17.50 at Silver Lake Partners
• BHW (WKN 522390 ) on 12 February 2008 for € 15.11 at Postbank AG
• Brain Pool ( WKN 518 890 ) on 3 July 2002 to 3.70 € to VIVA Media
• Buderus (WKN 527 800 ) on 2 August 2004 for € 34.00 plus € 13.00 plus interest at Robert Bosch GmbH
• Consors (WKN 542700 ) on 27 December 2002 to € 11.75 € 1.09 to BNP Paribas
• Debitel (WKN 540800 ) on 13 May 2005 to € 11.79 in Swisscom
• Degussa (WKN 542190 ) on 21 September 2006 to € 45.11 in RAG Aktiengesellschaft
• German Pfandbrief Bank ( WKN 804 700 ) on 7 February 2005 to € 81.00 in Depfa Bank
• Derby Cycle Werke (WKN A1H6HN ) on 28 December 2012 € 31.56 at Pon Holding Germany GmbH
• Dresdner Bank ( WKN 535000 ) on 11 July 2002 to € 51.50 in Allianz AG
• Dyckerhoff (ISIN DE0005591002 ) on 29 August 2013 at € 47.16 at Buzzi Unicem
• Hoechst ( WKN 575800 ) on 15 July 2005 at € 63.80 plus € 1.20 at sanofi -aventis
• HypoVereinsbank ( ISIN DE0008022005 ) on 27 June 2007 to € 38.26 at UniCredit Group
• Kamps (WKN 628 060 ) on 8 April 2004 to € 12.14 in Finba Bakery ( Barilla )
• Mannesmann (WKN 656 030 ) on 22 February 2002 to € 217.91 on Vodafone
• Nova Soft ( WKN 677 890 ) on 4 August 2006 to € 3.89 at Ciber Holding
• SAP Systems Integration AG ( WKN 501111 ) on 20 June 2007 to € 38.83 at SAP Germany AG & Co. KG
• Schering AG ( WKN 717200 ) on 17 January 2007 to € 98.98 in Bayer AG
• Tecis (WKN 621 160 ) on 3 February 2003 to € 31.50 plus € 1.00 in AWD Holding
• Triumph Adler (WKN 749500 ) on 20 April 2010 to € 1.9 in Kyocera Mita (now Kyocera Document Solutions)
• VIVA Media (WKN 617 106 ) on 28 June 2005 to € 12.65 plus € 1.00 to Viacom
• Walter AG ( WKN 775 290 ) on 22 December 2005 to € 75.50 at Sandvik Holding
• Hypo Real Estate ( WKN 802770 ) October 5, 2009 to € 1.39 in Federal Agency for Financial Market Stabilization (SoFFin )

Squeeze-out in Switzerland

The Swiss company law recognizes only two forms of the squeeze- outs. On the one hand, these are to the squeeze-out under a public offer within the meaning of the Exchange Act, which entered into force on 1 February 1997. On the other hand, there is the squeeze-out in a merger of two or more companies within the meaning of which came into force on 1 July 2004 Merger Act.

Under Article 8, paragraph 2 of the Merger Act in conjunction with Article 18, paragraph 5 FusG may decide 90 % of the shareholders of the Company that they will receive in the merger of the company instead of equity securities, a severance payment.

According to Art 33 Stock Exchange Act, a shareholder who has after a public tender offer pursuant to Article 32 BEHG at least about 98% of the voting rights of a company, bring before the judge within three months an action for cancellation of the remaining shares. The shares will be canceled and reissued to the majority shareholder. This has to compensate the " dispossessed " shareholders.

Squeeze-out in the U.S.

The Company Law of the United States is very heterogeneous, as the freedom of each state to develop its own corporate law. Reflected in the heterogeneity and the squeeze-out is controlled.

These are better known as Freeze - outs and are governed by the laws of each state in which the corporation has its registered office, its minority shareholders to be forced out. In Delaware, for example, allow the laws of the parent company under certain conditions if it has at least 90 % of the shares in a subsidiary to merge their shares of the subsidiary, this is a specialized form of the Parent - Subsidiary Merger (known as the Short Form merger ). The approval of the minority shareholders is not required. You are only entitled to receive a reasonable compensation in cash for their shares. Incidentally, the biggest difference with the German law that a squeeze-out in the USA from 50 % 1 share is possible and always a transaction is required to conduct a squeeze-out, while it is taking place in Germany already due to law. For further details to the U.S. squeeze-out right cf. Königshausen - squeeze-out in the U.S. and Germany, ISBN 978-3-8300-6636-1.

Squeeze-out in the UK

In the UK takeover law squeeze-out is governed by Section 979-982 of the Companies Act 2006. Limit for starting a squeeze-out by the majority shareholder is 90% of the shares. As a special Section 983 of the Companies Act 2006 is to mention the reversed the minority shareholders are entitled to require the purchase of your shares ( sell-out ).

Literature on the subject

Concerning the abbreviations used below to legal literature see: Kirchner, Hildebert: Abbreviations of legal language. Berlin / New York 2002, ISBN 3-89949-026-6

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