After acceptance of the Deutsche Bank takeover offer for Postbank shares, a former Postbank shareholder sued Deutsche Bank for an additional payment based on the argument that the consideration under the takeover offer was inadequate. In its judgment dated 29 July 2014, the German Federal Court of Justice confirmed that shareholders can claim additional payment if the offered consideration was inadequate within the meaning of Section 31 para. 1 sentence 1 German Takeover Act (WpÜG).
The court further ruled that if the bidder acquires 30 percent or more of the voting rights and thus the control of the target within the meaning of Section 29 para. 2 German Takeover Act prior to the publication of a takeover offer without making a mandatory or a voluntary takeover offer within the time periods set out in Section 35 para. 2 sentence 1 German Takeover Act, the relevant time periods specified in Sections 4 and 5 of the Offer Ordinance (WpÜGAngVO) are to be extended accordingly.
An attribution of voting rights pursuant to Section 30 para. 1 sentence 1 no. 2 German Takeover Act requires that the bidder bears the material risks and rewards of the relevant shares. Furthermore, the bidder must have the opportunity to influence the exercise of voting rights of the respective share owners. An attribution of voting rights pursuant to Section 30 para. 1 sentence 1 no. 5 German Takeover Act requires that the bidder can acquire ownership of the relevant shares by unilateral declaration without involvement of the contractor or a third party; a contractual claim on transfer of shares is not sufficient.
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