Press Release No. 100/2022
The II. Zivilsenat (Civil Senate), which is responsible for corporate law, once again has to decide whether the consideration granted by Deutsche Bank AG to the shareholders of Deutsche Postbank AG for their shares was appropriate.
Facts:
The plaintiffs in the two proceedings held shares in Deutsche Postbank AG. On October 7, 2010, the defendant, Deutsche Bank AG, published a (voluntary) takeover offer pursuant to section 29 (1) of the Wertpapiererwerbs- und Übernahmegesetz (WpÜG - German Securities Acquisition and Takeover Act) at a price of €25 per share, which the plaintiffs accepted. The plaintiffs consider the takeover offer to be inadequate and are therefore demanding payment of a differential amount under section 31 WpÜG or damages for failure to make a mandatory offer under section 35 (2) WpÜG.
On September 12, 2008, Deutsche Bank AG entered into an agreement ("Original Agreement") with Deutsche Post AG on the acquisition of a 29.75% minority shareholding in Postbank at a price of EUR 57.25 per share. In addition, Deutsche Bank AG received an option to acquire a further 18 % block of shares in Postbank for €55 per share, and Deutsche Post AG received a put option to sell its remaining stake in Postbank of 20.25 % plus one share to Deutsche Bank AG at a price of €42.80 per share. After Deutsche Bank AG and Deutsche Post AG had initially agreed at the end of December 2008 to postpone the execution of the original acquisition agreement due to changed market conditions, they concluded a "supplemental agreement" on January 14, 2009, under which the acquisition of Postbank was to take place in three steps: First, Deutsche Bank AG was to acquire 50 million shares (= 22.9% of Postbank's share capital) at a price of €23.92 per share, then 60 million shares (= 27.4% of the share capital) via a mandatory exchangeable bond maturing on February 25, 2012 at a price of €45.45 per share. The Company was able to acquire a further 26,417,432 shares (= 12.1% of the capital stock) under call and put options at a price of €48.85 per share for the call option and €49.42 each for the put option. The options were to be exercisable between February 28, 2012 and February 25, 2013.
The plaintiffs are of the opinion that Deutsche Bank AG should already have published a mandatory offer pursuant to § 35 (2) WpÜG at a price of €57.25 per share on the basis of the original agreement because this agreement contained an in rem acquisition obligation on the part of the defendant in excess of a 29.75% shareholding and thus resulted in the defendant acquiring control pursuant to § 30 (1) no. 5 WpÜG. In part, they believe that the defendant should in any case have published a mandatory offer at a price of €49.42 (put option), €48.85 (call option) or €45.45 (mandatory exchangeable bond) on the basis of the supplementary agreement.
Course of proceedings to date:
In proceedings II ZR 9/21, the Regional Court dismissed the action. The Higher Regional Court dismissed the plaintiff's appeal. On appeal by the plaintiff, the Federal Court of Justice reversed the judgment of the Higher Regional Court and referred the case back to the Higher Regional Court for a new hearing and decision. The Higher Regional Court took evidence and again dismissed the plaintiff's appeal.
In the proceedings II ZR 14/21, the plaintiffs, who had accepted the defendant's offer, were overwhelmingly successful with their claims. On appeal by the defendant, the Higher Regional Court dismissed the actions.
In justification, it was stated in each case that the plaintiffs had not proven that Deutsche Bank AG had already acquired control of Postbank prior to the publication of the (voluntary) takeover offer on October 7, 2010, because voting rights from the shares held by Deutsche Post AG were attributable to it in accordance with section 30 of the Wertpapiererwerbs- und Übernahmegesetz (WpÜG - German Securities Acquisition and Takeover Act). In particular, there was no "acting in concert" within the meaning of section 30 (2) WpÜG. § In particular, there was no "acting in concert" within the meaning of section 30 (2) of the WpÜG between Deutsche Bank AG and Deutsche Post AG. Deutsche Bank AG was therefore not obliged to publish a mandatory offer in accordance with section 35 of the Wertpapiererwerbs- und Übernahmegesetz (WpÜG - German Securities Acquisition and Takeover Act), with the result that the plaintiffs are not entitled to payment of any difference to the consideration offered of EUR 25 per share.
With their appeals, which were allowed by the Court of Appeal with regard to the legal questions in connection with the interpretation of the attribution provisions of § 30 (2) WpÜG, the plaintiffs are continuing to pursue their claim.
Lower instances:
II ZR 9/21:
Cologne Regional Court - Judgment of July 29, 2011 - 82 O 28/11
Cologne Higher Regional Court - Judgment of October 31, 2012 - 13 U 166/11
BGH - Judgment of July 29, 2014 - II ZR 353/12
Cologne Higher Regional Court - Judgment of December 16, 2020 - 13 U 166/11 and
In the proceedings II ZR 14/21, the plaintiffs, who had accepted the defendant's offer, were overwhelmingly successful with their claims. On appeal by the defendant, the Higher Regional Court dismissed the actions.
In justification, it was stated in each case that the plaintiffs had not proven that Deutsche Bank AG had already acquired control of Postbank prior to the publication of the (voluntary) takeover offer on October 7, 2010, because voting rights from the shares held by Deutsche Post AG were attributable to it in accordance with section 30 of the Wertpapiererwerbs- und Übernahmegesetz (WpÜG - German Securities Acquisition and Takeover Act). In particular, there was no "acting in concert" within the meaning of section 30 (2) WpÜG. § In particular, there was no "acting in concert" within the meaning of section 30 (2) of the WpÜG between Deutsche Bank AG and Deutsche Post AG. Deutsche Bank AG was therefore not obliged to publish a mandatory offer in accordance with section 35 of the Wertpapiererwerbs- und Übernahmegesetz (WpÜG - German Securities Acquisition and Takeover Act), with the result that the plaintiffs are not entitled to payment of any difference to the consideration offered of EUR 25 per share.
With their appeals, which were allowed by the Court of Appeal with regard to the legal questions in connection with the interpretation of the attribution provisions of § 30 (2) WpÜG, the plaintiffs are continuing to pursue their claim.
Lower instances:
II ZR 9/21:
Cologne Regional Court - Judgment of July 29, 2011 - 82 O 28/11
Cologne Higher Regional Court - Judgment of October 31, 2012 - 13 U 166/11
BGH - Judgment of July 29, 2014 - II ZR 353/12
Cologne Higher Regional Court - Judgment of December 16, 2020 - 13 U 166/11 and
II ZR 14/21
Cologne Regional Court - Judgment of October 20, 2017 - 82 O 11/15
Cologne Higher Regional Court - Judgment of December 16, 2020 - 13 U 231/17
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