Relevance of “majority consensus” in appraisal proceedings pursuant to § 11a SpruchG

Appraisal proceedings under the Appraisal Proceeding Act (SpruchG) regarding the compensation of minority shareholders in connection with domination and profit and loss transfer agreements, squeeze-outs and other structural measures can terminate by way of a settlement, which requires the consent of the defendant, the joint representative and all claimants (§ 11 (2) SpruchG). It is, therefore, not possible to efficiently terminate an appraisal proceeding by way of a settlement that is binding on all minority shareholders if the settlement proposal is rejected by a single claimant. Also, courts have so far mostly rejected the idea that a partial settlement that is supported by a majority of claimants can be used to determine the compensation for all minority shareholders (see, for example, OLG Düsseldorf ruling of 20 June 2022 – docket number I-26 W 3/20 AktE). § 11a SpruchG, which came into force on 1 March 2023 as part of the Act on the Implementation of the Cross-Border Conversion Directive (UmRUG), changes that position. Pursuant to § 11a SpruchG, a compensation amount that has been agreed between the defendant, the joint representative and a majority of claimants representing 90% of the share capital held by all claimants can be taken into account by the courts to determine the adequate compensation. It is important to note, however, that the new rule does not allow courts to disregard other relevant aspects, such as valuation and stock exchange prices in determining the compensation. In addition, the new rule also indicates that where a compensation amount is accepted by a majority of claimants representing less than 90% of the share capital held by all claimants, courts are prevented from taking into account such compensation amount in their estimate.

The introduction of § 11a SpruchG may also provide an additional argument for the assertion that purchase prices that were paid for shares in the company by a dominating shareholder in a close timely connection with the structural measure that triggers the compensation obligation can in certain circumstances be relevant for determining the compensation of minority shareholders. In a recent judgment, the Higher Regional Court of Frankfurt had acknowledged the relevance of such purchase prices (OLG Frankfurt ruling of 13 September 2021 – docket number 21 W 38/15).