Der Ausschluß von Minderheitsaktionären : eine rechtsvergleichende Untersuchung nach US-amerikanischem und deutschem Recht

Abstract

On 01.01.2002 the Security Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz or WpÜG for short) which had been eagerly awaited on the German capital market came into force. This new regulation, which takes immense economic interests into considera-tion, is an attempt by the Federal government to take account of the dynamic market development in the field of mergers and acquisitions, and to create a binding regulatory framework for the (complete) takeover of public corporations, as has already been explicitly regulated in the USA and in many European countries for a long time. The most important regulation complexes in this act concern the introduction of a compulsory offer in the case of acquisition of control, the codification of the rules of conduct of the administrative body in the case of a tender offer, and last but not least the right of the principal shareholder to squeeze-out minority shareholders upon payment of an adequate cash settlement. In the present contribution the regulation complex concerning this right to squeeze-out minority shareholders will be contrasted with the possibilities that have existed to date de lege lata for realizing a complete takeover of joint stock corporations, and also compared with the techniques available on the principal market for corporate control, the USA. In this context attention will be focused above all on the deficiencies of the squeeze-out regulation that still exist, as well as on the inherent risks with regard to the possibility of unfair advantage being taken of the shareholders who are to be squeeze-out. At the same time the possible effects and consequences of the right to squeeze-out minority shareholders for the German capital market and the market for corporate control will have to be considered, as well as the implications for national economic efficiency, profitability, and the protection of sharehold-ers minorities in Germany and in the USA.