Renzenbrink & Partner achieves important success for client SPARTA AG
18. February 2021SPARTA AG (“SPARTA”) has achieved an important success with Renzenbrink & Partner before the Hanseatic Higher Regional Court of Hamburg in a clearance procedure under stock corporation law (Section 246a AktG). In a decision dated February 12, 2021, the Higher Regional Court ruled that the ordinary capital increase resolved on October 1, 2020 can be entered in the commercial register, even though a shareholder of SPARTA filed an action for rescission against the underlying resolution of the Annual General Meeting.
SPARTA is an investment company based in Hamburg with an investment portfolio of over EUR 150 million. The background to the release proceedings is an action for rescission brought by a shareholder before the Hamburg Regional Court. With his action for rescission, the shareholder is challenging a capital increase resolution of SPARTA with a total volume of up to around EUR 28 million.
The allegation made in the action for rescission is that the issue price set for the new shares is unreasonably low and creates a de facto subscription obligation for the plaintiff. It was forced to participate in the capital measure in order to prevent its shareholding in SPARTA from being unduly diluted.
In order to ensure the entry of the resolution of the Annual General Meeting in the commercial register despite the action for avoidance, SPARTA initiated a release procedure in accordance with Section 246a AktG. The Higher Regional Court granted SPARTA’s application for release by resolution dated February 12, 2021, meaning that the capital measure can be entered in the commercial register and implemented despite the action for avoidance. The Higher Regional Court found that the action for avoidance was clearly unfounded. The legal concept of the so-called de facto subscription obligation was subject to high requirements. The issue price chosen was not unreasonably low. Shareholders could avoid economic disadvantages by exercising their subscription rights. In addition, dilution effects can be compensated for by the trading of subscription rights to be set up by SPARTA.
The court’s decision is final.
The Renzenbrink & Partner team consisted of Dr. Lars Kirschner (Litigation/ Arbitration, Partner) and Bastian Harms, LL.M. (Washington) (Litigation/ Arbitration, Associate).
The 11th Senate of the Hanseatic Higher Regional Court of Hamburg was composed of the judges at the Higher Regional Court Rehling (Chair), Dr. Büßer (Rapporteur) and Dr. Brauer.