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| In examining the question of financial dependence in our case, due
regard must be placed on the fact that the IG not merely controls a
considerable majority; that is, almost 2/3 of the votes, but that their
financial control had already been created by the contract of 17 September 1926
establishing the “Interessengemeinschaft”. According to article 15,
subsection 2, of the stock corporation law of 30 January 1937 (Reich Law
Gazette I, p. 107), if a legally independent corporation is, by virtue of a
participation or in any other way, directly or indirectly, subject to the
dominant influence of another corporation, the dominant and the dependent
corporation jointly are regarded as a concern and, singly, as concern
corporations. |
| |
| * * * * * * * * * * |
| |
| II. 1 b. According to article 4 of the
“Interessengemeinschaft” contract, IG is entitled at any time to
declare its intention of taking over our entire assets by way of fusion. The
decision now assumes that the approximately 60.65 percent of the total vote
controlled by IG is insufficient to enforce such a demand for fusion. It
overlooks the fact that in case our stockholders’ meeting rejects the
fusion, IG is entitled to demand the transfer of real estate, buildings,
apparatus, and participations, or a part thereof, available at the end of the
current financial year, at the value recorded in the last balance sheet without
the continuance of the “Interessengemeinschaft” contract as such
being affected, unless IG terminated it. It is therefore obvious that this
provision of the "Interessengemeinschaft" contract considerably reinforces the
control of our corporation by the IG already established by its majority
vote. |
| |
| * * * * * * * * * * |
| |
| II. 1 c The Financial dependence of our company on Farben is
also expressed by the fact — as stated in the memorandum by the Cologne
regional Internal Revenue Office concerning the negotiations of 5 February 1940
— that we have to obtain the approval of the Technical Committee (TEA) of
Farben, to which our Generaldirektor Dr. Paul Mueller belongs because of his
specialized knowledge, for all expenditures for new installations in excess of
RM 10,000 (formerly RM 1,000), just like other Farben plants. It is an
incorrect assumption, and one entirely unsupported by facts, that the waving by
IG of their rights to draw off the full profits does not, on the face of it,
indicate a financial amalgamation and that, without closer knowledge of its
motives, it cannot be judged unequivocally. The very circumstances that the IG
had already for a number of years waived this claim and that the profits due to
it according to the preliminary balance |
1383 |
. 
