§ 55 Increase in share capital
(1) Where a resolution is passed to increase the share capital, a declaration by the person subscribing to the share which has been recorded and authenticated by a notary is required for each share in the increased capital subscribed to.
(2) Previous shareholders or other persons who have declared that they are joining the company by making the subscription may be permitted by the company to subscribe to a share. In the latter case, the document referred to in subsection (1) must indicate the nominal value of the share as well as other obligations which the person joining the company is to be under in accordance with the articles of association.
(3) Where a shareholder who is already a member of the company subscribes to a share in the increased capital, that shareholder acquires an additional share.
(4) The provisions of section 5 (2) and (3) concerning the nominal values of the shares and the provisions of section 19 (6) concerning the statute of limitations regarding the company’s claim for payment of the capital contribution also apply in respect of shares in the increased capital subscribed to.
Information for non-professionals
To Information for legal professionals
Relevance for legal relations
1Section 55 limited liability company code (GmbHG) is the initial standard of the limited liability company code (GmbHG) for the procedure of increasing the share capital of the limited liability company; additional the sections 56-57 limited liability company code (GmbHG) apply. In addition to some provisions relating to the capital increase in general, there are special regulations on the various types of capital increase.
A. Economic importance & use cases
2Economic reasons for carrying out capital increases can be, in particular, the acceptance of new shareholders or the increase of the equity base in order to create financing scope for investments. In addition to the direct inflow of funds resulting from the capital increase itself, the capital increase also makes it easier for the company to take out loans, as its creditworthiness increases. Especially, if the company is in a crisis and cannot provide any other collateral and would therefore no longer be able to obtain loans from banks due to its underfunding, a capital increase can be elementary in order to secure the continued existence of the company itself.
The consequence of the capital increase is that the strict provisions of the limited liability company code (GmbHG) on capital maintenance also apply to the increased share capital. The violation of this rules can lead to the personal liability of the respective shareholders.
In the case of the limited liability company, various types of capital increase are conceivable, between which a choice can be made depending on the situation. Firstly, it is conceivable that the shareholders of the GmbH directly inject new capital in the form of cash capital or other assets (in the case of the so-called non-cash capital increase/contribution in kind). In addition, it is possible to increase the equity capital by converting the company's reserves. Since no further capital is injected in this case, the liquidity of the company does not improve in this case. The participation of the shareholders in the capital does not change in this case either, as it is a case of pure internal financing. In addition, various mixed forms are also conceivable.
B. Procedure of a capital increase
3A capital increase first requires an effective shareholders' resolution in which the specific capital increase is decided, i.e. in particular the amount by which the share capital is to be increased. If the above-mentioned option of increasing the capital in non-cash contribution is to be chosen, the resolution must still contain the information specified in section 56 limited liability company code (GmbHG). When adopting the resolution, the statutory requirements for the form (notarization) and the required majorities (3/4 majority of votes) must be complied with. In addition, further requirements in the articles of association of the company may apply.
The existing shareholders of the company are generally entitled to a subscription right in the event of the capital increase. This ensures that the shareholders have the opportunity to hold the same percentage share in the company before and after the capital increase.
Example:
If a shareholder holds approximately 50% of the company’s previous share capital of € 25,000, i.e. € 12,500, he has the right to increase his own shareholding by a further € 12,500 in the event of a capital increase to € 50,000, so that he again holds 50%.
If a shareholder does not have sufficient financial resources to increase his share further or waives his right to do so, the other shareholders may exercise this right proportionaly.
Example:
A, B and C each hold 1/3 of the previous share capital of the company, which amounts to € 30,000. It is resolved to increase the capital to € 60,000. Each shareholder thus has the right to increase his shareholding by a further € 10,000. Since C is financially unable to do so or voluntarily waives his right, A and B can each increase their shareholding by an additional € 5,000.
In the event of a capital increase by conversion of reserves, the shareholders do not have to make an additional financial commitment in order to retain their previous relative shareholding in the company. There is no risk here that shareholders will not have sufficient funds to increase their shares further, which is why the previous shareholding is regularly retained (see above).
However, the subscription rights of existing shareholders may also be excluded. This may be necessary if additional shareholders are to be taken on as investors. In this case, the relative amount of shares of the existing shareholders in the company must be reduced. However, the exclusion must meet certain legal requirements. In particular, there must be an objective reason for the exclusion of the subscription right. Also, the purpose of the capital increase must be in the interests of the company itself and not merely in the interests of a single individual shareholders. These reasons may include the aim of taking on additional shareholders - for example, in order to bind particularly important employees more strongly to the company and to give them a share in its success. In the case of venture capital investments in young companies, usually their urgent need for financing cannot otherwise be covered. It is also conceivable that the capital increase and the associated exclusion of subscription rights are intended to enable the company to establish strategic alliances.
Furthermore, there must be no other means of achieving the desired objective that interferes less intensively with the interests of the excluded shareholders. In addition, the disadvantages for the shareholders concerned resulting from the exclusion must be weighted and balanced against the advantages for the company resulting from it.
If such an exclusion of subscription rights has been resolved and the existing shareholders are to participate after the capital increase in a way that deviates from their previous percentage shares, or if in the future additional investors other than the existing shareholders are to participate in the company, the existing shareholders must pass an additional shareholders' resolution. This resolution regulates the ratio in which the persons are to be entitled to subscribe. In practice, both resolutions can also be adopted jointly.
In order to take over the shares, the company and the respective transferees must now conclude a contract in which the obligation of the transferee to pay its contribution is regulated. This agreement is called takeover agreement. Subsequently, the transferee is obliged to pay the share of the contribution attributable to him. Under no circumstances should the payment be made to a debit account of the Company without first obtaining legal advice.
C. Problematic cases
4Particular problems may arise if, following the conclusion of this takeover agreement, there are disputes between the parties involved, e.g. in cases where the capital increase is to serve the purpose of admitting new shareholders and the latter come into dispute with the existing shareholders. The transferee does not become a shareholder as long as the capital increase has not been fully executed, i.e. its registration with the Commercial Registry has not taken place. However, if disputes arise, the registration will often not take place. The takeover agreement also does not give the transferee any enforceable claim to be admitted as a shareholder. He cannot therefore sue his way into his position as a shareholder. On the other hand, the obligation to make the contribution remains in principle. This is sometimes very disadvantageous for the transferee concerned. Therefore, after a certain period of delay, he is granted the right to unilaterally withdraw from his obligation to make the contribution under the takeover agreement. If the company can be accused of fault, it is also possible under certain circumstances that it may be obliged to pay damages to the transferee. However, this must not result in the transferee being placed in the same economic position as if he had actually become a shareholder. He will only be compensated for the financial losses he has suffered because he trusted in the execution of the transaction and which he would not have incurred if the takeover agreement had not been concluded from the outset.
It may therefore be advisable to regulate further modalities of the takeover of the shares in the final takeover agreement beyond the above-mentioned minimum content. These include, for example, the questions of which obligations are to apply to the company in detail and what consequences are to occur in the event of delay or thwarting of the registration of the capital increase. In the absence of such clear contractual rules, only the above-mentioned statutory institutes take effect, which may not always lead to a satisfactory result.
D. Effectiveness of the capital increase
5The respective increase in the share capital is to be registered with the commercial register by all managing directors pursuant to Secs. 57 para. 1, sec. 78 limited liability company code (GmbHG). After examination by the respective registry court in accordance with sec. 57a GmbHG in conjunction with sec. 9c limited liability company code (GmbHG), the capital increase is entered in the commercial register and published. Only then does the capital increase become effective. If the capital increase is entered and published in the registry, even if certain formalities are not complied with in the takeover declaration in the previous procedure, these errors are frequently cured and are therefore irrelevant. Regularly, the relevant defects can then no longer be challenged in court.
E. Squeeze Out
6A squeeze-out is the targeted exclusion of shareholders by resolution of the remaining shareholders. However, this term, which originates from stock corporation law, is to be defined differently under the limited liability company code (GmbHG). Under the stock corporation act (AktG), the squeeze-out of shareholders is possible in accordance with §
7Nevertheless, under the limited liability company code (GmbHG) the exclusion of shareholders is possible. For example, it is possible to exclude a shareholder from the company under certain conditions by means the statues of the company. The limited liability company code (GmbHG) itself contains only incomplete provisions on the (involuntary) exclusion of a shareholder.
8In practice, shareholder will regularly agree in the articles of association under which conditions shareholder can be excluded. For this purpose, it is agreed that the exclusion of a shareholder can only take place for good cause. Typical reasons are, for example, foreclosure on shares in the company, particularly serious breach of duty, criminal acts or, for example, serious infringements of a prohibition on competition. The decisive factor in each case is that the exclusion of the shareholder is the last resort.
9Another option to exclude disagreeable shareholders from a limited liability company is the targeted dilution of the company shares. Through capital increases to which the disagreeable shareholder does not subscribe, his relative share in the company's capital stock is in fact reduced and the shareholder's influence thus regularly shrinks. In individual cases, it is also conceivable that the capital stock could be increased with the exclusion of the subscription rights of the disliked shareholder.
Information for legal professionals
1) General and Procedure
6Under the German limited liability company code (GmbHG) shareholder can increase the amount of share capital specified in the articles of association. Secs. 55-57a limited liability company code (GmbHG) specify the case of an effective capital increase through the contribution of new capital in cash or contribution in kind, while Secs. 57c-57o limited liability company code (GmbHG) regulate capital increases from company funds.
2) Capital Increase
a) Shareholder Resolution to increase capital
8The shareholders must first pass a resolution to increase the share capital. The transfer of the authority to pass a capital increase resolution to other bodies of the company is not permitted.
The resolution on a capital increase by the shareholders is subject to broad entrepreneurial discretion, which in turn is only subject to limited judicial review. Therefore, it is generally not contrary to good faith if the majority shareholders decide to increase the capital for economic reasons and minority shareholders lack the financial means to increase their shareholding in the individual case, as they do not have an irrevocable right to maintain the previous percentage share in the Company.Berlin Regional Court, judgment of February 01, 2019 - 94 O 16/18 -, juris Only in rare cases can such a capital increase be contrary to good faith, namely if it is aimed precisely at making it impossible for minority shareholders with limited financial resources to exercise their subscription rights and thus force them out of the Company.Berlin Regional Court, judgment of February 01, 2019 - 94 O 16/18 -, juris
aa) Formal Requirements
9The qualified majority requirement of sec. 53 para. 2 sentence 1 limited liability company code (GmbHG) applies to the passing of the resolution. The resolution must be passed with a majority of three quarters of the votes cast. In contrast, the consent of all shareholders pursuant to sec. 53 para. 3 limited liability company code (GmbHG) is not required, although under sec. 24 limited liability company code (GmbHG) the old shareholders may also be liable for the new contribution.Wicke, GmbHG, 4th ed. (2020), sec. 55 no. 10; Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no. 17; Henssler/Strohn/Gummert, Gesellschaftsrecht, 4th ed. (2019), GmbHG sec. 55 no. 7 Furthermore, the resolution must be notarized under sec. 53 para. 2 sentence 1 limited liability company code (GmbHG).BGH, judgment of 17.10.2017 - KZR 24/15 = NJW 2018, 703, para. 27 The articles of association may also make further requirements, in particular stricter - but not lower - majority requirements.
bb) Increase amount
10It is also necessary that the resolution on the increase of the share capital specifies a certain amount of the increase. It can either state the new amount of the share capital ("increase of the share capital to X EUR") or the total amount of the increase ("increase of the share capital by X EUR"), whereby attention must be paid to the exact designation of what is intended. It is therefore advisable to specify both amounts.Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no. 10
Furthermore, it is also recognized that the increase of the share capital up to a certain maximum amount is generally permissible in the regular procedure pursuant to sec. 55 limited liability company code (GmbHG). In this case, a minimum amount can be determined as well. The exact amount of the increase is then only determined by the sum of the shares accepted. In this case, it is disputed whether it is necessary to set a short deadline for the acceptance of the increased share capital in the resolution in order not to achieve the effect of conditional or authorized capital in accordance with sec. 192, 202 stock corporation act (AktG). This was precisely not desired by the legislator for the limited liability company. According to the prevailing opinion, a period of six months should therefore be set in the resolution for the acquisition of the shares in order not to circumvent the special requirements of sec. 55a limited liability code (GmbHG), especially under the value limitation of sec. 55a para. 1 sentence 2 limited liability company code (GmbHG), with a disproportionately long subscription period.Saß, RNotZ 2016, 213 (214); Wicke, GmbHG, 4th ed. (2020), sec. 55 no. 5; Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no.37; other view.: Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no. 11 With regard to sec. 55a limited liability company code (GmbHG), on the other hand, it is recognized that a successive increase in several tranches based on a single increase resolution is not permissible in the proceedings pursuant to sec. 55 limited liability company code (GmbHG).Wicke, GmbHG, 4th ed. (2020), sec. 55 no. 5; Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no. 11
If an increase by an maximum amount is intended, the new amount of share capital must be stated as the maximum amount ("Increase of share capital up to X EUR”) in the respective resolution.
cc) Issue price
11The capital increase resolution must also specify the issue price of the new shares.Roth/Altmeppen/Roth, GmbHG, 9th ed. (2019), sec. 55 no. 31 The issue price must be at least equal to the nominal value of the share, but can be also higher than the nominal value (nominal value plus agio). It is permissible to specify a fixed amount and the rules for determining the issue price, on the basis of which the issue price is determined by the management or by a subsequent shareholders' resolution.Ziemons in: BeckOKGmbHG, 45 ed. (2020), sec. 55 no.36; other view: Priester/Tebben in: Scholz, GmbHG, 12th ed. (2020), sec. 55 no. 27 However, the rules must already be anchored in the resolution on the increase in such a way that there is no discretionary scope in the event of a subsequent determination. Discretionary power in such resolutions shall not be granted to the managing director.Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no.13a; Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no.52
dd) Nature of the capital increase; terms and conditions of the shares
12It is necessary to specify whether the capital increase is to be effected by issuing new shares or by increasing the nominal value of existing shares.Ziemons in: BeckOKGmbHG, 45 ed. (2020), sec. 55 no.44; Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no.42 If new shares are issued and their features differ (e.g. different profit participation rights, restrictions on transferability, rights to make additional contributions etc.), the features of the shares must be explicitly specified in the resolution on the capital increase.Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no.14; Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no.47 If shares of different categories already exist, the capital increase resolution must specify the category to which the new shares are to be assigned.
ee) Sample resolution [notarized] - shortened version
Shareholders´ Resolution
Waiving all formalities and deadlines prescribed by law or by the Articles of Association with regard to the convening of shareholders' meetings and the announcement of items for resolution, the shareholders hereby hold a shareholders' meeting of the Company and unanimously resolve as follows:
1. The share capital of the Company shall be increased from EUR [...] by EUR [...] to EUR [...] by issuing [...] new shares in the nominal amount of EUR [...] each.
2. A shall be authorized to take over [...] shares in the nominal amount of EUR [...] each.
3. B shall be authorized to take over [...] shares in the nominal amount of EUR [...] each.
4. The contributions are due for payment immediately in cash.
5. The new shares shall participate in the profits of the Company from the beginning of the financial year in progress when the capital increase is entered in the commercial register.
6. § [...] of the Articles of Association shall be replaced by the following:
"§ [... [Regulation on the Share Capital]]
The share capital of the Company amounts to EUR [...] (in words: [...] Euro)."
(7) The Company shall bear the costs associated with the capital increase.
ff) Sample resolution capital increase from company funds [notarized] - shortened version
Shareholders´ Resolution
Waiving all formalities and deadlines prescribed by law or by the Articles of Association with regard to the convening of shareholders' meetings and the announcement of items for resolution, the shareholders hereby hold a shareholders' meeting of the Company and unanimously resolve as follows:
1. Of the reserves reported in the annual financial statements,
- from the capital reserve EUR [...]
- from the statutory reserve EUR [...] and
- from the other reserves EUR [...]
shall be converted into share capital.
2. The share capital of the Company shall be increased from EUR [...] by EUR [...] to EUR [...].
3. New shares shall be created to which the shareholders shall be entitled in proportion to their previous participation in the share capital.
Accordingly, shareholder A shall be entitled to a new share in the nominal amount of EUR [...], shareholder B shall be entitled to a new share in the nominal amount of EUR [...].
4. § [...] of the Articles of Association shall be replaced by the following:
"§ [... [Regulation on the Share Capital]]
The share capital of the Company amounts to EUR [...] (in words: [...] Euro)."
5. The Company shall bear the costs associated with the capital increase.
b) Subscription right, Exclusion & Admission resolution
aa) Statutory subscription right
13In the event of any capital increase, the existing shareholders of the limited liability company shall be entitled to a statutory subscription right to the increased share capital in proportion to their existing shareholdings, analogously to sec. 186 stock corporation act (AktG).Ziemons in: BeckOKGmbHG, 45th ed. (2020), sec. 55 no. 71; Wicke, GmbHG, 4th ed. (2020), sec. 55 no. 11; Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no. 20; Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no. 70 ff..; other view: Roth/Altmeppen/Roth, GmbHG, 9th ed. (2019), sec. 55 no. 20
If a shareholder is entitled to more than one share, the subscription right may be exercised separately for each share. It is disputed whether partial exercise is also possible with regard to individual shares.Cf. Ziemons in: BeckOKGmbHG, 45th ed. (2020), sec. 55 no. 73 In order to exercise the subscription right, the beneficiary shareholder must submit a takeover declaration. The company may set a reasonable deadline for this. If subscription rights are not exercised (in full), the remaining shares are allocated proportionally to the remaining shareholders.Wicke, GmbHG, 4th ed. (2020), sec. 55 no. 11; Roth/Altmeppen/Roth, GmbHG, 9th ed. (2019), sec. 55 no. 29
bb) Exclusion of subscription rights
14However, the statutory subscription right of the existing shareholders can be restricted or excluded. On the one hand, this is already possible by means of a corresponding provision in the articles of association of the company, on the other hand, a exclusion can be agreed on in the specific capital increase resolution.Saß, RNotZ 2016, 213 (215); Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), GmbHG sec. 55 no.80
Since the exclusion of subscription rights represents an encroachment on shareholders' rights, it is only permissible under limited formal and substantive requirements.
(1) Formal requirements
15The form of sec. 53 para. 2 limited liability company code (GmbHG) (notarization of the resolution) and the majority requirement of three quarters of the votes cast contained therein must be complied with in any case for such a resolution. It is disputed whether the resolution also requires a majority of three quarters of the share capital in analogous application of sec. 186 para. 3 sentence 1 stock corporation act (AktG).For example: Baumbach/Hueck/Servatius, 22 ed. (2019), GmbHG, sec. 55 no. 25a; Saß, RNotZ 2016, 213 (216) advises for notarial practice to also seek a majority of three quarters of the share capital if possible; other view: Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no. 83 In the context of consulting practice, the safest way is therefore to choose a majority of three quarters of the share capital. A special situation only arises if the existing shares have restricted transferability. In such cases, the resolution to increase the capital with the exclusion of subscription rights requires the same majority as is specified in the share transfer restriction clause.Baumbach/Hueck/Servatius, GmbHG, 22nd edition (2019), sec. 55 rn. 25b
The prohibition of voting for individual shareholders under sec. 47 para. 4 limited liability company code (GmbHG) does not apply mutatis mutandis, even if the exclusion of the subscription rights of the other beneficiaries is intended to benefit these shareholders. The risk of self-beneficiation can be adequately countered here by the substantive judicial control of resolutions on the exclusion of subscription rights.Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no. 25b; other view.: Wicke, GmbHG, 4th ed. (2020), sec. 55 no. 11
Furthermore, the announcement in the agenda pursuant to sec. 51 para. 2 limited liability company code (GmbHG) and a written statement of reasons analogous to sec. 186 para. 4 sentence 2 stock corporation act (AktG) are required.Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no.84 f.; Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no. 25b
(2) Substantive requirements
16There must be an an objective reason to exclude subscription rights and the pursuit of the exclusion is in the interests of the Company and not only in the interests of individual shareholders.Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no.87; Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no. 26; Ziemons in: BeckOKGmbHG, 45th ed. (2020), GmbHG sec. 55 no. 83 Objective reasons are, for example, restructuring intentions that cannot otherwise be implemented or cooperation with other companies as well as the participation of executives.Cf. for example Ziemons in: BeckOKGmbHG, 45th ed. (2020), sec. 55 no. 83; Wicke, GmbHG, 4th ed. (2020), sec. 55 no. 11; Saß, RNotZ 2016, 213 (216). Furthermore, the exclusion must be absolutely necessary, i.e. there must be no other measures available which interfere less intensively with the interests of the excluded shareholders in order to achieve the desired objective.Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no.88 Finally, the disadvantage for the excluded shareholders must not be out of proportion to the advantage sought for the company.Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no. 26; Ziemons in: BeckOKGmbHG, 45th ed. (2020), sec. 55 no. 85
If only the subscription rights of individual shareholders are excluded, particularly high requirements must be placed on this proportionality test, because a severe special sacrifice is demanded of those affected.Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no.89; Ziemons in: BeckOKGmbHG, 45th ed. (2020), sec 55 no. 85; Priester/Tebben in: Scholz, GmbHG, 12th ed. (2020), sec. 55 no. 60
cc) Admission resolution
17The persons who can take over the new shares are determined in the so-called admission resolution.Ziemons in: BeckOKGmbHG, 45th ed. (2020), sec. 55 no. 89
If the statutory subscription right of the existing shareholders has been excluded or if persons other than the existing shareholders are to be entitled to subscribe, a separate admission resolution must be adopted. In this resolution a decision is made on the deviating admission of the persons entitled to take over these new shares.Saß, RNotZ 2016, 213 (216); Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no. 69, 105
However, it is disputed whether a separate resolution on admission must be passed in every case, i.e. even if only the existing shareholders participate in the capital increase in proportion to their previous shareholding. The majority opinion, which assumes the existence of a statutory subscription right,see above under 3. a) rejects the necessity of a additional resolution on the basis of the corresponding application of sec. 186 stock corporation act (AktG).Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no. 21; Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no. 70, 105 According to the opposing view, such an admission resolution must also be adopted if existing shareholders are to be admitted in accordance with their previous shareholding quota, which is justified by the fact that sec. 55 para 2 limited liability company code (GmbHG) does not distinguish between the two cases.Ziemons in: BeckOKGmbHG, 45th ed. (2020), sec. 55 no. 90 Abstract subscription right of the existing shareholders in accordance with their previous shareholding is only transformed into a concrete subscription claim by the admission resolution.
In contrast to the capital increase resolution, the admission resolution can be adopted by a simple majority of the votes cast.Saß, RNotZ 2016, 213 (216); Ziemons in: BeckOKGmbHG, 45th ed. (2020), sec. 55 no. 93; Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no. 105
c) Takeover of the shares
aa) Takeover agreement
18The takeover of the shares is implemented by a membership agreement between the company and the transferee.Henssler/Strohn/Gummert, Gesellschaftsrecht, 4th ed. (2019), GmbHG sec. 55 no. 6; Wicke, GmbHG, 4th ed. (2020), sec. 55 no. 12 This agreement establishes the obligation of the transferee under corporate law to make the agreed on contribution against transfer of the shares.Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no. 31
The takeover declaration made by the transferee for this purpose must be notarized in accordance with sec. 55 para. 1 limited liability company code (GmbHG). In practice, the declaration is frequently also notarised, as it is combined with the capital increase resolution in one document.If under sec. 311b para. 1 of the German Civil Code (BGB) the transferee is obliged to contribute a property to the company, the takeover declaration must be notarized in any case.Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no. 32; Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), GmbHG sec. 55 no. 129 If the transferee is represented at the conclusion of the takeover agreement, the formal requirement also applies accordingly to the power of attorney for signing the takeover declaration. Section 2 para. 2 limited liability company code (GmbHG) shall take precedence here over sec. 167 para. 2 German Civil Code (BGB) by corresponding application.Wicke, GmbHG, 4th ed. (2020), sec. 55 no. 12; Saß, RNotZ 2016, 213 (217)
There is no corresponding formal requirement for the declaration of the company. Since it is an internal transaction under company law, it falls in the responsibility of the shareholders, who thus also act as representatives of the company.BGH, judgment of 30. 11. 1967 - II ZR 68/65 = NJW 1968, 398 However, the shareholders can authorize another person - in particular the managing director - to issue the takeover declaration by simple shareholders' resolution (also implied within the framework of an admission resolution).Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no. 34; Saß, RNotZ 2016, 213 (217)
If the overtaking shareholder is new to the company, under sec. 55 para. 2 sentence 2 limited liability company code (GmbHG) all other ancillary obligations and obligations to make additional contributions arising from the articles of association must be included in the takeover declaration.Saß, RNotZ 2016, 213 (216)
If the sole shareholder of the company is taking over all new shares isssued, sec. 181 German Civil Code (BGB) does not apply for this agreement. The mandatory conflict of interest is missing.Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no. 35; Saß, RNotZ 2016, 213 (217)
bb) Delay or thwarting of the capital increase
19Cases in which the capital increase fails or is delayed after signing of the takeover agreement, e.g. because of disputes between shareholders and transferees, are problematic. The transferee may suffer damages as a result of a delay, or the question may arise as to how he can withdraw from the takeover agreement.
According to the case law of the Federal Court of Justice (BGH), a withdrawal from the takeover agreement is possible by way of a rescission pursuant to secs. 313 para. 3 sentence 1, 346 et seq. German Civil Code (BGB) due to the disruption of the basis of the contract.BGH, judgment of 3.11.2015 - II ZR 13/14 = NJW 2015, 3786, para. 16 The Federal Court of Justice has now recognized that the takeover agreement, despite its corporate law character, also contains elements of the law of obligations.Wachter, DB 2016, 275 In the view of the court, the actual implementation of the capital increase within a reasonable period of time is the basis of the takeover agreement.BGH, judgment of 3.11.2015 - II ZR 13/14 = NJW 2015, 3786, para. 16
Since the capital increase as an amendment to the articles of association pursuant to sec. 54 para. 3 limited liability company code (GmbHG) only becomes effective upon registration with the commercial registry, the transferee is not entitled to any membership rights prior to this, nor does he acquire any expectant rights.BGH, judgment of 3.11.2015 - II ZR 13/14 = NJW 2015, 3786, para. 13 If the capital increase fails, he is therefore not entitled to any claims for damages based on the so-called positive interest (‘positives Interesse’) which would place him in the same position as if he had successfully become a shareholder of the company.BGH, judgment of January 11, 1999 - II ZR 170/98 = NZG 1999, 495; Bieder, NZG 2016, 538f. However, the takeover agreement may give rise to a fiduciary duty of the company to ensure that the capital increase is implemented swiftly and properly, if the company is expressively obliged to implement the capital increase in the takeover agreement.BGH, judgment of 3.11.2015 - II ZR 13/14 = NJW 2015, 3786, para. 30 The extent to which such a fiduciary duty also exists without an agree on obligation to carry out the capital increase in the takeover agreement has not yet been clarified.Wachter, DB 2016, 275 affirms this with reference to the reasons for the ruling in the cited Federal Court decision In the event of a culpable breach of duty, the fiduciary duty can give rise to a claim for damages based on the so-called negative interest (‘negatives Interesse’), i.e. a situation must be created which would exist if the transferee had not entered into the obligation to make the contribution agreed on in the takeover agreement.BGH, judgment of 3.11.2015 - II ZR 13/14 = NJW 2015, 3786, para. 32
From the point of view of the parties involved, it may therefore be advisable to regulate the modalities of the takeover in detail in the takeover agreement itself. This can, for example, contain expressly agreed contractual penalties for the event of non-execution of the capital increase.Wicke, GmbHG, 4th ed. 2020, sec. 55 no. 16a; Wachter, DB 2016, 275 For example, it can also be specifically defined when the appropriate period for carrying out the capital increase has been exceeded and thus the right of withdrawal of the transferee arises.Cf. Bieder, NZG 2016, 538 (540)
cc) Pre-investment company
20Under certain circumstances, a so-called pre-investment company may exist between the transferees of the shares participating in the capital increase.OLG Schleswig (17th Civil Senate), judgment of 04.07.2014 - 17 U 24/14; in detail: Priester, GWR 2014, 405 This is a partnership which - depending on whether it already operates a commercial business or not - is either a partnership under civil-law or a general partnership.Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no. 164a However, the tacit conclusion of a partnership agreement on the formation of such a pre-investment company can only be assumed if a purpose going beyond the increase of the share capital is pursued by the partners (e.g. in order to pursue a project going beyond the previous object of the company).Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no. 164b
Since the pre-investment company is a partnership with its own legal personality, the assets of the pre-investment company do not automatically pass to the limited liabilities association if the purpose of the pre-investment company is achieved or the capital increase fails.Priester, GWR 2014, 405 (406); Lieder in: Münchener Kommentar zum GmbHG, 3rd ed. (2018), sec. 55 no. 164c
If such a pre-investment company exists, its liquidation in the event of the failure of the capital increase is therefore carried out in accordance with secs. 730 et seq. German Civil Code (BGB).
dd) Sample Takeover-Agreement
Pursuant to the deed of the notary [...] in [...] dated [...], (Cert. No.), the shareholders' meeting of [...] limited liabilities company with its registered office in [...] has resolved to increase the share capital of the Company from EUR [...] by EUR [...] to EUR [...]. In this context, [...] new shares in the amount of EUR [...] shall be issued. These will be issued against payment of the respective nominal amount to the account of the Company. The shareholder [e.g. A] has been admitted to take over a new share with the serial number [...] in the amount of EUR [...], the shareholder [e.g. B] has been admitted to take over a new share with the serial number [...] in the amount of EUR [...].
Shareholder A hereby takes over the aforementioned shares in the amount of EUR [...], shareholder B hereby takes over the above-mentioned shares in the amount of EUR [...].
d) Contribution payment & Registration/Effectiveness of the Capital Increase
21Subsequent to the conclusion of the takeover agreement, the transferee shall make the contribution on the basis of its corresponding obligation. Under sec. 56a limited liability company code (GmbHG), sec. 7 para. 2 sentence 1 and para. 3 limited liability company code (GmbHG) apply in particular to the payment of the contribution by the transferee. Therefore, in the case of a cash contribution at least one quarter must have been paid on the new capital contributions. Furthermore, sec. 19 limited liability company code (GmbHG) applies. Despite the reference in sec. 56a limited liability company code (GmbHG), which only refers to sec. 19 para. 5 limited liability company code (GmbHG), the so-called principle of real contribution of the share capital (‘Grundsatz der realen Aufbringung des Stammkapitals’) also applies in the context of the capital increase. Therefore, sec. 19 limited liability company code (GmbHG) is comprehensively applicable according to the accepted view.Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 56a no. 1; Ziemons in: BeckOKGmbHG, 45th ed. (2020), sec. 55 no. 133 Pursuant to sec. 55 para. 4 limited liability company code (GmbHG) in conjunction with sec. 19 para. 6 limited liability company code (GmbHG), the claim to contribute is subject to a limitation period of ten years.
The capital increase shall become effective upon its entry in the commercial register (Handelsregister).BGH, judgment of 17.10.2017 - KZR 24/15 = NZG 2018, 29, para. 32 With the entry the newly issued shares or the increased value of the shares come into existence with the current nominal amount.Ziemons in: BeckOKGmbHG, 45th ed. (2020), sec. 55 no. 135; Wicke, GmbHG, 4th ed. (2020), sec. 55 no. 16; Henssler/Strohn/Gummert, Gesellschaftsrecht, 4th ed. (2019), GmbHG sec. 55 no. 20 Defects in the takeover declaration (e.g. violations of the form of sec. 55 para. 1 limited liability company code (GmbHG)) shall be remedied upon registration of the capital increase and can no longer be asserted.Ziemons in: BeckOKGmbHG, 45th ed. (2020), sec. 55 no. 129ff.; Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 55 no. 42 However, this does not apply if an attributable takeover declaration is completely missing and registration nevertheless takes place. This applies in particular to cases in which the declaration is missing entirely or is ineffective due to a lack of or limited legal capacity.Baumbach/Hueck/Servatius, GmbHG, 22nd ed. (2019), sec. 57 no. 27; BGH, judgment of 17.10.2017 - KZR 24/15 = NZG 2018, 29, para. 35. Under no circumstances should the payment be made to a debit account of the Company without first obtaining legal advice.
Author / Law firm
Tiefenbacher Rechtsanwälte Partnerschaft
Tiefenbacher Rechtsanwälte Partnerschaft
Mr. Tobias Bieber
Mrs. Christin Krämer
Im Breitspiel 9
69126 Heidelberg
Tel: +49 6221 - 3113- 367
Fax: +49 6221 311311
https://www.tiefenbacher.de
Practice areas
Profile of the law firm
We accompany you from the establishment of a company to the further development of your business activities, e.g. by supporting you in setting up sales structures, to expanding your business through acquisitions or the final sale or succession planning. We support you in choosing the right legal form, prepare the necessary documents (e.g. articles of association, statute, registrations in the commercial register) for the type of company you have chosen (e.g. for corporations such as entrepreneurial companies, GmbH or AG, or partnerships such as GbR or GmbH & Co. KG) and are at your side in all corporate law issues. This includes, in particular, representation in and out of court in shareholder disputes or comprehensive advice on the liquidation of a company.
Strategic orientation
Our clients include both shareholders and companies. The spectrum ranges from individuals and small or medium-sized family businesses to listed stock corporations and international groups.
Thanks to our cooperation with auditors and tax consultants, we can advise companies from a single source not only from a legal, but also from a tax point of view.
Finally, through our active membership in several international lawyer networks, we guarantee corporate law advice worldwide. The same applies to the auditors and tax advisors associated with us.
Offices & lawyers
Chemnitz
Dresden
Erfurt
Frankfurt am Main
Heidelberg
Jena
Leipzig
Stuttgart
Strategic Alliances
ALFA International (worldwide)
Association of European Lawyers (Europe)