Rulings on the Right of Redemption in the GmbH

Below you will find one of the most comprehensive and up-to-date collection of interesting judgments of recent years on the law of redemption and shareholder exclusion in the GmbH. Further judgments in corporate law on other corporate law topics can be found on the overview page.

The judgments are updated continuously.

You can use our search function to enter a search term and navigate to the respective hits using the arrows. 

 

Exclusion of a shareholder: On the compulsory redemption of a GmbH business share

 

Action for exclusion and redemption of a GmbH share

Munich Higher Regional Court 2021

(1) The shareholder who is to be excluded shall not have the right to vote in the vote on the filing of an action for exclusion.

(2) Whether there is actually good cause for the exclusion of a shareholder is irrelevant for the decision to bring an action for exclusion, because this question is to be decided exclusively in the legal dispute on the action for exclusion.

(3) A final judgment of exclusion authorises the company to realise the share of the excluded shareholder which has now become without bearer, whereby one of the possible types of realisation, apart from the sale of the shares to a third party or the takeover of the shares by the company, is the redemption of the shares, even if this is not provided for in the articles of association.

(4) The competence of the shareholders' meeting to decide on its representation in the exclusion proceedings follows as an annex from its competence to decide on the filing of an action for exclusion.

 

Squeeze-out of a shareholder

LG Stuttgart 2021

A statutory creation of a permission to compulsory redemption within the meaning of § 237 (1) sentence 1, 2 AktG, which applies equally to the shares of all classes, does not change "the relationship" of the classes of shares to each other to the detriment of one class, but potentially affects all of them equally.

 

Prerequisites for a blocking minority in the event of an increase in the share of voting rights through the redemption of shares pursuant to Section 34 GmbHG

LSG Mecklenburg-Western Pomerania 2021

(1) The status of a shareholder-director shall be determined solely on the basis of the entry published in the Commercial Register with the respective shares. In the absence of such an entry, changes by way of the redemption of shares have no effect on the assessment under status law.

(2) Agreements outside the articles of association which affect the distribution of votes are irrelevant for the assessment of the status. Instead, only the legal power according to the articles of association is to be taken into account.

(3) Also in the relationship of the shareholder to the company, changes in the voting ratios are only effective after entry in the commercial register. As long as the entry of a shareholding - in this case exceeding 50% - is missing, the shareholder does not have a blocking minority.

 

Interim legal protection against exclusion as shareholder

Munich Higher Regional Court 2020

(1) In the absence of a provision in the articles of association regarding the exclusion of a shareholder from the company, an exclusion resolution of the shareholders' meeting does not yet lead to the exclusion of the shareholder concerned. Rather, in such a constellation, an effective exclusion requires a ruling on the form of the exclusion after an action for exclusion has been successfully brought. The shareholder to be excluded retains his full shareholder rights until a legally binding judgement on his exclusion has been issued. The shareholder to be excluded retains his full shareholder rights until a legally binding judgement on his exclusion has been issued.

(2) Even if the exclusion is not provisionally binding, there may be a risk that an amended list of shareholders which no longer shows the shareholder to be excluded will be submitted to the Commercial Register, which could justify action by the shareholder to be excluded by way of interim relief. However, the requirements to be met in such a constellation in order to establish a prima facie case for injunction are high. In addition to the resolution, there must be further circumstances justifying the current risk of the submission of an incorrect list of shareholders.

 

Retirement of a GmbH share and forecast of an underbalance in relation to the compensation claim

OLG Brandenburg 2020

(1) A resolution concerning the redemption of a GmbH share is void if it is certain at the time of its adoption that a claim for compensation of the negatively affected shareholder which becomes due as a result cannot be paid from free assets of the company which do not affect the share capital.

(2) If the redemption payment is not due upon the effectiveness of the redemption resolution but only at a later point in time, it depends on the forecast to be made at the time the resolution is adopted whether the company will have an underbalance at maturity or whether such an underbalance will be generated by taking into account the redemption payment claim.

 

Time limit for an action for annulment of shareholders' resolutions of a GmbH

Dresden Higher Regional Court 2020

On the time limit for an action for annulment against shareholders' resolutions of a GmbH.

1 A GmbH shareholder who did not participate in the shareholders' meeting is obliged to inform himself within a period of approximately two weeks about the resolutions passed there.

2. a motion for a resolution need not be contained verbatim in advance in the agenda announced with the invitation to the shareholders' meeting; it shall suffice if the motion has a factual reference to the agenda.

 

Claim for determination of the compensation claim of a shareholder for his withdrawal from the debtor for the insolvency table

BGH 2020

1) The compensation claim of a shareholder of a GmbH & Co. KG who left before the insolvency, the payment of which would violate the capital maintenance requirement of §§ 30, 31 GmbHG by analogy, is only to be taken into account in the final distribution in accordance with § 199 InsO.

(2) Section 30 (1) GmbHG also precludes payment of the severance payment claim if the severance payment could have been serviced from the free assets of the company at the time of the withdrawal and also one year thereafter. Section 135 (1) no. 2 InsO is not applicable accordingly in this respect.

 

Contestability of the compulsory redemption of a GmbH share in the event of seizure by the company

KG 2020

If the articles of association of a GmbH provide for the possibility of compulsory collection or compulsory assignment of a share in the company in the event of its attachment, a corresponding collection or assignment resolution may violate the duty of loyalty under company law and be contestable if the company itself has attached the shares in question by way of execution by way of security pursuant to section 720a of the German Code of Civil Procedure (ZPO) on the basis of a non-appealable title in respect of a claim disputed between the parties.

 

Action for annulment, contract of employment, shareholders' resolution, motion to sue, breach of duty

LG Hagen 2019

 

Convening of a GmbH shareholders' meeting by minority shareholders

OLG Brandenburg 2019

1) Sec. 16 (1) GmbHG establishes an irrebuttable presumption for the shareholder status of the registered persons to the extent recorded in the list of shareholders.

(2) The provision of section 121 (2) sentence 2 AktG, according to which persons who are entered in the commercial register are deemed to be authorised to convene the meeting, does not apply mutatis mutandis to the GmbH.

 

Entry of an objection in their list of shareholders

LG Berlin 2019

 

Exclusion of shareholders for good cause with compulsory assignment of shares

OLG Frankfurt a. M. 2019

(1) In the case of a general meeting pursuant to § 51 (3) GmbHG, any violations of the convening rules are irrelevant if all shareholders were present and no objection was raised.

The compulsory withdrawal of a shareholder can take place on the basis of an exclusion resolution with a rule in the articles of association. In addition, the compulsory withdrawal can take place on the basis of an action for exclusion developed by case law, by compulsory withdrawal on the basis of a rule in the articles of association and in accordance with § 34 (2) GmbHG.

(3) The circumstances that may constitute good cause for the exclusion of a shareholder may be linked to characteristics, personal circumstances or the conduct of the shareholder, without these areas always being able or obliged to be sharply demarcated from one another. An overall view of all circumstances must be taken. The already strict requirements that are placed on the exclusion of a shareholder become more stringent in the case of a two-tier GmbH. The increased trust in the other shareholder at the outset must therefore inevitably lead to a stricter standard in the case of the exclusion of a shareholder to be examined in order to justify the exclusion.

 

Determination of the amount in dispute in disputes concerning the content and amendment of the list of shareholders

OLG Dresden 2019

If the shareholder affected by a redemption order requests the issuance of an interim injunction temporarily prohibiting the submission of an amended list of shareholders to the commercial register, the amount in dispute shall be calculated on the basis of a fraction of the market value of the share concerned.

 

Resolution on the redemption of a share in the company

BGH 2018

If it is certain at the time of the resolution on the redemption of a share that the free assets of the company are not sufficient to pay the redemption fee, the redemption resolution is also null and void if the company has hidden reserves the dissolution of which would enable it to pay the redemption fee.

 

Action for lack of resolution in case of lack of summons only against co-partners and compulsory collection without warning

OLG Stuttgart 2018

(1) If a shareholder is informed in good time of the time and place of the shareholders' meeting and of the agenda by means of an invitation sent by e-mail, he has been enabled to participate in the meeting and to exercise his rights as a shareholder, and if a written invitation sent by registered mail is no longer received in good time, this shall not lead to the nullity of the resolutions adopted at that meeting.

(2) There is no contestability insofar as the contesting shareholder exclusively complains about the violation of third-party participation interests - namely the incorrect summoning of a fellow shareholder. The purpose of voidability in this respect is to give the shareholder concerned the exclusive right to safeguard his participation rights, so that only he can bring the resolution to an end by way of an action for avoidance due to the infringement of his participation rights.

A challenge due to the participation of a person not entitled to participate in the shareholders' meeting is only justified if the presence of the third party not entitled to participate exceptionally impairs the participation interests of shareholders, for example because they are put under pressure in their voting behaviour by the third party present.

 

Unfounded redemption of shares

OLG Dresden 2018

(1) With regard to the question of the justification of the redemption of shares, in the required overall consideration, even if the payment of the contribution is delayed, this cannot be based on the fact that the payment has been made in the meantime and the resolution on the redemption takes place considerably later.

(2) With regard to the repayment of a shareholder loan, the provisional declaration of an audit reservation is not to be classified as being in substantial breach of duty because, in view of the fact that the loan repayment was not enforced for one and a half years, a need for clarification, for example with regard to deferral or repayment issues, does not appear to be remote; this therefore does not justify the redemption of shares.

3) A parallel management activity for another company is not sufficient for the redemption of shares due to a conflict of interest if this activity has already ended for some time at the time of the redemption resolution.

 

Right of rescission and burden of proof for good cause in the case of compulsory redemption of GmbH shares

OLG Jena 2018

(1) A regulation of the contestation period in the articles of association of the GmbH is permissible insofar as a period is not set which, when viewed from an evaluative perspective, is to be regarded as unreasonable under all circumstances. A time limit with which the time limit for rescission, which is considered reasonable by law for the general case pursuant to Section 246 AktG, is doubled is not unreasonable.

(2) The shareholder retains the right to contest the redemption of his share despite the immediate effectiveness of the redemption in order to give effect to the constitutionally required legal protection.

(3) The burden of proof and presentation of the existence of the grounds for recovery required by the statutes lies with the defendant company.

 

Damages, shareholders' meeting, redemption, share in company

LG Cologne 2017

 

Complaint in the event of the redemption of a share

BGH 2013

(1) The grievance of a limited liability company which appeals against a judgment by the court of cassation in respect of a resolution on the redemption of a share shall, in principle, be assessed on the basis of the market value of the share affected by the redemption.

(2) If, at the beginning of the proceedings, a party challenged the jurisdiction of the Landgericht on the ground that the threshold for the value of the claim had not been reached, and if, at the second instance, that party submitted that the company was in such a bad way that the shares were no longer worth anything, that party is precluded from relying on new information on the assessment of the value of the claim in order to exceed the threshold for the value of the claim under Paragraph 26(8) of the EGZPO.

 

Interim injunction proceedings in a dispute concerning the dismissal of the managing director

OLG Naumburg 2013

(1) The burden of proof in preliminary injunction proceedings follows the distribution of the burden of proof in the main proceedings. If minutes of a shareholders' meeting are submitted for this purpose, the submitting party must, in the event of dispute, make the authenticity credible as a private document, using present evidence.

2. if the dismissal of the managing director is pursued in a limited liability company, a provisional regulation of the powers of the executive bodies by the court pursuant to § 940 ZPO is permissible until the decision on the disputed resolution result of the shareholders' meeting.

(3) The principle of equal treatment of shareholders, or the prohibition of arbitrary discrimination of individuals by the majority, precludes the redemption of a share if the conditions for redemption are met in the case of several shareholders, but action is taken against only one shareholder, without this differentiation being objectively justifiable.

 

Important reason for the redemption of a GmbH business share - failure of the partnership between shareholders

BGH 2013

1) Withdrawal of the share of a GmbH shareholder due to a profound disagreement between the shareholders.

The failure of a partnership between shareholders of a GmbH is only of significance for the answer to the question as to who predominantly caused the internal conflict within the company if and to the extent that the resulting personal conflict was brought into the company by the parties involved.

 

Commercial matter, shareholders' resolution, rescission, effectiveness, articles of association, voting agreement, shareholders' meeting, nullity, division of business, shareholders' duty

LG Offenburg 2013

 

Important reason for the dismissal of one of two shareholder-directors

OLG Stuttgart 2012

(1) Good cause for the dismissal of one of the two shareholder-managing directors of a GmbH already lies in the fact that they are so at odds with each other that cooperation between them is no longer possible, at least to the extent that the respective person to be dismissed has contributed to the discord through his - not necessarily culpable - conduct, whereby the relationship of the respective contributions to the cause and culpability to each other is not decisive. These standards also apply in a two-member GmbH with two shareholder-managing directors.

 

Ground for injunction, confiscation order, claim for injunction

KG 2012

 

Share, confiscation

LG Dortmund 2012

(1) Even the discrepancy between the share capital under the articles of association and the sum of the nominal amounts of the remaining shares does not render the resolution on the redemption of a GmbH share null and void.

 

Resolution for the redemption of a company - Effectiveness of the redemption before payment of the settlement fee

BGH 2012

1. if a redemption resolution is neither null and void nor declared null and void, the redemption shall take effect upon notification of the resolution to the shareholder concerned and not upon payment of the compensation.

(2) The partners who have adopted the resolution on redemption shall be liable to the withdrawing partner on a pro rata basis if they do not ensure that the compensation can be paid out of the company's uncommitted assets or if they do not dissolve the company.

 

Correction of a list of shareholders submitted before the MoMiG came into force

OLG Munich 2012

If the newly submitted list of shareholders serves to correct a list of shareholders with a cut-off date prior to the entry into force of the MoMiG on 1 November 2008, the sum of the nominal amounts of all shares does not have to correspond to the share capital.

 

Compulsory redemption of shares

OLG Munich 2011

(1) The correspondence requirement of § 5 (3) sentence 2 GmbHG is also applicable to the compulsory redemption of shares.

(2) An important reason justifying confiscation can only be assumed in the case of sustained gross breaches of duty which must be so serious that, after a comprehensive weighing of interests taking into account all circumstances of the individual case, another solution cannot reasonably be expected of the other shareholders.

 

Shareholders' meeting, redemption, shares

OLG Koblenz 2011

 

Redemption of the share after the declaration of withdrawal of a shareholder

OLG Munich 2011

(1) If the GmbH has accepted the extraordinary termination of a shareholder and used this as a reason to decide to redeem the share, the redemption resolution is at most contestable, but not null and void, even if there was no good cause for the termination.

2. the withdrawal of the share after the declaration of withdrawal of a shareholder, i.e. ultimately the agreement on his withdrawal, is comparable to an exclusion with immediate effect permitted in the articles of association.in the latter case the shareholder status of the person concerned does not revive if the company does nothing to ensure that the excluded person obtains the equivalent value of his share = NJW 1960, 866).

A claim for compensation and accordingly a claim for information according to §§810, 242 BGB already arises upon receipt of the extraordinary termination of the shareholder by the GmbH. If he can no longer enforce these claims due to the statute of limitations, he cannot refer to the fact that the redemption order has lost its effect due to the lack of severance payment.

 

Resolution on redemption, shareholders' meeting, share capital, co-shareholders, share value, withdrawal, exclusion of severance payment

OLG Stuttgart 2011

 

active legitimacy, insolvency administrator, public company, management remuneration, change, general partner, lack of effectiveness, shareholders' resolution, capital protection

OLG Naumburg 2011

 

Partial revision success due to effective exclusion of the plaintiff

BGH 2011

If the shareholders' meeting of a GmbH passes a resolution to exclude a shareholder and to redeem his share in the company, and if the redemption is void due to a violation of §§ 34 III, 30 I GmbHG, the exclusion is also void.

2 In this case, the exclusion is also null and void if the articles of association provide that the exclusion shall become effective upon receipt of the exclusion resolution.

 

Share, confiscation

LG Neubrandenburg 2011

According to prevailing opinion, the redemption of a share leads to its disappearance. Thus, in the present case, the nominal amounts of the shares and the share capital would cease to exist because the resolution of the shareholders' meeting of 24 November 2009, in which the plaintiff's share was redeemed, does not contain any further provisions. Thus, the requirements of § 5 (3) sentence 2 GmbHG are not met.

 

Right to information after termination of the shareholder relationship without notice and redemption of the company shares

LG Traunstein 2011

1) A redemption resolution is not invalid due to the lack of a provision in the articles of association if the shareholder concerned has himself previously declared the termination of his shareholder relationship without notice as well as his withdrawal from the company, as this in any case implies consent.

2 After such a declaration of termination, there is no longer a claim to information pursuant to § 51a GmbHG.

3. the point in time of the termination without notice is to be taken into account for the 3-year limitation period for a claim for information pursuant to §§ 810, 242 BGB.

 

Shareholders' meeting, share capital, chicken fattening farms, company law binding, company shares, redemption resolution

OLG Brandenburg 2010

 

Dependence of the effectiveness of a share redemption order on the payment of a severance payment

OLG Frankfurt 2010

(1) Abandoning its previous case law, the Senate adopts the view that a confiscation order - irrespective of the payment of the settlement - becomes effective immediately upon notification of the order.

 

Shareholders' meeting, capital contribution, full payment, company shares

OLG Munich 2010

 

Termination, employment contract, GmbH managing director, position as a member of an executive body

OGH Austria 2010

 

GmbH, share capital, increase, company share

LG Kleve 2009

 

Retention of the shareholder position if the withdrawal of a shareholder requires implementation

BGH 2009

(1) If the articles of association of a private limited company provide that the withdrawal of a shareholder requires implementation, a shareholder who has declared his withdrawal from the company shall retain his status as a shareholder until the required implementation. However, he may only exercise his membership rights to the extent that his interest in receiving the compensation to which he is entitled is affected; his membership obligations are reduced accordingly.

A comprehensive non-competition clause addressed to a shareholder in the articles of association of a GmbH is to be interpreted in the light of Art. 12 I GG in a restrictive manner in the sense that it only claims validity until the - effective - withdrawal from the company or until the declaration of the company that it does not wish to oppose the withdrawal of the shareholder declared without the existence of an important reason. The continued validity of the non-competition clause beyond this point in time would be tantamount to an occupational ban in violation of § 138 BGB in conjunction with Art. 12 GG.

 

Shareholding, redemption

OLG Hamm 2009

(1) The seizure of a GmbH share due to attachment may be in breach of trust if the attachment promises only minor economic success.

2 This applies all the more if the enforced claim is not directly directed to payment to the enforcing co-partner but to payment to the company.

 

redemption resolution, company, shareholders, shareholders' resolution, shareholders' meeting, company law, articles of association, GmbH, co-partners, non-competition clause

LG Dortmund 2009

 

Involuntary withdrawal of a GmbH shareholder - no compensation claim from joint guarantee

OLG Brandenburg 2009

(1) If a GmbH shareholder involuntarily withdraws from the company, the compensation claim of a remaining shareholder against him arising from a guarantee for the company's liabilities assumed jointly with the withdrawing shareholder shall cease to apply.

 

Exclusion of shareholders due to compulsory execution on their GmbH shares permissible

OLG Hamm 2008

1. the reduction of the participation quota as a result of a capital increase is not equivalent to a withdrawal as a shareholder.

2. resolutions on the redemption of shares and the exclusion of shareholders have their own significance.

(3) The power to exclude a shareholder may be transferred to the shareholders' meeting by the articles of association.

 

Expulsion of a GmbH shareholder for misappropriation of company funds

OLG Frankfurt 2008

1. on the expulsion of a GmbH shareholder for misappropriation of the company's funds.

 

Redemption of a GmbH share - Loss on disposal - Dissolution of a GmbH - Effectiveness and effects of the declaration of redemption

BFH 2008

The redemption of a GmbH share can lead to a loss within the meaning of § 17 EStG at the earliest when it becomes effective under civil law.

 

Contestation, community of heirs

OLG Nuremberg 2008

 

ultra petita - principle, compensation for value, execution, shares, transfer, acquiescence

KG 2008

 

Binding effect of legally binding determination of the squeeze-out and the withdrawal of shares

BGH 2008

If, in a preliminary action between the GmbH and shareholders in respect of whom the exclusion and redemption of their shares was resolved in accordance with the articles of association, it has been legally established that the latter are still shareholders until payment of the redemption fee, then, due to the binding effect of this judgment, an earlier loss of the shareholder status cannot be established in a subsequent action in deviation therefrom, irrespective of the occurrence of this condition.

 

Compulsory redemption, shares

OLG Frankfurt a. M. 2008

 

Business share, objective reason

OLG Frankfurt a. M. 2008

 

Business share, objective reason

OLG Frankfurt a. M. 2008

 

Cartel agreement, ancillary restraint, non-competition clause

Düsseldorf Higher Regional Court 2007

 

Publishing business, daily newspaper, shareholders' meeting, redemption, shareholding

Düsseldorf Higher Regional Court 2007

 

Share, insolvency

Düsseldorf Higher Regional Court 2007

 

Debtor, company shares, payment claim

LG Berlin 2007

 

Non-competition clause, shareholder position, injunctive relief, leaving before payment of compensation, right to information

LG Potsdam 2007

 

Cartel agreement, ancillary restraint, non-competition clause

Düsseldorf Higher Regional Court 2007

 

Debtor, company shares, payment claim

LG Berlin 2007

 

Share, insolvency

Düsseldorf Higher Regional Court 2007

 

Shareholder, exclusion

Düsseldorf Higher Regional Court 2006

 

Recovery order only effective on condition of admissible payment

Düsseldorf Higher Regional Court 2006

1. in order to safeguard the shareholder concerned, the redemption resolution is subject to the suspensive legal condition that the compensation owed is paid out without violating the share capital maintenance requirement.

(2) Until the settlement has been received in full, the share in the company and with it the shareholder position with all rights and obligations shall continue to exist. If it is certain that the compensation cannot be paid without affecting the share capital, the condition precedent has failed and the withdrawal has no effect.

 

Forced recovery and market value of the company

BGH 2006

 

Gross negligence despite expected AdV

FG Cologne 2006

The mere indication by the tax advisor that the tax office would grant a suspension of enforcement of a tax assessment and would not enforce it in the meantime does not eliminate the gross negligence of the managing director for the non-payment of the tax on the due date.

 

Shareholder, exclusion

Düsseldorf Higher Regional Court 2006

 

Recovery order only effective on condition of admissible payment

Düsseldorf Higher Regional Court 2006

1. in order to safeguard the shareholder concerned, the redemption resolution is subject to the suspensive legal condition that the compensation owed is paid out without violating the share capital maintenance requirement.

(2) Until the settlement has been received in full, the share in the company and with it the shareholder position with all rights and obligations shall continue to exist. If it is certain that the compensation cannot be paid without affecting the share capital, the condition precedent has failed and the withdrawal has no effect.

 

Gross negligence despite expected AdV

FG Cologne 2006

The mere indication by the tax advisor that the tax office would grant a suspension of enforcement of a tax assessment and would not enforce it in the meantime does not eliminate the gross negligence of the managing director for the non-payment of the tax on the due date.

 

Registration, amendment of the articles of association, shareholders, redemption

KG 2005

 

Action by the shareholder entitled to resign against the company for the redemption of his shareholding

OLG Koblenz 2005

 

GmbH: Slightest misconduct of a shareholder as factual reason for a share redemption; immorality of a redemption clause in the articles of association; serious infringement in the case of failure to pass on work wages to the subcontractors carrying out the construction work; use of construction money in breach of duty as justification; group of persons protected by the statutory construction claim security

OLG Brandenburg 2005

 

On the effectiveness of the redemption of shares in a company as a defence in the attachment of that share.

OLG Koblenz 2005

 

Exclusion of a co-shareholder from a GmbH

BGH 2005

 

Registration, amendment of the articles of association, shareholders, redemption

KG 2005

 

GmbH: Slightest misconduct of a shareholder as factual reason for a share redemption; immorality of a redemption clause in the articles of association; serious infringement in the case of failure to pass on work wages to the subcontractors carrying out the construction work; use of construction money in breach of duty as justification; group of persons protected by the statutory construction claim security

OLG Brandenburg 2005

 

Action by the shareholder entitled to resign against the company for the redemption of his shareholding

OLG Koblenz 2005

 

On the effectiveness of the redemption of shares in a company as a defence in the attachment of that share.

OLG Koblenz 2005

 

Severance payment claim not a payment claim within the meaning of § 288 II BGB

OLG Karlsruhe 2005

A claim for payment within the meaning of § 288 II BGB is a monetary claim arising from a mutual contract which represents the consideration for a service or delivery provided or to be provided by the creditor. The claim of a withdrawing shareholder for compensation does not fall under this.

 

Exclusion of a co-shareholder from a GmbH

BGH 2005

 

Severance payment claim, severance payment credit, shareholders' resolution, articles of association, damages

LG Koblenz 2004

 

Unconscionability, share

OLG Frankfurt 2004

 

Dispute over the redemption of a share

OLG Brandenburg 2004

The shareholder of a GmbH who opposes the redemption of his shares and who has not been informed of the reasons for the redemption, complies with the time limit for contestation if he states his lack of consent and submits the relevant documents to the files stating that the reasons stated in the invitation letter were not sufficient for a redemption. The decisive factor is that the direction of attack against a shareholders' resolution is specified within the contestation period; the substantiation in detail can take place later.

(2) If the articles of association of a GmbH provide that the contents of the minutes are to be regarded as approved by the individual shareholder if he does not object in writing to the management within one month of notification, the silence of the shareholder cannot have an acknowledgment function with regard to the substantive content of the recorded resolutions. Such a provision of the articles of association can only be interpreted to the effect that the proceedings of the shareholders' meeting as recorded in the minutes are to be regarded as correct.

(3) The refusal of a shareholder to provide a guarantee on behalf of the company in the absence of a crisis and where the memorandum and articles of association do not provide for an obligation to make additional contributions does not give the other shareholders good cause to compulsorily redeem his share.

 

Provisions for the redemption of shares.

FG Hesse 2004

In the case of the redemption of shares of the withdrawing shareholder, the compensation payment represents a repatriation of share capital or earned assets of the corporation, which may not reduce the annual result.

 

Shareholder, exclusion

OLG Karlsruhe 2003

On the prerequisites for the exclusion of a GmbH shareholder for important reasons in the case of a dual position as shareholder and managing director of another GmbH controlled by him in the same business area.

 

Share, confiscation

BGH 2003

 

Action for annulment, defective resolution, shareholder, exclusion

BGH 2003

 

Shareholder resolution, challenge, voting prohibition, shareholder, exclusion

BGH 2003

 

Forced Recovery Requirements:

BGH 2001

 

Value of the complaint of a defendant GmbH - Redemption of a share in the company

BGH 2001

ZPO §§ 3, 5, 69, 511 a para. 1

a) The value of the complaint of a defendant GmbH, which appeals against a cassatorial judgment with regard to a resolution on the redemption of a share, is determined by its interest in the effectiveness of that redemption resolution. The yardstick for the valuation is, in principle, the value of the share affected by the redemption.

b) If the defendant GmbH and a shareholder supporting it as an intervening party in the proceedings file independent appeals against a summary judgement issued in the proceedings for the annulment of a resolution or for the determination of nullity, no addition of value shall take place with regard to the appeal, in any case because of the uniform subject matter of the dispute and the uniform effects of the judgement.

 

Invalid provision of the articles of association regarding the redemption of a share - Cure

BGH 2000

AktG § 242 para. 2; GmbHG §§ 34 para. 3, 33 para. 2, 30 para. 1

a) The provision of Sec. 242 (2) AktG applies mutatis mutandis to void provisions of the original articles of association under both stock corporation and GmbH law.

b) The provision of a GmbH's articles of association according to which the redemption of a share is permissible in the event of its attachment for a consideration below the market value is null and void if the same or no compensation provision is not made for the comparable case of the exclusion of a shareholder for good cause.

BGH, Judgment of 19 June 2000 - II ZR 73/99 - OLG Hamm LG Bielefeld

 

Shareholder, request for dissolution, exclusion, resolution, action, dismissal, nullity, managing director

OLG Cologne 1999

 

GmbH: Date on which the recovery order takes effect

BGH 1997

The shareholder whose share has been withdrawn shall remain a member of the company until he has received the full compensation to which he is entitled.

 

Redemption, petition for a declaratory judgment, share, compulsory redemption, settlement amount

OLG Zweibrücken 1996

(1) The compulsory redemption of the share shall not become effective upon notification to the shareholder concerned, but only upon full payment of the compensation amount.

 

Redemption, petition for a declaratory judgment, share, compulsory redemption, settlement amount

OLG Zweibrücken 1996

(1) The compulsory redemption of the share shall not become effective upon notification to the shareholder concerned, but only upon full payment of the compensation amount.

 

GmbH: Forced confiscation due to competition infringement

 1993

If the articles of association of a GmbH provide for the compulsory redemption of the share of a shareholder who violates the prohibition of competition under the articles of association "to engage in competitive business for his own account or for the account of third parties", then the articles of association must be interpreted in such a way that the right to compulsory redemption does not also extend to such actions of the shareholder which, although they constitute breaches of fiduciary duty, are not to be classified as competitive activities for the company. In this case, the company is referred to the path of an action for exclusion.

 

GmbH: Exclusion by redemption of the business share

 1993

(1) If the acquirer of a GmbH share informs the company orally of the transfer of the share without being able to provide the proof required by the company, the acquirer is a shareholder but is not deemed to be such by the company.

(2) If, in such a case, the transferor is excluded from the company for good cause in the form of the redemption of the share, it is relevant whether there are grounds for this measure in his person.

(3) The acquirer is entitled, after proper registration, to challenge the exclusion of the transferor effected in the form of the redemption of the share by means of an action for rescission.

 

GmbH, KG: Exclusion of a shareholder due to the sub-participation granted to a competing company

 1992

(1) If a limited partner of a GmbH & Co. KG, who at the same time holds shares in the general partner GmbH, grants a competitor of the company a sub-participation in his partnership or business share, this alone does not constitute grounds for excluding the limited partner/shareholder from the KG and the GmbH.

This also applies if, according to the partnership agreements, business or limited partner shares cannot be disposed of freely, but only with the consent of the other partners.

(3) Disqualification for cause shall only be considered if the principal shareholder breaches his fiduciary duty, e.g. by serving the company's sub-participating competitor in a manner detrimental to the latter, exerting a harmful influence on the management, betraying business secrets or confidences or committing similar gross breaches of duty.

 

GmbH: Decisiveness of the determination of the net worth tax value for severance pay upon withdrawal

 1992

If the articles of association of a GmbH provide that the compensation of a withdrawn shareholder is to be assessed on the basis of the last net worth tax value determined by the tax office, then the relevant assessment is the assessment which values the share on the last reference date before the withdrawal of the shareholder; whether this assessment is already available at the time of the withdrawal is irrelevant.

 

BFH of 12.04.1978 II R 67/74

BFH 1978

If, after the redemption of a share, a new share was formed at a later point in time within the framework of the unchanged share capital in favour of the GmbH or a trustee bound by its instructions and sold for the account of the GmbH, the facts of § 2 no. 5 of the 1959 Corporation Tax Act were thereby realised. This applied under the conditions of § 5, para. 2 StAnpG even if the formation of the new share had been impermissible under company law.

 

BGH: Judgment of 28.04.1977 - II ZR 208/75

BGH 1977

On the claim for presentation of a withdrawn GmbH shareholder.

 

BFH of 17.03.1970 II 106/65

BFH 1970

The facts of § 2 No. 1 of the German Corporation Tax Act (KVStG) are not fulfilled if own shares of a GmbH are withdrawn without a capital reduction and the nominal amounts of the shares of the remaining shareholders are increased in accordance with their participation in such a way that the sum of these nominal amounts corresponds to the amount of the share capital.

 

GmbH: Date on which the recovery order takes effect

BGH

The shareholder whose share has been withdrawn shall remain a member of the company until he has received the full compensation to which he is entitled.

 

GmbH: Forced confiscation due to competition infringement

 

If the articles of association of a GmbH provide for the compulsory redemption of the share of a shareholder who violates the prohibition of competition under the articles of association "to engage in competitive business for his own account or for the account of third parties", then the articles of association must be interpreted in such a way that the right to compulsory redemption does not also extend to such actions of the shareholder which, although they constitute breaches of fiduciary duty, are not to be classified as competitive activities for the company. In this case, the company is referred to the path of an action for exclusion.

 

GmbH: Exclusion by redemption of the business share

 

(1) If the acquirer of a GmbH share informs the company orally of the transfer of the share without being able to provide the proof required by the company, the acquirer is a shareholder but is not deemed to be such by the company.

(2) If in such a case the transferor is excluded from the company for good cause in the form of the redemption of the share, it is relevant whether there are grounds for this measure in his person.

(3) The acquirer is entitled, after proper registration, to challenge the exclusion of the transferor effected in the form of the redemption of the share by means of an action for rescission.

 

GmbH, KG: Exclusion of a shareholder due to the sub-participation granted to a competing company

 

(1) If a limited partner of a GmbH & Co. KG, who at the same time holds shares in the general partner GmbH, grants a competitor of the company a sub-participation in his partnership or business share, this alone does not constitute grounds for excluding the limited partner/shareholder from the KG and the GmbH.

(2) This also applies if, according to the partnership agreements, business or limited partner shares cannot be disposed of freely, but only with the consent of the other partners.

(3) Disqualification for cause shall only be considered if the principal shareholder breaches his fiduciary duty, e.g. by serving the company's sub-participating competitor in a manner detrimental to the latter, exerting a harmful influence on the management, betraying business secrets or confidences or committing similar gross breaches of duty.

 

 

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