1. Definition, terminology and types of capital increase
A capital increase is a measure by which a GmbH increases its equity.
A capital increase can be carried out by injecting funds from outside (so-called effective capital increase) or by transferring funds already available to the company into equity (so-called nominal capital increase).
The actual capital increase can be carried out with cash (cash capital contribution) or monetary assets (cash contribution), see §§ 55 et seq. GmbHG.
In the case of a nominal capital increase, the company’s own funds, namely capital or revenue reserves, are transferred to specially protected share capital, see Section 57d (1) GmbHG.
A capital increase in a GmbH can be sought for various reasons. These range from the expansion of the company to strengthening capital during the crisis period (possibly even to eliminate insolvency and/or overindebtedness).
2. Implementation of a capital increase in a GmbH
In order to avoid subsequent complications and legal recognition, a capital increase must be carried out formally and materially in a legally secure manner.
a) Capital increase resolution and admission resolution
An intended capital increase must be formally approved by the shareholders’ meeting. The capital increase resolution requires a 3/4 majority (cf. § 56 GmbHG).
If new shareholders join the GmbH and the capital is increased through admission, an approval resolution must also be passed.
b) Transfer agreement when joining the GmbH
If new shareholders are accepted into the GmbH as part of the capital increase, takeover agreements for the respective shareholders must be notarized (cf. Section 55 GmbHG).
c) Registration in the commercial register
Once all of the new capital has been incorporated into the GmbH, the capital increase must be registered with the commercial register by all managing directors (Section 78 GmbHG).
The capital increase will then be published in the commercial register via the registry court.
3. Dangers and problems with a capital increase
If the capital increase is not carried out correctly, the intended legal effect can be missed.
If, for example, formal requirements are not met, the legislator can declare the capital increase to be ineffective or it can be contested by other shareholders
This can have devastating consequences, especially during a crisis period if the capital increase was carried out with the aim of eliminating a reason for insolvency.
Tax problems and disputes with the tax authorities are also inevitable.
This article does not constitute concrete and individual legal advice, but only provides a rough initial overview of the very complex legal matter described. You can only obtain legal certainty for your specific case constellation through coordinated examination and advice from a competent lawyer.
I am happy to be at your disposal as a lawyer and specialist lawyer for a legal assessment and assessment of your case and represent your interests assertively and resolutely. of the company and the (co-)shareholders. I will also support you in planning and implementing a capital increase in your GmbH. Feel free to contact me by phone or write to me.
I advise nationwide on site or via zoom as a specialist lawyer in the areas of corporate law, tax law and insolvency law, especially in the cities and metropolitan areas around Stuttgart, Heilbronn, Karlsruhe, Freiburg, Ulm, Augsburg, Munich, Frankfurt, Wiesbaden, Saarbrücken, Kaiserslautern, Nuremberg, Saarbrücken, Düsseldorf, Cologne, Hanover, Kassel, Leipzig, Dresden Bremen, Hamburg and Berlin.
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