The confiscation of the company share in a GmbH is one of the strongest means of deciding a shareholder dispute in your favour.
In the event of an escalating shareholder dispute, the final drastic measure can be the confiscation of the co-owner’s share in the company.
For this, however, the legal framework must first exist or be created.
1. The legal framework for the redemption of the company share of a GmbH shareholder
According to Section 34 (2) GmbHG, a share can only be confiscated against the will of a shareholder by shareholder resolution in the cases regulated by the articles of association.
This wording of the law is equivalent to a “cold expropriation” of the co-partner.
However, the mandatory prerequisite for this is that there is a corresponding regulation/legitimation for this in the articles of association.
If there is no provision in the articles of association, a “compulsory confiscation” is not possible. A resolution passed nonetheless would be null and void according to Section 241 No. 3 AktG. If possible, the basis for an amendment to the articles of association would (still) have to be created.
In addition, for a share redemption, the capital contribution to the company share to be redeemed must have been made by the shareholder (§ 19 Para. 2 GmbHG).
2. Procedure for redeeming company shares
a) Payment of the capital contribution
If the obligation to contribute to the share to be collected has not yet been met, the other shareholders can make the payment in order to create the conditions for a share collection.
b) Shareholder resolution
The shareholders’ meeting has to decide on the redemption of shares by way of a resolution.
The resolution is made according to Section 46 No. 4 GmbHG with a simple majority (Section 47 GmbHG).
The affected shareholder has no voting rights if the company share is withdrawn for “good cause”. In all other cases, the shareholder should be granted a voting right.
Upon formal notification to the beneficiaries, the resolution to withdraw becomes effective and irrevocable.
3. “Compensation” for confiscated company share
As compensation and “damages” for the confiscated company share, the affected shareholder is to be granted compensation in the amount of the full market value of his share.
More precise regulations and modifications can be included in the GmbH contract.
When paying a severance payment from the assets of the GmbH, it should be noted that the severance payment is made from untied assets in accordance with Section 34 (3) and Section 30 (1) GmbHG, i.e. the assets that exceed the amount of the capital contribution (observance of the principle of capital preservation).
4. Correction of the list of shareholders of the GmbH
The list of shareholders must be corrected immediately after the share redemption has been decided.
The new list of shareholders must be sent to the commercial register after the shareholders’ meeting.
The changes must also be reported to or filed with the transparency register.
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, the (co-)shareholders and the managing director. 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, including in the cities and metropolitan areas around Stuttgart, Heilbronn, Karlsruhe, Freiburg, Ulm, Augsburg, Munich, Frankfurt, Wiesbaden, Saarbrücken, Kaiserslautern, Bonn, Wuppertal, Duisburg, Nuremberg, Munster, Saarbrücken, Düsseldorf, Cologne, Dortmund, Hanover, Kassel, Leipzig, Dresden, Bremen, Hamburg and Berlin.
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