Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/4.3.5.4.2:4.3.5.4.2 Change of the objects clause

Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/4.3.5.4.2

4.3.5.4.2 Change of the objects clause

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

Another example of an important reason involves the significant change of the objects clause (Unternehmensgegenstand). Similar to an increase of the issued capital, the change of the objects clause requires a resolution adopted by a three-quarters majority of the votes cast in the general meeting. A shareholder with less than one quarter of the shares can therefore be confronted with a change of the object clause, to which he does not consent. This change can be seen as a fundamental change of the conditions on the basis of which he has invested in the company. Under these circumstances, the outvoted shareholder obtains a right to exit the company.

In this respect, in German legal literature,1 reference is made to a case involving a limited partnership of which the only limited partner is a GmbH, also indicated as the GmbH & Co KG (Kommanditgesellschaft).2 The objects of this limited partnership, as laid down in its articles of association, were to construct, to obtain, to run and to take care of health resorts in Bad S. At a certain point, it became clear that the objects of the limited partnership could not be attained. Subsequently, a resolution was adopted by the partners to broaden the scope of the objects clause. The resolution was adopted in accordance with the articles of association, which required a three-quarters majority of the votes of the partners. The Supreme Court held that the limited partner, who did not vote in favour of the resolution, was entitled to exit the limited partnership. The Court considered that the structure of the partnership had fundamentally changed and the partner did not consent to this change. It was not considered to be relevant that the fundamental change as such could be profitable for the GmbH & Co KG.

In a comparable way, the significant extension of business activities of a GmbH with risky activities, which are not anticipated by the articles of association, may lead to application of the oppression remedy.3

Deze functie is alleen te gebruiken als je bent ingelogd.