Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/4.4.9:4.4.9 Additional contribution obligations (Nachschusspflicht)

Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/4.4.9

4.4.9 Additional contribution obligations (Nachschusspflicht)

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.

As appears from § 26 I GmbHG, the articles of association may stipulate that a shareholder is obliged to make additional contributions (Nachschüsse) to the company in addition to payment of the nominal value of the shares. A shareholder has to fulfil this additional contribution in proportion to his stake in the company.1 The articles of association may but do not have to limit the additional contribution obligations to a certain maximum.2 In practice, there are very few companies that expose their shareholders to additional contribution obligations.3

The German legislator acknowledged that a shareholder may encounter difficulties in the situation that the articles of association do not limit the additional contribution obligations to a certain amount. Only in this situation, the shareholder is entitled to an appraisal right, known in this context as Abandon. This appraisal right is found in § 27 I GmbHG. In order to qualify for the appraisal right, the shareholder must have paid the nominal value of his shares in full. Moreover, the shareholder has to offer his shares to the company within one month after the company has called up the additional contribution.

The appraisal right also has its mirror image. Pursuant to the same § 27 I GmbHG, the company may deern the shares as offered if after having called up the additional contribution, the shareholder neither pays up his obligation nor offers his shares. In order to qualify, the company has to notice the shareholder by means of a registered letter (eingeschriebener Brief).

Subsequently, the company must sell the shares by way of a public auction within one month after the offer.4 The shareholder is not in a favourable position. He is only entitled to the surplus after payment of the costs of a public sale and payment of the additional contribution. In the situation that the shares cannot be sold by way of a public auction, the shares will pass to the company.5 The company is entitled to sell the shares in its own name.

Deze functie is alleen te gebruiken als je bent ingelogd.