Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/4.3.5.4.1:4.3.5.4.1 Increase of the share capital

Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/4.3.5.4.1

4.3.5.4.1 Increase of the share capital

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.

An important reason to exit the company is present if the general meeting of shareholders resolves to increase the share capital of the company, pursuant to § 55 GmbHG and the risk of deficiency liability is increased. Only a shareholder who does not consent to the increase is entitled to this exit right.

Each increase of the share capital requires the amendment of the articles of association.1 The amendment of the articles of association requires a resolution adopted by a three-quarters majority of the votes cast in the general meeting. This majority is prescribed by § 53II1 GmbHG.

The increase of the share capital of the company entails a risk of liability for shareholders, by virtue of § 24 GmbHG, indicated as deficiency liability.2 As follows from this provision, if one of the shareholders fails to pay up his contribution to the share capital of the company and the remaining amount cannot be recovered by means of a public sale of his shares, the co-shareholders are liable for the missing amount in proportion to their shareholdings.

This deficiency liability applies to each shareholder, regardless of whether he consented to the increase of share capital or not. Whereas the shareholder cannot be expected to take up this risk of liability, an important reason is present that justifies the exit right. This exit right can only be effectuated immediately after the decision is adopted.3

Deze functie is alleen te gebruiken als je bent ingelogd.