Companies & Businesses

Reasons

The questionnaires are available for the preparation and transmission of the data.

Further information can be found here.

In principle, online notarization is also permitted for many start-ups. You can find more information here: Online procedure in company law | Notar.de

We support founders in choosing the right legal form for their start-up, right through to entry in the commercial register. Together we draft the articles of association and prepare all the necessary documents. If you seek legal advice in advance – which is not uncommon – we are also available to coordinate with the legal advisor in order to prepare a swift and optimal formation and entry in the commercial register. Please contact us.

A notary is not a representative of a party, but an impartial advisor to the parties involved. It is therefore advisable to have the draft drawn up by all shareholders by a notary. Notaries can rely on their experience and the sensible use of templates or building blocks. From our many years of experience, also in the legal field, we know how certain clauses affect the later life of a company and where the strengths and weaknesses lie in terms of legal enforcement.

Company register (GbR)

The registration and recording of companies of all kinds is one of the core tasks of the notary. A company register for civil law companies was added on January 1, 2024.

A civil-law partnership whose partners all agree can be voluntarily entered in the company register of the court that has jurisdiction over its registered office.

Registrations in the company register can also be made online. You can find more information here: Online procedure in company law | Notar.de

However, there is a de facto obligation to register for companies that wish to acquire or sell rights that are themselves listed in a register. This is the case in particular with real estate or shares in registered companies. For land, this means that an entry is required for all disposals of a registered right (§ 47 Para. 2 GBO). Land charges, easements, usufructuary rights, reservations, objections, etc. are therefore also included.

The registration decision is a fundamental decision that must be supported by all shareholders.

A reference to the commercial law provisions on the registration of partnerships indicates that the registration must be submitted by all partners in a publicly certified form (Section 707b No. 2 BGB in conjunction with Section 12 (1) HGB).

When registering a GbR in the company register, § 707 para. 2 BGB must contain the following information:

1. Information on the company:
   • a) the name,
   • b) the registered office and
   • c) the address, in a Member State of the European Union;
2. Details of each shareholder:
   • a) if the shareholder is a natural person: their surname, first names, date of birth and place of residence;
   • b) if the shareholder is a legal entity or partnership with legal capacity: its company name or names, legal form, registered office and, where provided for by law, the competent register and register number;
3. Power of representation of the shareholders;
4. the assurance that the company is not already entered in the commercial or partnership register.

Upon registration, the company is obliged to use the designations “eingetragene Gesellschaft bürgerlichen Rechts” or “eGbR” as an addition to its name. If no natural person is liable as a shareholder in a registered company, the name must contain a designation that identifies the limitation of liability; §707a para. 2 BGB.

The law does not specify the exact wording of the addition, but the explanatory memorandum to the law contains a reference to the comparable provision in § 19 para. 2 HGB. If the eGbR consists of GmbHs, an addition such as “GmbH & Co.” eGbR would probably not be objectionable. The addition “eGbRmbH”, on the other hand, is considered inadmissible due to its potential to mislead.

Once the company has been registered, it can only be dissolved in order to be removed from the register. It can therefore not be deleted with the intention of continuing outside the register (Section 707a (4) BGB). There is also an obligation to report changes to certain facts (§ 707 para. 3, § 734 para. 3, § 736c para. 1, § 738). These are, for example, changes to the name, registered office, address or power of representation; also the withdrawal of a shareholder and the entry of a new shareholder as well as liquidation or continuation.

Further information from the Bundesnotarkammer can be found here: Act on the Modernization of Partnership Law (MoPeG) | Bundesnotarkammer (bnotk.de)

Change

We also support the companies after the start-up phase.

Amendments to the articles of association of a GmbH (§ 53 para. 2 sentence 1 GmbHG) must be notarized. This also includes capital measures such as capital increases, the creation of authorized capital, capital reductions and other capital measures. The sale and the obligation to sell GmbH shares must also be notarized (Section 15 (3) and (4) GmbHG). If the notary was involved in a change to the shares, he must, in accordance with § 40 Para. 2 GmbHG to draw up and certify a new list of shareholders.

Typical other fields in which notaries must be involved in the life of a GmbH are, for example: Branches, changes to the management (changes to the persons of the managing directors, the power of representation); change of shareholders and new business formation, company agreements of a GmbH, dissolution and liquidation of a GmbH, the continuation of a GmbH.

However, the redemption of shares and the division and merger of shares are not subject to mandatory notarization (§ 46 No. 4 GmbHG). The dissolution of the company is also not subject to notarization. Of course, these changes must be registered in the commercial register.

Profit and loss transfer and control agreements:

In the case of a GmbH, the resolution to approve an intercompany agreement must also be notarized at the dependent company in the same way as an amendment to the articles of association. According to the prevailing opinion, the associated waivers must be publicly notarized. Talk to us.

Public limited company

The formation of a stock corporation requires notarization (Section 23 (1) AktG), as do amendments to its articles of association (Section 179 (1) AktG) and capital measures (Sections 182, 192, 202, 207, 222, 229 AktG). In many cases, general meeting resolutions (Section 130 AktG) also require notarization; this applies in particular to general meeting resolutions that are intended to permit the transfer of company assets as a whole (Section 179a AktG), the conclusion of company agreements (Section 293 AktG), integration (Section 319 AktG) and the so-called squeeze-out (Section 327a AktG).

Start-ups/ financing and participation agreements:

We provide start-ups with the necessary experience and support. We are very familiar with the special requirements and challenges of the start-up scene, such as vesting agreements, holding structures, pool powers and special clauses in shareholder agreements. In the case of shareholders’ agreements, which are usually drawn up by legal advisors due to the existing conflicts of interest, you and your legal advisors can also contact us in advance of the notarization. We will be happy to help you draft contracts in a founder-friendly manner prior to notarization, avoid unnecessary cost traps and adapt the contracts to make them “notary-compatible” for upcoming and subsequent financing rounds.

We have many years of expertise – also from our legal advice – in all phases of a start-up: foundation, seed financing, convertible loans/SAFE agreements, A-D financing rounds and exits. We are familiar with all common forms of financing and market standards. Please contact us. Experience shows that good preliminary coordination with legal advisors helps to draft the deeds efficiently and avoid unnecessary additional notarization costs.

In the case of larger transactions, we can speed up the notarization process with other notaries from our firm and also support ambitious schedules, e.g. through parallel notarizations (e.g. of deeds of reference).

Our back office team is also experienced in transactions and provides support in the run-up to document exchange and document management.

We support you in obtaining the “right” powers of attorney, proof of existence and proof of representation:

You can find more information on financing here.

Sell/transfer

The sale and the obligation to sell GmbH shares must be notarized (Section 15 (3) and (4) GmbHG). You are welcome to use our questionnaire to prepare the drafting of the contract.

It is not uncommon for internal restructuring to take place before the actual transaction in order to separate or bundle the sold business units. If GmbH shares or real estate are transferred or transformation measures (mergers, demergers, changes of legal form) become necessary, notarial involvement is required. This also applies to measures under group law that become necessary in the sold structure, e.g. if control or profit transfer agreements are amended or canceled.

Please contact us in good time.

Legal and tax advisors are essential for large-scale company acquisitions due to the conflicting interests.

Notaries are usually blessed with a large number of assets at very short notice. Involving the notary at an early stage not only helps to shorten the notarization time, but the notary can also give advice on where the notarization costs can be reduced through minimally different arrangements. Feel free to contact us even if the contracts are still a long way from being finalized. The notary must work through the contracts drafted by legal advisors and decide which annexes must be read out and which are only for evidence purposes or are subject to simplified notarization. The notary can discuss with the parties involved whether attachments can (and may) be outsourced, e.g. to a reference deed, or which notarization procedures are suitable (e.g. factual records (§§ 36 ff BeurkG)) to shorten the actual notarization time.

The sooner notaries are involved, the better they can provide support.

Conversions

We provide support in all transformation processes, such as mergers, demergers, asset transfers and changes of legal form. Of course, we can also be contacted about cross-border (chain) mergers.

Not only mergers with companies from other European countries are possible. The accretion model can also be used to realize mergers outside of transformation law via an intermediate step. For example, a German GmbH with a US parent company (e.g. Corp. or LLC) can be merged with the parent company by the GmbH first changing its legal form to a GmbH & Co KG. The US parent company is then the limited partner, the personally liable partner (general partner) is a newly formed GmbH or UG (haftungsbeschränkt). If the general partner later withdraws from the GmbH & Co KG, the existing assets of the German company accrue directly to the sole remaining partner, i.e. the US company. The GmbH & Co KG ceases to exist without being wound up.