General
A capital increase in a GmbH requires a resolution of the shareholders and an amendment to the articles of association in accordance with §§ 55 ff. and § 53 para. 1 and 2 GmbHG. The resolution must clearly specify the amount of the increase.
Amendment to articles of association GmbH/UG
It is also permissible to specify a maximum or minimum amount with a fixed end date for the acquisition of the new shares. A full payment of the previous share capital is not required for a GmbH. The increase amount does not have to be paid in full; it is sufficient that at least one quarter and a total of half of each new share must be paid in.
Underpayments on one deposit cannot be offset by overpayments on others. The situation is different for the UG (haftungsbeschränkt), the registration of the increase is required pursuant to § 5a para. 2 sentence 1 GmbHG is only permissible once the increased share capital has been paid in full. If a capital increase to at least EUR 25,000 is resolved, the restrictions for the UG (obligation to pay in full and the prohibition of contributions in kind) no longer apply.
In principle, online notarization is also permitted for unanimous capital increases. You can find more information here: Online procedure in company law | Notar.de
The capital increase is carried out by acquiring new shares. The takeover declaration must be notarized or publicly certified (Section 55 (1) GmbHG). In the case of underage shareholders, approval from the family court is required.
The application for entry in the commercial register is made by all managing directors. The application must emphasize the amended content of the articles of association and include a corresponding assurance pursuant to § 57 para. 2 sentence 1 GmbHG.
Documents for the application:
The following documents must be enclosed for registration in accordance with § 57 GmbHG:
- A notarized copy of the resolution on the capital increase
- Notarized takeover declarations
- A list of the new shareholders in accordance with § 57 para. 3 No. 2 GmbHG, which is signed by all managing directors.
- The new wording of the articles of association, with notarial certificate
- A current list of shareholders drawn up by a notary in accordance with § 40 para. 2 GmbHG, which takes into account the new shares that arise with the registration of the capital increase and highlights them accordingly in the change column. However, this will only be submitted with effect from the registration of the capital increase.
Takeover declarations and powers of attorney
If a takeover declaration is submitted by a legally authorized representative, as is customary in financing rounds, the power of attorney must at least be notarized. The power of representation of persons in partnerships or legal entities is, similar to the formation of a GmbH, to be verified by a certified extract from the register or a notarial certificate in accordance with § 21 Para. 1 BNotO.
Proof of existence and representation
In the case of foreign companies, the legal capacity of the company and the power of representation of the persons acting on its behalf must be proven in officially certified form in accordance with the law applicable to the company (cf. § 2 para. 2 GmbHG (or analogously for capital increases), § 23 para. 1 sentence 2 AktG). The requirements for proof are based on German law. In the case of commercial registers that are comparable with the domestic commercial register, we can obtain this evidence and issue notarial certificates (in accordance with § 21 BNotO).
If some foreign shareholders are involved, it can be challenging to provide the necessary proof of existence and representation (as well as a sufficiently notarized power of attorney). You are welcome to involve us. We provide support in obtaining templates and information and can provide tried and tested templates where necessary.