Capital Increase in the GmbH: Leeway and Duties of Care

Capital increases in GmbHs are common practice and frequently serve restructuring, corporate growth or the entry of new shareholders. They can be carried out either through new contributions in cash or in kind (ordinary capital increase) or through the conversion of reserves into share capital (capital increase from company funds or nominal capital increase). For implementation, the nominal amount of existing shares can be increased or new shares can be issued.

It is central that, in principle, all shareholders have the opportunity to maintain their shareholding ratio and to avoid dilution. What matters here is the unchanged overall shareholding of each shareholder – not necessarily the proportional adjustment of each individual share.

Particular attention is required where shares carry special rights such as multiple voting rights or veto rights. Without the consent of the shareholders concerned, these special rights (too) must not be diluted by the capital measure.

In addition, the commercial register scrutinises capital increases closely; incorrect assurances by the managing directors can have consequences under criminal law. Careful preparation is therefore essential.