Can I leave a GmbH as a shareholder?

It is possible to sell your own shares. However, as a rule, these cannot simply be sold to any third party. The reason for this is that the shares are normally restricted and can therefore only be sold with the consent of the co-shareholders. If they assert legitimate interests against a third party as the buyer, the planned sale cannot take place.

In most cases, the shareholders' agreement provides for a right of first refusal for the co-shareholders. The shareholder wishing to sell must then first approach his business partners and offer them his shares for sale. Only if they refuse to buy will third parties be considered as buyers.

The decisive factor is usually what is regulated in the articles of association. You should therefore seek advice from an expert lawyer.

The legislator has not provided for a right of termination for a shareholder wishing to withdraw from the shareholders' agreement in the GmbH Act. It therefore depends on whether and under what conditions a contractual right of termination has been agreed between the parties in the shareholders' agreement.

If there is a contractual right of termination, in most cases the liquidation is structured in such a way that the terminating shareholder leaves the GmbH in return for payment of a settlement and his shares are either distributed between the remaining shareholders or transferred to a third party.

Yes, case law generally recognizes an unwritten right of withdrawal under strict conditions. There must be an urgent reason that makes it unreasonable for the shareholder to continue the partnership agreement.

Whether there is good cause always depends on the individual case. In addition, milder options for withdrawing from the contract, such as termination or sale, must be excluded or a reference to these must also be unreasonable.

This right of withdrawal is therefore similar to an extraordinary right of termination without notice. The resignation must be declared to the GmbH. The GmbH then has the choice of either paying the withdrawing shareholder a settlement and withdrawing their shares in accordance with the capital maintenance principle or demanding that the company shares be transferred to the GmbH or the remaining co-shareholders or third parties.

Liquidation is possible, but certain conditions must be met. For example, a liquidation resolution requires a three-quarter majority of the votes at the shareholders' meeting.

If this majority is achieved, the existing liabilities of the GmbH are settled. The remaining assets of the GmbH are then sold. After a blocking period of one year, the remaining assets are divided among the shareholders and the GmbH is deleted from the commercial register.

If the majority required for a liquidation resolution is not reached at the shareholders' meeting, shareholders who hold at least 10% of the GmbH can file an action for dissolution with the court.

However, this can only be used as a last resort if all other options have been ruled out. High demands are placed on the action for dissolution. For example, it must either be impossible to achieve the purpose of the company or there must be other important reasons for dissolving the GmbH that are based on the circumstances of the company. An example of such an important reason is the mutual blockade of two influential co-shareholders, as a result of which the continuation of the GmbH can no longer be realized.

If the action for dissolution is successful, the GmbH is dissolved by a court ruling.

The office of managing director and the status of shareholder exist independently of each other. In principle, the office of managing director can be resigned at any time. However, it should be noted that contractual obligations may exist. In particular, the employment contract may result in notice periods that must be observed. If the GmbH suffers damage as a result of a premature resignation from office, the managing director is liable for damages.

The resignation from office must be declared to the other shareholders of the GmbH. According to case law, it is sufficient if the declaration is made to one of the shareholders, but it is highly recommended that the declaration is made to all shareholders.

It is not sufficient for the managing partner to declare his resignation only to himself. Although he is also a shareholder, this declaration would not leave his own sphere and would therefore not reach the other shareholders. Accordingly, this would also give rise to a liability for damages.

In addition to the resignation from office, the shareholder agreement can also be terminated under the conditions described above.