Various participation can be found within a company: there is the managing director, the shareholder , a supervisory board and much more. If you are a shareholder in a GmbH or another form of company, you have certain rights and obligations, which we would like to explain to you in more detail below.
What is a shareholder?
As a shareholder, you own shares in a company and thus participate in the profits. For this, you have to acquire the shares with the use of a capital (whether tangible or monetary). Depending on whether you are involved as a silent shareholder or managing shareholder, you also have a corresponding influence on important company decisions. The exact rights and obligations are set out in the so-called shareholder agreement. Nowadays, the term shareholder is also used in English – the shareholder.
What types of shareholders should you know?
According to digopaul, shareholders can be natural or legal persons . So it is possible for a complete GmbH to become a shareholder in a KG. If this is the case, the company name of the KG changes to Mischform GmbH & Co. KG . It often happens that entire municipalities (so-called local authorities) are part of a public company.
If we stick to a systematic classification of different types of shareholders , a distinction can be made between the following forms.
- Active shareholder: If you take on the rights and obligations of an active shareholder, you must comply with the duty of loyalty to the company. You also have the right to represent your company externally, have the right to vote in important decisions and are subject to the general non-competition clause. Further rights to which you are entitled as an active shareholder are the right to control, the right to grant power of attorney and liability to the company’s liabilities.
- Silent shareholder: As a silent shareholder or shareholder, you are not authorized to represent the company. So you are not allowed to do business on behalf of the company. To compensate for this, you are exempt from liability, but still participate in the profit and loss.
- Managing shareholder: If the shareholder is active as a managing director, in addition to the rights and obligations of the active shareholder, he also has the function of making important decisions and tasks relating to the management of a company. He usually receives a normal manager’s salary and is also involved in the profit distribution at the end of the year.
No matter what type of shareholder you are, you can be removed from your position in the event of serious violations. In such a case your shares will be paid out to you. The decision to remove a shareholder is made at the so-called shareholders’ meeting . In addition, all important operational decisions on the strategic approach, the discussion of the current economic key figures and much more are discussed here.
Apart from the above-mentioned division, which is based on the function of a shareholder within the company, a division into the type of company can also be made:
- Partners of shareholderships ( OHG , KG, GbR ): In a shareholdership, the active shareholders are liable with the capital employed as well as with the entire private assets. So if the company threatens to go bankrupt, you may lose everything. The silent shareholder is an exception. He is only liable with the financial deposits.
- Shareholders in corporations ( UG , AG , GmbH, Limited ): As a shareholder in a GmbH, UG, AG or Limited, you are only liable for the amount of your shares. Your financial risk in the event of an impending bankruptcy of the company is therefore significantly reduced.
What rights and obligations does a shareholder have?
Above all, a shareholder has an obligation to contribute and a duty of loyalty to his company. On the other hand, he also enjoys advantages such as property rights , information rights , information and administrative rights.
Probably the most important right for you are property rights. A profit distribution takes place at the end of the year . Here you receive part of the profit of the GmbH depending on the shares you own in the company.
Administrative law is just as important . For example, if you own 30% of the shares in the GmbH, your vote counts with 30% in important decisions . This usually involves decisions such as opening a branch, changing production or the like. If you hold more than 50% of a company, you are a so-called controlling shareholder.
According to Section 51 a GmbHG, you can also request inspection of the documents at any time. This is not only about the balance sheets, but also about any correspondence with suppliers and customers. This is called the right to information and information.
What tasks do you have to do as a shareholder?
Compliance with your duties is important for the company itself. As already mentioned, it is above all and the duty of deposit and the duty of loyalty . But also the observation and monitoring, the observance of the social contract and the establishment of the company policy belong to important tasks.
|Loyalty Duty||As a shareholder, you are obliged to be loyal to your company. This includes, above all, the joint pursuit of the goals and the promotion of the corporate purpose. The prohibition of competition as described in Section 112 of the German Commercial Code (HGB ) is also prohibited.|
|Monitoring||You have a relatively large amount of leeway in the task of monitoring. For example, the articles of association can regulate who takes over which control within the company.|
|Obligation to make a deposit||The obligation to make a contribution is required by law for every shareholder. Accordingly, you have to make certain capital contributions, for example in order to have the necessary start-up capital to set up a GmbH.|
|Gatherings||A meeting must be held at least once a year in which all shareholders participate. Here it is discussed which goals are being pursued, which changes have to be made or whether, for example, a shareholder is excluded due to a gross breach of contract.|
Where are these tasks recorded?
Which tasks Shareholders who will rule in the social contract held. Here, the individual obligations within a company are assigned to the corresponding shareholders by name. In addition, general provisions regarding tasks are described in the statutes. The most important statutes include the GmbHG as far as the HGB and the BGB.
What is the difference between a shareholder and a managing director
For the most part, a simple shareholder remains in the background. He holds certain shares in the company and is therefore entitled to the profit distribution .
What is a managing shareholder?
A managing shareholder not only has all the rights and obligations of a normal shareholder. You must also represent, run, and do business for the company. In contrast to a simple shareholder, the managing director receives social security and a fixed salary. In the event of bankruptcy , he may be liable with his private assets.
Is a shareholder entitled to a profit?
Yes, as a shareholder you are in principle entitled to part of the profit. This part is calculated based on your percentage of the company. So if you have 25% of a GmbH, you will receive 25% of the profit distribution at the end of the year . The distribution of profits of a GmbH is detailed in § 29 GmbH Law. The share capital must not be affected.
The exception is the share of a managing shareholder. In addition to the annual profit distribution, he receives a fixed salary to reward his work as a manager.
What happens when a company is dissolved?
First of all, a resolution to dissolve must be drawn up by the shareholders. A majority of three quarters is required for this resolution to be valid. This limit is also called the blocking minority of the GmbH. According to § 65 GmbHG , a notarized document must be written in order to be able to make a corresponding entry in the commercial register.
After the so-called blocking year has expired, a distribution of assets may take place. If there are still open invoices, these must be paid using the share capital. Only then will the amount corresponding to the shares be paid out.
When do you have to be liable as a shareholder?
Only shareholders in shareholderships are liable for both their capital employed and their private assets . This is particularly important when the company has large debts to a supplier or is otherwise experiencing financial problems.
If you are a shareholder in a corporation, you are usually only liable with the capital invested. As a capital shareholder, you can only be called upon to assume liability in special cases. This happens, for example, when corporate and private assets are mixed. So-called under-capitalization can also lead to personal liability.
Tip: Avoid transactions that should be carried out before entry in the commercial register. During this phase there is no “limited liability” and you can be held accountable with your full private assets.
Further possibilities, despite belonging to a corporation, are personal liability in the event of non-payment of the capital contributions, in the form of a liability to destroy the existence of the company , during differential liability or in the event of unlawful payments to the shareholders.
In addition, one of the managing director’s duties is to protect a company from bankruptcy. If this does not succeed, you, as the managing shareholder, have to be liable with your private assets. The prerequisite for this is that you are complicit in the bankruptcy or have even provoked it.
With the formation of a company you enjoy some advantages in terms of competitiveness and limitation of liability . If you want to avoid private liability, you cannot avoid a corporation. A GmbH, a KG and other forms of company are entered in the commercial register as well as in the trade register. As a shareholder, you participate in the profits. As a managing shareholder, you will also take on the tasks of managing the company.
Frequently asked questions about shareholders
What do shareholders do?
Shareholders function primarily as a company’s capital provider. In some cases, they can also act as directors. In addition, they are often involved in corporate issues and are entitled to a profit distribution from a GmbH at the end of the year.
What is a shareholder in a GmbH?
A shareholder in a GmbH has acquired shares in the company through the contribution of financial resources. He participates in the profit and loss of the business. Since it is a corporation, both the active and the silent shareholder of a GmbH are only liable with the assets invested.
Is a shareholder an entrepreneur?
A shareholder is not a company. He only owns shares in a company. The size of the shares in the company depends on how much money the shareholder or shareholder pays in.
Is a shareholder a managing director?
A shareholder can also be active in the management at the same time . For this it is important that he is appointed as a managing shareholder .