PART II COMPANY OWNER
RELATIONS BETWEEN THE COMPANY AND ITS MEMBERS Article 480
(Shareholding and its parts)
(1) A shareholding may belong to one or more persons. If it belongs to more than one person, these persons shall jointly exercise the rights and shall be jointly liable for the obligations deriving from the shareholding.
(2) The Company Members who hold the same shareholding may agree to hold it in equal or different shares.
(3) Legal acts by the company against the holders of the same shareholding shall be effective for all holders, even if such legal acts are only taken against one of them.
(4) Holders of the same shareholding may exercise their rights and meet their obligations through a joint representative.
Article 481
(Transfer of shareholding)
(1) Shareholdings may be subject to disposal and succession.
(2) If a Company Member acquires one or more additional shareholdings, all shareholdings shall remain independent.
(3) The disposal of a shareholding shall require a contract drawn up in the form of a notarial deed.
(4) Unless otherwise provided by the memorandum of association, the Company Members shall have priority over other persons in the purchase of a shareholding under equal conditions.
(5) A Company Member who intends to sell his shareholding shall notify the other Company Members of his intention and of the terms and conditions of the sale in writing, and shall invite them to notify him/her of their willingness to buy his shareholding within one month of receipt of the notification.
(6) If more than one member is prepared to buy the shareholding, all buyers shall become joint holders of the shareholding.
(7) The memorandum of association may determine that the disposal of a shareholding to persons other than Company Members shall require the consent of the majority or all Company Members and determine the conditions for the issue of such consent.
(8) If none of the Company Members is prepared to buy shareholding, and the Company Members have not given their consent to the sale of the shareholding to a person other than a Company Member, a Company Member may withdraw from the company.
Article 482
(Position of the transferor and acquirer of a shareholding)
(1) Only the person who reports and demonstrates the acquisition of a shareholding to the manager shall be deemed to be the acquirer of a shareholding.
(2) Legal acts performed by the company against the transferor of a shareholding or legal acts performed by the transferor of a shareholding against the company and which concern legal relations within the company shall take effect as actions against the acquirer of a shareholding or against the acquirer's actions.
(3) The transferor and the acquirer of a shareholding shall be jointly and severally liable to the company for liabilities of the company that matured prior to the notification of the transfer of the shareholding.
Article 483
(Disposal of a part of the shareholding)
(1) A Company Member may dispose of a part of his shareholding and thus create a new stand-alone shareholding.
(2) The value of the remaining shareholding and the value of the new shareholding may not be less than value specified in Article 475 of this Act.
(3) The provisions of paragraphs (3) to (7) of Article 481 of this Act shall apply, mutatis mutandis, to the disposal of a part of a shareholding.
(4) The division of a shareholding shall not be permitted except in the case of disposal, the division of the common property of spouses, or inheritance. The memorandum of association may prohibit the division of shareholdings.
Article 484
(Method of payment of capital contributions)
(1) The method of payment of capital contributions by the Company Members shall be determined by contract. Unless otherwise provided, they shall all pay in a proportionate part of their capital contributions in accordance with Article 475 of this Act.
(2) A Company Member may not be exempt from paying a capital contribution nor may he/she offset his claims against the company's request for payment of capital contributions.
(3) When the share capital is reduced, the Company Members may be exempt from paying in their capital contributions; however, up to a maximum amount that is proportionate to the reduction in the share capital.
Article 485 (Default interest)
A Company Member who fails to pay the required amount of capital contribution on time shall be liable to pay default interest.
Article 486
(Exclusion of a Company Member in arrears with payment)
(1) The company may send a written request to a member who is in arrears with payment of his capital contribution in whole or in part to honour his obligations within a time limit of no less than one month. The same written request shall simultaneously notify the Company Member that he/she will be excluded from the company in respect of the capital contribution to which the payment relates.
(2) If the time limit referred to in the preceding paragraph expires and the Company Member fails to comply with his obligation, the Company Member's shareholding and partial payments already made shall be transferred in full to the company with notification in writing to the Company Member.
(3) The Company Member's liability for payment shall continue even after the delay. This shall not preclude his liability for damages.
Article 487
(Liability of the late payer's predecessors)
(1) Direct predecessors of the excluded Company Members, which have been notified to the company, and all previous predecessors shall be liable for payment of the amount of the capital contribution that has remained unpaid by the excluded Company Members.
(2) Payment shall first be requested from a Company Member's direct predecessor. If the direct predecessor fails to make payment within one month of receipt of the request, payment may be requested from his predecessor.
(3) The period of limitation in respect of the late payer's predecessors shall commence on the date of notification of the transfer of the shareholding to the company in accordance with Article 482 of this Act.
(4) The late payer's predecessor shall acquire the excluded Company Member's shareholding on payment of the late payment amount.
Article 488
(Auction of shareholdings)
When the late payer's predecessors cannot be requested to settle the late payment amount, the company may sell the late payer's shareholding at a public auction. A different method of selling of shareholdings shall only be possible with the consent of the excluded Company Member.
Article 489
(The Company Members' liability for payment)
If a capital contribution is not paid by the persons liable for payment, or if it is not paid though the sale of a capital contribution, the other Company Members shall pay in their capital contributions in proportion to the amount of their shareholdings. If it is impossible to request payment from some of the Company Members, the liability of the other Company Members shall increase in the same proportion.
Article 490 (Cogent provisions)
A company may not exempt a member from his liabilities referred to in Articles 486 to 489 of this Act under the provisions of the memorandum of association of by decision.
Article 491
(Subsequent payments)
(1) The memorandum of association may determine that the Company Members shall be obliged to make subsequent payments in addition to their capital contributions. Subsequent payments can be in cash or non-cash forms. The provisions of paragraph (3) of Article 475 of this Act shall apply, mutatis mutandis, to subsequent non-cash payments. The memorandum of association may determine that the Company Members adopt a resolution on subsequent payments. This resolution shall be adopted unanimously.
(2) Subsequent payments by the Company Members shall be in proportion to their shareholdings, and the memorandum of association may determine their maximum amount.
(3) Subsequent payments shall not be used to increase the share capital, capital contributions or shareholdings.
Article 492
(Delay in subsequent payment)
(1) Unless otherwise provided by the memorandum of association in respect of a Company Member's failure to comply with his subsequent payment obligation, the provisions of Articles 485 to 489 of this Act shall apply, mutatis mutandis, to the delay in subsequent payment.
(2) The memorandum of association may provide that subsequent payments be required before capital contributions have been paid in full.
Article 493
(Obligations of the company towards its members)
(1) The memorandum of association may provide that the company shall be obliged to give, perform, permit or relinquish something in favour of one or more of its members.
(2) The company's obligation referred to in the preceding paragraph shall not be contrary to the provisions of Articles 486 to 489 and Article 495 of this Act.
Article 494
(Appropriation of distributable profit)
(1) The Company Members shall be entitled to a share of distributable profits as determined in the annual balance sheet unless, otherwise provided by the memorandum of association.
(2) The profits shall be distributed in proportion to the amount of shareholdings unless otherwise provided by the memorandum of association.
Article 495
(Maintenance of the share capital)
(1) The assets required for the maintenance of the share capital and tied-up reserves shall not be paid to the Company Members.
(2) Subsequent payments that do not serve to cover the share capital in the event of a loss may be refunded to the Company Members. No refund shall be made until after three months from the date on which the resolution on the refund is published in the prescribed manner. In the case of subsequent payments made prior to the payment of the capital contributions referred to in paragraph (2) of Article 492 of this Act in full, any refund of subsequent payments before the full payment of capital contributions shall be null and void.
Refunded subsequent payments shall be considered not to have been made.
Article 496
(Refund of prohibited payments)
(1) Payments made in contravention of the preceding Article shall be refunded to the company.
(2) Where the recipient acted in good faith, a refund may only be claimed if it is essential for meeting the company's liabilities towards its creditors.
(3) If no refund can be claimed from the recipient, the other Company Members shall guarantee the amount to be refunded and required in order to meet the company's liabilities in proportion to their respective shareholdings. The amounts that cannot be claimed from a particular Company Member shall be divided among the other Company Members in proportion to their respective shareholdings. If ineligible payments are also made by the managers, the managers shall be liable in the same way as the Company Member with the largest shareholding.
(4) Persons obliged to make a payment under the preceding paragraphs may not be exempted from their obligation to pay.
(5) The period of limitation in respect of claims for refund shall commence on the date of ineligible payment.
Article 497
(Repayment of profits)
Under no circumstances shall the Company Members be liable to repay the sums they received in good faith as a share in the profits, except in the case referred to in paragraph (1) of the preceding Article.
Article 498
(Loans to the company instead of own capital)
(1) A member who granted a loan to the company instead providing it with his own capital, acting with due care and diligence, may not pursue a claim against the company for repayment of the loan in bankruptcy or compulsory settlement proceedings. Such a loan shall be deemed to form a part of the company's assets in bankruptcy or compulsory settlement proceedings.
(2) A third party who, during the period the Company Members acting with due diligence and care granted the company a loan instead of providing it with their own capital, and who was given collateral by a Company Member for the repayment of the loan, or if a Company Member undertook to stand as a guarantor, may only claim payment in bankruptcy or compulsory settlement proceedings for the difference that this person has not or would have not received for the collateral or the guarantee.
(3) The provisions of this Article shall also apply to other legal acts by a Company Member or a third party, which are financially equivalent to the granting of a loan.
(4) A loan to the company instead of own capital shall not be deemed a third party's failure to exercise its right to request collateral or its right to terminate the contract and have the loan repaid.
Article 499
(Repayment of loan prior to the commencement of bankruptcy or compulsory settlement proceedings)
(1) If, in the cases referred to in the preceding Article, a company repays a loan in the year prior to the commencement of bankruptcy or compulsory settlement proceedings, the Company Member who granted the loan, provided insurance, or stood as guarantor shall compensate the company for the repaid loan amount. The Company Member shall only be liable up to the loan amount or to the amount for which the Company Member provided the guarantee or up to the value of the collateral on the repayment of the loan. The member shall be free from this obligation if he/she makes the items given as collateral to a creditor freely available to the company for repayment.
(2) The provisions of the preceding paragraph shall also apply to other legal acts that are financially equivalent to the granting of a loan.
Article 500 (Own shares)
(1) A company may not acquire or receive in pledge its own shares for which contributions have not been paid in full.
(2) A company may acquire for consideration its own shares for which contributions are fully paid in, but may not make payments to acquire such own shares until it has created reserves for its own shares in accordance with paragraph (5) of Article 64 of this Act. The
provisions of the preceding sentence shall also apply, mutatis mutandis, regarding the pledging of own shares.
(3) The provisions of Article 496 of this Act shall apply, mutatis mutandis, regarding payments made in contravention of paragraph (2) of this Article.
(4) A company may not acquire all shares.
Article 501
(Exclusion and withdrawal of a Company Member)
The memorandum of association may determine that a Company Member may withdraw or be excluded from the company and lay down the conditions, the procedure and the consequences of withdrawal or exclusion. The provision of paragraph (3) of Article 506 of this Act shall not apply if the decision to exclude a Company Member is made by the general meeting in accordance with the provisions of the memorandum of association.
(2) Notwithstanding the preceding paragraph, a Company Member may take legal action to exercise his right to withdraw from the company if good reasons exist for doing so, particularly when the other Company Members or the manager cause damage to him, when the company or the Company Members hinder or prevent the exercise of the Company Member's right to withdraw, when the Company Member is prevented from exercising the rights he/she enjoys according to the law or according to the memorandum of association, or when the general meeting or the managers impose disproportionate burdens on him.
(3) Notwithstanding paragraph (1) of this Article, any Company Member may take legal action to exclude another Company Member from the company if good reasons exist for doing so, particularly when the other Company Member is causing damage to the company or other Company Members, when he/she acts contrary to the resolutions of the general meeting, when he/she fails to participate in the management and thereby hinders the company's normal course of operations or the exercise of the rights of the other Company Members, or when he/she otherwise commits a serious violation of the memorandum of association.
(4) A Company Member may not waive the rights referred to in paragraphs (2) and (3) of this Article in advance.
Article 502
(Termination of shareholding due to withdrawal or exclusion of a Company Member) (1) The withdrawal or exclusion of a Company Member shall result in the termination of his shareholding and all the rights and obligations associated with it.
(2) The other Company Members shall do the following within three months of the withdrawal or exclusion of a Company Member:
– adopt a resolution to reduce the share capital by an amount equalling the nominal value of the capital contribution that represents the shareholding to be terminated in accordance with the preceding paragraph; or
– acquire new capital contributions or increase their capital contributions in proportion to the extent of their existing shareholdings so that the amount of the share capital equals the share capital amount before the termination of the shareholding in accordance with paragraph (1) of this Article.
(3) The provisions of Article 520 of this Act shall apply, mutatis mutandis, to the reduction in the share capital referred to in the first indent of the preceding paragraph. The provisions of paragraphs (3) and (4) of Article 517 of this Act shall apply, mutatis mutandis, to the acquisition of capital contributions or to the increase in capital contributions in accordance with the second indent of paragraph (2) of this Article.
(4) If the remaining Company Members fail to adopt a resolution referred to in the first or second indent of paragraph (2) of this Article within three months of the withdrawal or exclusion of a Company Member, they shall be deemed to have adopted a resolution to reduce the share capital referred to in the first indent of paragraph (2) of this Article and the manager shall act in accordance with Article 520 of this Act.
(5) A Company Member who withdraws from the company shall be entitled to a refund of the estimated amount of his shareholding at the time of withdrawal. The company shall pay him/her this amount no later than within three years of the withdrawal date, plus interest at the rate at which interest is paid on bank demand deposits. A Company Member who made a non-cash contribution to the company may request the restitution of the things or rights that were the subject matter of the contribution instead of such payment, provided that the value of these things or rights does not exceed the estimated value of the shareholding; however, this request may not be made earlier than within three months of the withdrawal.
(6) A Company Member that has been excluded from the company shall be entitled to a refund of the estimated amount of his shareholding at the time of exclusion. The company shall pay him/her this amount no later than within six years of the exclusion date plus interest at the rate at which interest is paid on bank demand deposits. If the company or the remaining Company Members request compensation from the excluded Company Member, the company may withhold the repayment of the estimated amount of the Company Member's shareholding until the final decision is made on the compensation claim, or until a settlement is reached between the company and the excluded member.
(7) The payment of the estimated amount of the shareholding in accordance with paragraphs (5) or (6) of this Article or the restitution of the subject of a non-cash contribution in accordance with paragraph (5) of this Article may only be effected after the registration of the share capital reduction or after the registration of the amendments to the provisions of the memorandum of association relating to the change in the shareholdings of the Company Members in accordance with the second indent of paragraph (2) of this Article.
Article 503
(Legal action by a Company Member)
(1) A Company Member may bring legal action on his own behalf or on behalf of the company against a Company Member who fails to meet his obligations associated with the formation or the management of the company.
(2) A Company Member shall only be entitled to bring legal action referred to in the preceding paragraph provided that he/she has unsuccessfully requested another Company Member to meet his obligations, or notified the company of the other Company Member's failure to comply with his obligations, and:
– if he/she has proposed to the general meeting to adopt a resolution to bring such legal action and the general meeting rejected his proposal;
– if he/she has proposed to the general meeting to adopt a resolution to bring such legal action and the general meeting rejected his proposal;