economies. As a result, many foreign
enterprises consider acquisitions of
companies in Germany to get (better)
access to the German market.
There are two major types of mergers
and acquisitions (M&A) transactions
in Germany: the acquisition of shares
of the target company (Share Deal) and
the acquisition of the assets of the target
company or of specific business segments
of the target company (Asset Deal). When
the buyer is supposed to acquire only
individual, but not all business segments
from the seller, or when the buyer does not
want to assume all liabilities or liability
risks, an Asset Deal is often the better
choice.
GmbH & Co. KG
Haftung) is the most common form of
corporation in Germany and is a limited
liability company. It does not have any
share certificates. The shares are trans-
ferred by way of an agreement, which
needs to be notarized.
A GmbH has a management board
consisting of at least one managing
director (Geschäftsführer). It can have a
separate supervisory board (Aufsichtsrat),
but usually does not have one unless it
is required by law for purposes of co-
determination of employees.
It is registered with the local commer-
cial register. Lawyers and other registered
users can get the key information, such
as names of the managing directors and
their power of representation, as well as
copies of the Articles of Association,
the list of shareholders and the annual
financial statements, on the Internet from
the commercial register.
A GmbH & Co. KG is a limited part-
nership with at least one limited partner
and a GmbH as general partner. The
GmbH & Co. KG is managed by the gen-
eral partner GmbH, which in turn is man-
aged by its managing directors. Usually,
the limited partners are also shareholders
of the general partner GmbH. The indi-
vidual liability is limited to the respective
limited partner's capital contribution.
The GmbH & Co. KG is registered
with the commercial register where its
key information is available. However, the
partnership agreement is not filed with
the commercial register and therefore
not publicly available. The partnership's
interests are transferred by way of an
if they are transferred together with the
shares of the general partner GmbH.
shares in a GmbH needs to be notarized
at a German notary public. This is often a
cumbersome procedure, since the entire
agreement, including all exhibits, needs
to be read aloud to the representatives of
the parties by the notary public. However,
German M&A lawyers are experienced
in this area and can ensure a smooth
notarization procedure. The notary's fees
can be material, depending on the value of
the notarized transactions. To give an ex-
ample: In the case of a purchase price of
about EUR 10 Mio. for GmbH shares, the
cost of notarization of the share purchase
and transfer agreement can be about EUR
35,000 plus VAT.
Representatives
councils (Bebriebsrat) consisting of
employees. It can be established by the
employees of each establishment with five
or more employees. The works council
needs to be involved in particular cases,
such as the dismissal of employees.
It needs to be informed beforehand.
Otherwise, the dismissal may be void.
In companies with more than
20 employees, the employer must
inform the works council in advance
about any planned alterations of an
establishment, which may cause
substantial disadvantages to a substantial
part of the staff. The employer must try
to reach an agreement with the works
(mergers and acquisitions) at WINHELLER. He
specializes in the fields of corporate law and M&A
transactions, as well as international business law
and general cross-border commercial law.
Tower 185
Friedrich-Ebert-Anlage 35-37
60327 Frankfurt am Main
Germany
winheller.com