Agio in an Austrian GmbH capital increase: separate nominal amount, premium, tied capital reserve, due date and late-payment consequences.
A GmbH capital increase must separate the nominal amount from the agio in all relevant documents. The nominal amount of the new capital contribution increases the registered share capital. The agio is the additional premium paid by the subscriber to the company above that nominal amount. The capital-increase resolution, subscription declaration, payment schedule and accounting therefore need to follow one transaction logic. Section 52 GmbHG governs the capital increase and the form of the subscription, while section 53 GmbHG governs completion in the companies register. Section 229 UGB classifies the agio as a capital reserve. A late payment can create a separate claim for the company and can complicate completion of the capital increase. The key question is which part is due when and whether the resolution, declaration and payment evidence say the same thing.
Choose the point at which preparation or completion is currently unclear. The result shows which documents and figures should be compared first.
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The nominal amount is the amount of the new capital contribution by which the registered share capital increases. The agio is the additional amount paid by the subscriber to the GmbH above that nominal amount. For example, if a new capital contribution with a nominal amount of EUR 10,000 is subscribed for a total of EUR 110,000, EUR 10,000 is allocated to the share capital and EUR 100,000 to the agio. The economic valuation follows from the financing agreement. The corporate documents must nevertheless state which amount has which function.
The allocation matters for the participation ratio. The ratio generally follows the nominal amount of the subscribed capital contribution and the total share capital after the increase. The agio does not increase the registered share capital by the same amount. A cap table that derives participation from the total investment can therefore produce the wrong ratio. For economic reporting, the nominal amount and premium may be shown together as one investment. The capital figure, capital contribution, companies-register filing and accounting require a separate presentation.
The capital-increase resolution should also show which new capital contributions are created and who may subscribe for them. The article on anti-dilution protection in a financing round addresses the participation calculation and subscription rights as a separate issue. The agio belongs in the financing logic, but it does not replace a rule on existing shareholders participation.
Section 52(1) GmbHG requires a resolution amending the articles for an increase of the registered share capital. Under section 52(2) GmbHG, existing shareholders or other persons may be admitted to subscribe for the new capital contributions. Section 52(4) GmbHG requires the subscription declaration to take the form of a notarial deed. The declaration must therefore identify the same new share and the same nominal amount as the capital-increase resolution.
The agio should be stated as a separate additional performance, with its amount or an identifiable calculation, recipient, due date and payment route. For a subscription by a third person, section 52(5) GmbHG also requires the declaration to record the accession to the company under the articles. The declaration must state, in addition to the amount of the capital contribution, the other performances to which the subscriber is to be bound under the articles. For existing shareholders, the specific wording of the resolution, agreement and declaration remains decisive. An express separation still provides useful evidence.
A term sheet or financing agreement may prepare the economic terms. The corporate implementation should not be spread across contradictory documents. A resolution referring to EUR 10,000 nominal amount, a subscription declaration referring to EUR 12,000 and a payment schedule referring to EUR 110,000 leave the due obligation unclear. The obligation must be clear from the documents as a whole before notarisation and payment begin.
Section 229(2)(1) UGB assigns to the capital reserve the amount received on the issue of shares above their nominal amount. This is the accounting basis for the agio. It is therefore generally not part of the registered share capital and is not operating profit from the companys business. The accounts should record it separately from the nominal amount and make the payment date traceable.
For stock corporations and large limited liability companies, sections 229(4) and (5) UGB provide for tied reserves. The tied capital reserve includes the amounts named in section 229(2)(1) to (4), including an agio received on the issue of shares. For a smaller GmbH, section 229(2)(1) UGB remains the basis for showing a capital reserve. The special provisions on tied reserves in sections 229(4) to (7) UGB must be read in light of their statutory connection to the companys size category. The contract should reflect this distinction.
The classification as a capital reserve does not make the agio an unrestricted distribution. Under section 229(7) UGB, tied reserves may be released only to cover an otherwise reportable balance-sheet loss. The capital-maintenance rules of the GmbHG also apply. A clause promising later repayment of the premium therefore requires a separate review of corporate and accounting requirements.
The due date of the agio follows from the documents agreed by the parties. It should be set as a specific date or as an event that can be determined without doubt. Possible triggers include signing the subscription declaration, registration of the capital increase, payment of a financing instalment or fulfilment of an expressly described completion condition. A reference to “closing” works only if the agreement identifies the closing event and the payment due on that date.
The nominal amount and agio may have the same due date, but they do not have to. If the new capital contribution is paid for completion in the companies register and the agio falls due later, the documents need two separate payment obligations. The schedule should state the amount, debtor, recipient account, due date, payment reference and evidence for each instalment. If a condition precedent applies, it should also state who records its fulfilment and what happens if the condition does not occur.
Section 63(1) GmbHG requires each shareholder to pay the subscribed capital contribution according to the articles and valid resolutions. Section 63(6) GmbHG makes reservations and restrictions on subscribing or paying capital contributions ineffective. This supports a clear, unconditional rule for the nominal amount. The agio should be described separately as an additional performance so that its due date is not confused with the capital-contribution duty.
A late payment first requires identification of the outstanding amount. The payment rules for the new capital contribution apply to that contribution. Section 52(6) GmbHG makes, among others, section 10 GmbHG applicable by analogy to a capital increase. Section 53(1) GmbHG provides that the increase is to be filed with the companies register once the increased share capital is covered by subscriptions and the capital contributions have been paid. If that requirement is not met, the filing must be reassessed in substance and timing.
Sections 66 to 69 GmbHG show the statutory response to late payment. Under section 66 GmbHG, the company may threaten exclusion by registered letter while setting an additional period of at least one month for payment. After that period expires without payment, exclusion may be declared. Late payment of the new capital contribution is therefore not merely an accounting issue. Delivery, the additional period, the resolution and the precise claim need documentation.
An outstanding agio is separate. Whether the company can demand the premium immediately, whether an additional period applies and which contractual consequences follow depend on the subscription declaration, articles, financing resolution and payment schedule. The label agio does not create one uniform due-date rule. A partial payment should therefore be allocated expressly. Otherwise it remains unclear whether the nominal amount or the premium was paid first.
Completion under section 53 GmbHG requires a consistent file. It includes the notarial capital-increase resolution, the subscription declarations in notarial form or certified copies and evidence that the new capital contributions were paid. The filing should rely on a participation calculation that matches the instruments and the actual incoming payments.
A bank statement does not always show which part of a combined payment relates to the nominal amount and which part relates to the agio. The payment order, reference, confirmation and accounting instruction should therefore use the same allocation. Where there are several investors, each subscriber needs a separate allocation. Differences between the total and the individual amounts can affect the filing, the capital reserve and a later claim review.
The article on authorised capital in a FlexCo explains the distinction between an authorisation framework and the later completion of an issue. In a GmbH capital increase under section 52 GmbHG, the resolution, subscription, payment and filing must still describe one transaction. Registration in the companies register does not replace review of an outstanding additional performance.
The review should bring together the current articles and all amendments, the capital-increase resolution, the subscription declaration, the term sheet or financing agreement and the cap table. The companies-register extract, payment request, bank statements, payment confirmations and accounting records should be added. For several tranches, the closing dates and conditions should appear in one timeline.
The review asks four questions in sequence: What nominal amount was subscribed? What agio was additionally agreed? When is each amount due? Which payment fulfils which part of the obligation? Only then can it be assessed whether the capital increase has been paid sufficiently for registration and which claim remains outstanding because of a late payment. The file should also show whether subscription rights, consent or a special contractual majority affected the round.
If an instrument and a payment differ, the company should clarify the discrepancy before continuing with the register filing or using the funds. A later email does not reliably replace a contradictory subscription declaration. The closer completion or a payment dispute comes, the more important the original instruments, delivery evidence and reconciled accounting become.
No. The agio is the amount above the nominal amount of the new capital contribution. The nominal amount increases the registered share capital, while section 229(2)(1) UGB requires the agio to be shown as a capital reserve.
That depends on the resolution, subscription declaration and payment schedule. Both amounts can be due on the same day. A later due date for the agio requires a clear rule with an amount, date or event and payment route.
This cannot be answered in general terms. Section 53 GmbHG links the filing to coverage and payment of the subscribed capital contributions. The outstanding agio can create a separate performance obligation and a separate completion or contractual risk.
For a capital increase with agio, start with one payment and participation schedule. For each subscriber, record the nominal amount, agio, ratio, due date, incoming payment and supporting evidence. Then compare the resolution, subscription declaration, companies-register filing and accounting against the same figures.
For a review, collect the articles, amendments, financing resolution, notarised subscription declaration, cap table and all payment documents. We can classify the capital-contribution and premium obligations, review the due date and explain which steps fit the planned completion or enforcement. New articles and legal information are available through BRANDaktuell legal updates.
Review and structure GmbH articles with Brandauer Rechtsanwälte in Austria.
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