Call option after loss of professional authorisation in a GmbH

A call option in the articles can allow the acquisition of a GmbH share when a shareholder loses a personal professional authorisation that is important for the business. For the clause to work when needed, it must describe the trigger in a way that can be proved, set out the timing of exercise and provide a transparent method for determining the share price. A temporary restriction, a voluntary surrender and a final withdrawal may require different consequences. The closing must also respect the statutory form for transfers of GmbH shares.

Which loss of authorisation triggers the call option?

The articles should state precisely when the call option arises. In the case of an official decision, possible reference points include a legally effective withdrawal, expiry or a defined form of prohibition. A mere report, pending procedure or provisional restriction may require different treatment. The trigger should attach to an event that can be proved and should not depend only on an unclear assessment by the shareholders.

The distinction between a final loss and a temporary suspension is particularly important. The business may continue during a short interruption through a substitute professional or an organisational solution. A permanent loss may leave the company dependent on another qualified person. The clause should therefore deal separately with duration, reinstatement and proof.

The overview of share transfers and transfer restrictions places the issue within the wider contractual architecture. It explains consent requirements, transfer form and the coordination of related clauses.

Who may exercise the call option and how?

The clause must identify the persons entitled to exercise it. Options include individual co-shareholders according to their holdings, a particular shareholder who can provide the professional succession, or several entitled persons acting through a coordinated procedure. If the share may be divided among several acquirers, the agreement needs a rule for allocation and for the case where one entitled person does not participate.

Exercise should take place through a clear declaration to the correct recipient. Form, service address, proof of the trigger and the start of the deadline should be regulated. The agreement should also state whether the option covers the entire share or an identifiable part. Unclear partial transfers complicate both valuation and company-register filing.

A notice procedure for all involved persons prevents parallel declarations. The notice should identify the official proof, valuation date, provisional price calculation and intended notarial appointment. Shareholders, management and the notary can then work from the same facts. The article on pledging GmbH shares and consent illustrates why encumbrances and consent clauses need to be read together.

How should the share price and valuation date be set?

A call option needs a pricing rule that can be applied when it is exercised. The agreement may use a fixed contractual price, a formula or an independent expert valuation. A formula must identify its reference points clearly. These may include the valuation date, relevant accounts, the treatment of debt and cash, and the handling of extraordinary transactions.

The valuation date should fit the trigger. A date on which the final loss occurs may show a different economic position from the last audited annual accounts. The agreement should state how interim distributions, investments, new financing and exceptional burdens are taken into account. A blanket nominal-value clause may miss the economic significance of the share and create a valuation dispute.

A personal professional authorisation may be closely linked to the shareholder. The parties should therefore consider separately whether personal goodwill, a client base or operational work may be attributed to the share. The agreement should avoid counting the same economic value twice. The article on change of control in the shareholder circle offers a useful comparison with another buy-out trigger.

Why the notarial deed matters for closing

Under section 76 paragraph 2 GmbHG, the transfer of a share and an agreement obliging a shareholder to transfer it in the future require a notarial deed. The call option should therefore not be drafted as though an informal declaration itself transfers the share. Exercise starts the contractual procedure; the obligation and assignment must be handled in the required form during the concrete closing.

The exercise declaration, proof of the loss of authorisation, share-price calculation, consent position and payment security belong in one closing file. The notary must be able to identify the affected share, the intended acquirer and the persons giving the required declarations. An existing transfer restriction must be checked in the same sequence.

Formal requirements and internal valuation are separate issues. An expert report does not replace a notarial deed. A properly notarised transfer also does not resolve a valuation dispute where the agreement leaves the calculation open. The share transfer checklist helps organise the documents for the appointment.

Which steps belong to closing and the register?

A reliable closing plan begins with establishing the trigger and ends with reconciled documentation after the transfer. Between those points are notice, exercise, price determination, satisfaction of agreed conditions, the notarial deed and payment or security for the price. The articles should assign each step to a person and identify the document that confirms completion.

Under section 78(1) GmbHG, in relation to the company only the person shown as shareholder in the company register is treated as a shareholder. The new shareholder should therefore coordinate with management and the notary on filing the changed shareholder position. Before registration, arrangements between the parties and treatment by the company may diverge.

The register review should cover more than the name. Share, nominal contribution, paid-in amount and acquirer must match the notarial deed. The article on two-shareholder GmbH structures shows why clear control and succession rules support the company’s ability to act.

How does the call option differ from other rights?

A call option attaches to an agreed trigger and gives the entitled person a right to acquire. A pre-emption right usually presupposes a concrete offer to sell to a third party. A general buy-out right may instead attach to death, insolvency, termination or a change of control. The articles should separate these instruments by terminology and sequence.

Coordination becomes difficult where loss of authorisation is described at the same time as a breach of duty, exit event or general buy-out event. Several clauses may then cover the same facts while providing different prices, deadlines and entitled persons. A priority rule or a clearly defined precedence prevents a dispute over the correct instrument at the critical moment.

An amendment also requires review of the resolution majority and notarial certification under sections 49 and 50 GmbHG. The article on co-sale rules in a majority sale shows another transaction setting where triggers, equal treatment and transfer form have to fit together.

Which documents support exercise of the call option?

The review file should contain the current articles and amendments, company register extract, shareholding overview and documents concerning the professional authorisation. Depending on the profession, this may include the official decision, proof of service, evidence of legal effectiveness or expiry, and documents showing the shareholder’s actual role in the business. The required proof depends on the professional rules and the wording of the clause.

For the price calculation, collect annual accounts, current management accounts, financing documents, extraordinary transactions and the calculation under the agreed method. If an expert is provided for, the agreement should regulate appointment, mandate, deadline and treatment of obvious calculation errors. The parties should be able to distinguish a provisional price from the final price.

A well-ordered file records every declaration and receipt with its date. This makes the beginning of the deadline verifiable and shows whether the notarial appointment, payment and register filing were coordinated. Readers who want regular updates on company law can subscribe to BRANDaktuelle legal updates.

Frequently asked questions about call options and authorisation