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Experience the Future of Law, Today Reflections on the Legal Form Experience the future of law, today | Table of Contents Experience the future of law, today Reflections on the legal form Strengthening the equity base through third-party participation while at the same time securing control by the previous owners 00 Experience the future of law, today | Table of Contents Table of Contents Table of Contents 1 Initial situation: Interest in securing control of the company despite the need for equity 2 The partnership limited by shares (Kommanditgesellschaft auf Aktien) as a solution 3 What is the KGaA? 3 What makes the KGaA so unique? 3 Summary 4 01 Experience the future of law, today | Reflections on the legal form Reflections on the legal form Strengthening the equity base of through third- party participation while at the same time securing control by the previous owners Initial situation: Interest in securing control of the company despite the need for equity The current crisis is eating away at the equity capital of numerous German companies. Many of them will in the medium term need additional financial resources, whether to replace state-backed loans from KfW or other state loans and thus restore their ability to pay dividends, to finance investments or simply to strengthen their equity base again. Also, it is conceivable, that acquisitions shall be made without impairing liquidity and that in view of the current slump in share prices other companies shall be taken over - because the opportunity is favorable or circumstances require it (rounding off the portfolio, acquisition of digital competence, securing and making the supply chain more flexible, insourcing, etc.). From businesses' point of view, pure debt financing is often not an option in this situation. Rather, companies are forced to in addition consider not only hybrid financing instruments but (at least in part) also equity financing, which often cannot be raised from the existing shareholders. In these cases, the funds must therefore come from new, outside investors. Especially in German Mittelstand companies, the shares are often wholly or mainly in the hands of a single or only few (family) shareholders. The family shareholders have control over their company and it is often important to them to secure this control permanently and to preserve it for future generations. In their belief, management and control powers should usually also remain secured if external third parties (must) participate in the company in order to strengthen the equity capital base. 02 Experience the future of law, today | Reflections on the legal form The partnership limited by shares (Kommanditgesellschaft auf Aktien) as a solution A change in legal form to a partnership limited by shares (Kommanditgesellschaft auf Aktien - KGaA) makes it pos- sible to secure the influence of the family shareholders even when raising new equity financing. In addition, the legal form allows new shares to be used as acquisition financing in the context of further expansion. Admittedly, the KGaA is not as widespread as other legal forms. But it is regulated by law, has long been estab- lished and is recognized. It also offers extensive structuring options, especially in the form of a Corporation & Co. KGaA. Not only Henkel and Merck have chosen this legal form, but for example also Bertelsmann, Ströer, Drägerwerk, CEWE and Fresenius. What is the KGaA? The partnership limited by shares (Kommanditgesellschaft auf Aktien) is a combination of a limited partnership and a stock corporation; it combines flexibility with trustworthiness and, last but not least, suitability for the capital market. The capital of the company is raised by the limited liability shareholders. The shares of the KGaA can be freely traded and even listed on the stock exchange, just as with a stock corporation. However, a stock exchange listing is not required; rather, the free tradeability of the shares can also be more or less severely restricted. As in a limited partnership, only the personally liable partner (general partner) is responsible for managing the business of the company. His position can be made almost unassailable by appropriate regulations. As with a limited partnership, the general partner does not have to be a natural person. Rather than that, a corpo- ration can also act as a general partner (GmbH & Co. KGaA, AG & Co. KGaA, SE & Co. KGaA, etc.). Hereby - similar to a GmbH & Co. KG - the liability can be effectively limited. What makes the KGaA so unique? In addition to the special position of the general partner, the internal statutes of a KGaA - unlike those of a stock corporation - can be drafted relatively flexibly and adapted to individual needs. The supervisory board of a KGaA, which monitors the management of the business as in an AG, has less power than in an AG. In particular, it has no personnel sovereignty and cannot influence the appointment of the management (i.e. the general partner and its managing directors or members of the Management/Executive Board). According to the prevailing opinion, in the KGaA - unlike it is the case with the GmbH & Co. KG - there is no attribution of employees for the purposes of co-determination (employee participation, the famous German "Mitbestimmung") at the level of the corporation acting as general partner, so that the general partner is not subject to co-determination (unless the corporation acting as general partner itself exceeds the thresholds of 500 or 2,000 employees, respec- tively, with its own employees). The legal form of a KGaA is thus particularly attractive for family-owned or privately owned companies as prevalent in the German Mittelstand. If the family shareholders have the power of management over the company acting as general partner, their power of management is independent of the extent of their participation in the limited partner shares (Kommanditaktien). Even if the family shareholders no longer have the majority of the limited partnership 03 Experience the future of law, today | Reflections on the legal form shares - for example, as a result of a capital increase required in the course of raising further equity capital - they can still control the fate of the KGaA in the long term. Only in very few cases do the limited liability shareholders have the opportunity to influence the position of the general partner. With this legal form, the family shareholders can also offer investors who enter into a so-called alongside investment with the family an exit option via the capital market, which does not exist with most other legal forms. Last but not least, the KGaA is also suitable as a flexible instrument in succession planning. By distinguishing between limited liability shareholders with only an equity interest on the one hand and shareholders of the managing general partner on the other, individual family members or individual family trees or members thereof can participate in the financial success of the company as limited liability shareholders without automatically being granted influence on the management. Summary The KGaA enables a previously controlling group of shareholders to maintain their control over a company even if third parties are to acquire an interest in the company in the course of raising further equity or if limited partner shares are used as acquisition currency in the course of the acquisition of other companies. The legal form of a KGaA therefore allows the typical objectives of family shareholders - strengthening the financial leeway without relinquishing management authority and control - to a particular degree. 04 Experience the future of law, today | Reflections on the legal form Contacts Dr. Volker Schulenburg Partner [email protected] +49 40 3785 380 Dr. Charlotte Sander Partner [email protected] +49 511 307559 536 Johannes T. Passas Partner [email protected] +49 511 3075593 Felix Skala Partner [email protected] +49 40 378 538 0 05 Experience the future of law, today | Reflections on the legal form Felix Felleisen Partner [email protected] +49 211 8772 2553 Dr. Michael Fischer Partner [email protected] +49 89 290368902 Dr. Till Contzen Partner [email protected] +49 69 719188 439 Thomas Northoff Partner [email protected] +49 89 29036 8566 06 Experience the future of law, today | Reflections on the legal form Dr. Markus Schackmann Partner [email protected] +49 211 8772 3577 0©7 2020 Deloitte Legal Rechtsanwaltsgesellschaft mbH Experience the future of law, today | Reflections on the legal form Deloitte Legal means the legal practices of Deloitte Touche Tohmatsu Limited member firms, their affiliates or partner firms that provide legal services. This communication contains general information only not suitable for addressing the particular circumstances of any individual case and is not intended to be used as a basis for commercial decisions or decisions of any other kind. None of Deloitte Legal Rechtsanwaltsgesellschaft mbH or Deloitte Touche Tohmatsu Limited, its member firms, or their related entities (collectively, the “Deloitte network”) is, by means of this com- munication, rendering professional advice or services. No entity in the Deloitte network shall be responsible for any loss whatsoever sustained by any person who relies on this communication. Deloitte refers to one or more of Deloitte Touche Tohmatsu Limited, a UK private company limited by guarantee (“DTTL”), its network of mem-ber firms, and their related entities. DTTL and each of its member firms are legally separate and independent entities. DTTL (also referred to as „Deloitte Global”) does not provide services to clients. Please see www.deloitte.com/de/UeberUns for a more detailed description of DTTL and its member firms. Deloitte provides audit, risk advisory, tax, financial advisory and con- sult-ing services to public and private clients spanning multiple indus- tries; legal advisory services in Germany are provided by Deloitte Legal. With a globally connected network of member firms in more than 150 coun-tries, Deloitte brings world-class capabilities and high-quality ser- vice to clients, delivering the insights they need to address their most complex business challenges.
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