A private limited company (GmbH) applied for an amendment of the articles of association according to which in the future a transfer price would have to be paid upon the exercise of any right of recourse, which would be determined as 50% of the enterprise value to be determined. Cases of the right of acquisitions included the non-opening of insolvency proceedings by a court of law or the annulment of insolvency proceedings due to a lack of assets to cover costs, the execution on the business share and the opening of bankruptcy proceedings against the assets of a shareholder by a court of law.
The consequence of this amendment of the articles of association would be that the assignment price applicable to acquisition rights would not apply to cases of change of shareholders not affected by acquisition rights (inter alia, the sale of a share within the family circle not requiring consent), but - in the absence of a provision in the articles of association - could be freely agreed between the parties to the assignment agreement.
The lower/previous courts dismissed the application for registration.
2. Decision of the Austrian Supreme Court (6 Ob 86/21x) and conclusion
The Supreme Court decided with reference to its previous decision on 6 Ob 64/20k that the type of withdrawal of the shareholder is irrelevant for the acquisition rights and the claim for compensation. Already in his decisions 6 Ob 64/20k and 6 Ob 251/20k he stated that cases of the acquisition rights are to be treated in the same way. The background is the protection of creditors. It is irrelevant whether the shareholder leaves voluntarily, due to death, execution or insolvency. The acquisition rights and the claim for compensation must be treated equally in all cases of a change of shareholder.
A severance payment restriction below the market value (estimated value) of the shareholder's share must therefore apply to all types of withdrawal of the shareholder. For example, a severance payment restriction cannot be agreed (in the articles of association) only for cases of execution or insolvency of the shareholder. This avoids harming or disadvantaging the creditors.
The Austrian Supreme Court did not deal with the substantive question of whether a 50% deduction from the market value is permissible, as according to it this was no longer relevant to the decision.
Conclusion and comment: Care must therefore be taken to ensure that in shareholder agreements, acquisition rights and claims to compensation and related restrictions apply equally to all cases of withdrawal of a partner. No distinction should be made between a voluntary (assignment of the share) or involuntary (e.g. death, execution, insolvency) change of shareholder.