Kommanditgesellschaft auf Aktien
The partnership limited by shares, or shortly KGaA, in some jurisdictions, a legal form for companies. It combines elements of the Aktiengesellschaft ( AG) and limited partnership ( KG ) with each other. When a KGaA is a corporation that has in place a Board of Directors on general partners (general partners ).
Although KGaA has characteristics of a partnership, it is still a corporation. It is itself a legal entity. A KGaA is trading company and thus merchant according to the Commercial Code. The KGaA appeared frequently as a GmbH & Co. KGaA or as AG & Co. KGaA. In these designs is liable regularly not a natural person resident.
At the KGaA shareholders two different types are involved:
- The personally liable partners ( phG or partners) are essentially subject to the Partnership Law ( § 278 para 2 AktG). They are the Executive and an authorized representative; apply the § § 161 para 2, § 115, § 116 and § 125 HGB. Individual general partners may be excluded by statute determination of the management and representation.
- The limited partners have the same membership rights as shareholders of a corporation ( § 278 para 3 AktG). They bring the decomposed into shares of capital stock KGaA, adhere but beyond that not apply to claims against the Company.
The capital structure of the KGaA is divided into two parts: the total capital of the KGaA is composed of the share capital of limited liability and the assets contributed by the general partners. The share capital amounts - as in the AG - at least 50,000 €. Apply the corporate law rules on raising capital and maintenance as well as for corporate actions. On the assets contributed by the Complementary people company rules are applicable.
Division of powers
The division of powers between general partners and limited partners differs quite significantly from the Executive Board and the shareholders in the AG:
The general partners have a stronger position than the Board in the AG: Your agreement is basically for all exceptional management measures and basic shops required, that no actions can be performed against the will of the general partners.
The limited partners have partly wider powers (eg, the decision on the financial statements, approval of exceptional management measures), some of them have less influence than the shareholders in the AG: They lack the indirect staff competence for the management, as the Supervisory Board, the Complementary can neither order nor dismissed; § 84 AktG does not apply. Inclusion of new general partner and withdrawal of management or authority to act generally requires the consent of all partners - including the person concerned.
The Supervisory Board is lacking in comparison to the AG further powers: A participation in management is not to the control panel in the KGaA; § 111 para 4 sentence 2 AktG is not applicable ( co-determination law privileging KGaA).
Compared to the AG is broad freedom in the Articles of Association. The consent rights of the limited partners can usually be waived: In addition to the exceptional management measures this concerns mainly measures that fall under the so-called Holzmüller Doctrine.
Suitable for family
The check is in the KGaA - unlike in the AG - not linked to the level of equity participation. In the AG, for example, Multiple voting rights for individual shareholders inadmissible. The general partners of the KGaA keep in contrast - depending on the design of the constitution - as a rule, then the power in society if they only make a small or no capital contribution. Therefore, the KGaA is considered takeover resistant, which is why it lends itself especially for family who wish to start in the stock market capital. Will the family members personally liable shareholder or majority shareholder of the general partner ( GmbH, AG, foundation, etc.), they also keep then in control when on the stock market more than 50% of the capital stock are sold to limited partners who do not belong to the family.
For family not only includes the takeover resistance further advantages, in particular the issue of succession. The GmbH & Co. KGaA opened inheritance tax leeway in this regard.
The practical significance of the KGaA has so far been low. There were only a few companies in Germany who chose this legal form. The Statistical Yearbook 1994 is still their number to 30. After the Supreme Court, however, in 1997 the previously controversial question whether a corporation should be personally liable partner of the KGaA said yes, undergoes the legal institution of a KGaA increased importance. After the turnover tax statistics of the Federal Statistical Office achieved the KGaAs in Germany in 2002 total sales of € 26.4 billion. 2010 are registered in the Federal Republic least 240 KGaA.
Henkel, Merck, Fresenius and Fresenius Medical Care is listed on the DAX examples of companies that are constituted in the legal form of a KGaA. Even the professional players departments of some Bundesliga clubs are in the form of a KGaA written (for example Hannover 96 GmbH & Co. KGaA, 1.FC Köln GmbH & Co. KGaA, Borussia Dortmund GmbH & Co. KGaA, Hertha BSC GmbH & Co. KGaA Greuther Fürth GmbH & Co. KGaA ) because the statutes of the League Association by the required transfer resistance, the form of KGaA privileged. In addition, the owner German private banks often choose the KGaA as a legal form (eg Metzler seel. Sohn & Co. KGaA, Hauck & Aufhäuser KGaA, Sal Oppenheim jr. KGaA ) to maintain the traditional personal liability of the owner. In fact, this is for the protection of creditors in corporate crisis, however, of minor importance; so was I. D. 1974 the private bank Herstatt KGaA despite personal owner liability in bankruptcy.