Complex business transactions: Non-cash capital increases
In the case of a non-cash capital increase, the capital increase – that is, the increase of a joint-stock company’s capital stock – is effected by issuing new shares, not for cash, but for non-cash values. These non-cash assets can be individual assets such as real estate or a patent, but also entire companies. Capital increases against a non-cash asset have versatile applications. In the case of strategic alliances and mergers in particular, non-cash capital increases can be a proven method for achieving the intended goals with very little use of cash resources.
In the case of a non-cash capital increase of a joint-stock company, the non-cash contribution must be audited by an external auditor or auditors in line with §183, paragraph 3 of the AktG or §205, paragraph 5 of the AktG. Keeping to the letter of the law, it was formerly common practice to confirm the lowest issuing price, which was frequently below the fair market value. In its Babcock decision of 6 December 2011, the BGH clearly stated that both the lowest issuing price (§9, paragraph 1 of the AktG) and the premium (§9, paragraph 2 of the AktG) must be confirmed (BGH II ZR 149/10).
Today’s practice, based on the BGH jurisdiction now requires a confirmation of the ‘full’ value; that is, the attestation must be based on an evaluation performed in keeping with the applicable standards in each case. Where the object of the non-cash contribution is a company, it is common practice to perform an evaluation of the company as per IDW S 1 in the scope of the non-cash capital increase and to describe this in the auditor’s report. BDO has qualified candidates for virtually any non-cash contribution scenario who are capable of appraising the special features of your non-cash asset and supporting you in the rapid implementation of your capital measure.