I. Content and purpose of convertible loan agreements

In principle, convertible loan agreements are loan agreements under which either shareholders or third parties lend a certain amount of money to a GmbH (a company with limited liability) as the borrower. As a rule, such loans have a relatively high interest rate and – in particular for reasons of insolvency law and banking supervision – are subject to a qualified subordination (qualifizierter Rangrücktritt).
As the name suggests, convertible loans provide for the right to convert repayment claims into (newly issued) shares in the borrower in certain situations. In order to ensure that the capital is properly raised in accordance with company law, the nominal amounts of the new shares are paid in cash and the premium is paid when the lender contributes its loan repayment claim to the GmbH’s free capital reserve by way of assignment.
Convertible loan agreements often not only provide for a right of the lender to convert the loan, but – in certain constellations – there is also a complementary conversion obligation on the part of the lender, i.e. a de facto conversion right of the borrower instead of repayment.
For the lender, such a loan – especially in the early phase of a company – regularly represents a risky investment, which, however, offers the opportunity to join in later as a shareholder at a comparatively favorable price and to profit from the earnings or the increase in value of the company.
Due to the – supposed – freedom from formalities, the convertible loan appears to be faster than an equity-based financing round and is therefore used in practice particularly for interim financing.

II. Possible constellations in the case of a convertible loan

There are different constellations for convertible loans, which also have an impact on the question of form:
First of all, a distinction can be made according to the parties involved in the conclusion of the contract. At first glance, the simplest constellation is that the only parties to the loan agreement are the lender and the borrower (i.e. the GmbH). Alternatively, in addition to the lender and the borrower, (all) shareholders of the GmbH may also be involved in the convertible loan.
In both cases, a further distinction can be made as to whether the lender is already a shareholder of the GmbH or whether it is a third party who would only become a shareholder after conversion of the loan and who must then also enter into a shareholders’ agreement.
Finally, when drafting the loan agreement, a distinction must be made as to whether the convertible loan agreement merely contains a conversion right on the part of the lender or whether conversion obligations are also or only provided for, i.e. whether the company can also or exclusively decide whether the loan repayment claims are to be converted into shares in the GmbH.

III. Legal form requirements

There are no explicit statutory form requirements for (convertible) loan agreements. First of all, loan agreements under § 488 German Civil Code (Bürgerliches Gesetzbuch – BGB) are in principle not subject to any formal requirements, with the exception of consumer loan agreements. The statutory provisions relating to the GmbH also do not contain any provisions that explicitly cover the constellation of convertible loan agreements.
Either § 53 para. 2 German Act on Limited Liability Companies (Gesetz betreffend die Gesellschaften mit beschränkter Haftung – GmbHG) and/or § 55 para. 1 and 2 GmbHG are referred to for the justification of (alleged) form requirements.
§ 53 para. 2 GmbHG establishes a notarization requirement (notarielle Beurkundung) for shareholders’ resolutions by which a change in the articles of association is resolved at the GmbH, such as a capital increase. § 55 para. 1 and 2 GmbHG, on the other hand, subject the so-called takeover declaration for the new shares created in the course of a capital increase to the requirement of notarial certification (notarielle Beglaubigung).
The notarization requirement – pursuant to § 53 para. 2 GmbHG – is stricter than the mere notarial certification requirement pursuant to § 55 para. 1 GmbHG (however, a notarial certification is always included in a notarization). Notarization contains the “typical” elements of notarial involvement, i.e., among other things, protection against haste (Übereilungsschutz), a warning function, but also an advisory component. Notarial certification , on the other hand, carries in itself above all the (mere) evidentiary function: it is intended to ensure that the person acting (in the case of § 55 para. 1 GmbHG: signing the takeover declaration) is actually the person they claim to be, i.e. the signature of the person acting is certified without the entire contract being read out.

IV. Application to the possible constellations

If the convertible loan agreement is only concluded between the lender and the company as borrower and if the agreement only provides for conversion rights for the borrower, it is generally undisputed that there are no formal requirements for the loan agreement, because there is no (latent) obligation of the lender preceding the acquisition of new shares, for which the analogous application of § 55 para. 1 GmbHG could be considered. The provision of § 53 para. 2 GmbHG on the notarization requirement and the qualified majority vote of the shareholders is (only) directed at the shareholders’ meeting, which is not a party to the loan agreement.
However, it is predominantly assumed that a prerequisite for an effective obligation of the company in connection with the conclusion of the convertible loan agreement is that the management must be authorized by a shareholders’ resolution adopted by a three-quarters majority. In this context, some opinions demand, with reference to § 53 para. 2, that this resolution (because it contains the obligation to amend the articles of association, which would indisputably have to be notarized) must also be notarized – even more far-reaching opinions demand that this must be recorded in the commercial register. Others reject such a formal requirement.
If the loan agreement contains a conversion obligation, it is sometimes argued that the provisions of § 55 para. 1 and 2 GmbHG are to be applied analogously and that therefore at least the signature of the lender must be certified by a notary public, because the conclusion of such a loan agreement entails the obligation to issue the (in rem) takeover declaration concerning new shares under certain conditions, which is in any case subject to the notarial certification requirement. Others reject such a requirement, inter alia, because the legislator has deliberately dispensed with a form for the obligation and only the takeover itself requires special form. In some cases, a distinction is also made in this constellation as to whether the lender is already a shareholder or not, because § 55 para. 2 sentence 2 also distinguishes between an existing shareholder and a new shareholder who takes over new shares. In the latter case, in addition to the nominal amount, other performance obligations (e.g. a premium) of the transferee must also be stated in the takeover declaration. In this respect, the obligation to certify, in addition to the evidentiary function discussed above, should also have a warning and precautionary protective function in favor of the transferee, since the new shareholder has no (deep) insight into the company’s internal affairs.
If the loan agreement is not only concluded by the company and the lender, but also by the shareholders, and if the latter assume the obligation to implement the capital increase, the prevailing view is that a shareholders’ resolution is not required, since it is not the company that is under the obligation to implement the capital increase, but (all) individual shareholders. Due to this circumstance, there is also no separate formal requirement for the loan agreement, as this is in fact a voting agreement between the shareholders, which is in principle possible without a formal requirement. A distinction could also be made as to whether the lender is already a shareholder, in which case a notarization is rather not required, or a third party (still) outside the company.

V. Consequences for the practice

These comments show that there are still many unanswered questions regarding the formal requirements for convertible loans with GmbHs, especially as there have been relatively few court decisions on this to date. In practice, for the sake of legal certainty, notarization should be carried out in cases of doubt, triggering additional costs (notary fees) and thus consuming liquidity, which is regularly in short supply in the early stages of a company. If the conversion request is not complied with later, based on possible breaches of form, this can have considerable consequences. There is a tendency in case law to regard a convertible loan agreement as invalid in its entirety if the conversion obligation in the specific case is subject to a formal requirement and this requirement has not been complied with. The lack of form not only means that the funds obtained must be repaid at any time, but also that (qualified) subordination agreements may be invalid. This, in turn, is likely in many cases, at least in the case of early-stage financing, to bring the company obligated to repay into (near) insolvency and thus the management into a liability situation.

VI. The decision of the Zweibrücken Higher Regional Court, ruling of 17 May 2022, 8 U 30/19

The question raised at the outset as to whether the decision of the Zweibrücken Higher Regional Court has now (finally) resulted in legal certainty with regard to the formal requirements can be answered with a clear “yes and no”. Specifically, the case before the Zweibrücken Higher Regional Court involved a situation in which a third party (outside the company) had concluded a convertible loan agreement with the GmbH which, among other things, provided for a conversion obligation for the lender. This loan agreement was concluded in writing. The Higher Regional Court ruled that the company’s conversion obligation requires notarial certification in any case if the lender is a third party, as is the case here. A decision of the Munich Higher Regional Court dated 4 May 2005, 23 U 5121/04, shows that the Munich Higher Regional Court does not accept such a requirement at least if the lender is not a third party but already a shareholder.
If these two Higher Regional Court decisions are taken as a basis, they provide a certain guideline at least for those cases in which a conversion obligation is (also) provided for. However, this does not result in conclusive legal certainty. “Fortunately”, the proceedings of the Zweibrücken Higher Regional Court are pending before the Federal Supreme Court (Case No. II ZR 96/22), so that there is a certain chance that the Federal Supreme Court will be able to take a position on some questions relating to the requirement of form for conversion loans, particularly as the Zweibrücken Higher Regional Court also indicated in an obiter dictum that the shareholders’ resolution authorizing the conclusion of such a conversion loan agreement requires notarization.

VII. Conclusion

In the case of convertible loans, as is so often the case in legal reality, it depends on the individual case and problems arise primarily when there are disagreements between the parties. Before concluding a convertible loan, legal advice should therefore be sought to clarify whether there are any formal requirements and, if in doubt, these should be observed. The mere certification of a signature, unlike a notarization, triggers manageable notary costs.