Germany: What are the organizational documents necessary for the incorporation of a GmbH?
To establish a GmbH in particular the following key organizational documents need to be established:
Articles of Association (Gesellschaftsvertrag): The articles of association provide the constitutional basis of the GmbH regulating the relationship of its shareholders in their capacity as shareholders of the GmbH as well as their relationship vis-à-vis the GmbH. The articles of association need in any case to provide for the company's name, registered office, business purpose, details on the share capital (number of shares issued, nominal amounts of shares issued) and the shareholders' contributions. The articles of association need to be notarized.
Shareholders' Resolution (Gesellschafterbeschluss): The shareholders' resolution includes the decision of the shareholders to establish the GmbH, to adopt the new articles of association and the appointment of managing directors as well as other initial organizational matters (as the case may be).
List of Shareholders (Gesellschafterliste): This document lists all shareholders and their respective shareholding in the company and includes details about the respective shareholders, in case of a legal entity, registration details and address, and in case of a natural person, date of birth and residency. The list of shareholders is submitted to the company's competent commercial register (Handelsregister).
Commercial Register Application (Handelsregisteranmeldung): The company must be registered with the competent commercial register. The commercial register application is usually prepared and submitted for registration by the acting notary notarizing the incorporation of the GmbH (i.e., the shareholders' resolution regarding the incorporation and the adoption of the articles of the association of the GmbH); the commercial register application needs to be signed by all appointed managing directors and certified by a notary (notariell beglaubigt). Please note that the application can only be submitted to the commercial register after the nominal amounts have been paid in by the shareholders (which in turn, requires the opening of a company bank account).
Optional Organizational Documents: In addition to the above "mandatory" documentation, also the following documents may become relevant when incorporating a startup as GmbH in Germany (optional):
Rules of procedure for the management board;
Rules of procedure for the advisory board (in case an advisory board should already be implemented at the time of the incorporation of the GmbH, which is rarely the case);
Vesting agreement regarding economical vesting of founders' shares held in the GmbH;
Contribution agreement regarding the transfer/contribution of partnership interests of a GbR into the GmbH; and
Transfer/assignment agreements regarding the transfer of intellectual property rights or other assets required by the GmbH to conduct its business operations.