- The initial issuance of company value shares in an existing FlexCo via a capital increase is indisputably permissible, provided the articles of association contain a basis for the issuance of such shares.
- A "mere conversion" of regular shares into company value shares, however, is not permitted. If such a conversion were allowed, an amendment to the articles of association would not be required—assuming the articles already contain a basis for issuing company value shares. Allowing this conversion would impair legal certainty for commercial transactions due to corporate registry law considerations. Furthermore, the current identity of the company value share holder and the extent of their stake might remain unclear to the public, given the status of the commercial register and the list of names published in the collection of deeds (....).
- The aspect of creditor protection cannot be entirely disregarded in this context, particularly because it becomes more difficult for creditors to seek recourse against company value participants; creditors would first be forced to determine the correct person, depending on the respective points in time.
- Even Section 9 (9) of the FlexKapGG does not provide for a direct conversion through a simple amendment to the articles of association, a shareholder resolution, or their entry in the commercial register (....).
OGH 30.6.2026, 6 Ob 180/25a, GesRZ 2026, 271
(Ettmayer/Hiermann, GesRZ 2026, 233)
