Zusicherungen und Garantien zugunsten von Investoren im Rahmen einer Finanzierungsrunde

Before committing to provide additional funds to a target company, investors will typically seek to secure their investment with appropriate representations and warranties. In order to do so, the investors may rely on various stakeholders and, among other options, request that appropriate representations and warranties be provided by the target company itself.

This article addresses the statutory limitations on the compensation of the investors with the target company’s own funds and deals with alternative compensation schemes which allow to overcome the statutory restrictions.

For the purpose of their analysis, the authors in particular focus on the so-called “compensatory capital increase”, a concept which is increasingly relied upon by legal professionals. Under this concept, the existing shareholders agree that the target company’s stock capital, in the event of a breach of representations or warranties, be increased for the sole benefit of the investors. Because the shareholder’s…