Leaver-Call-Options in Manager Equity after BGH II ZR 71/24

Most PE- or VC-backed startups grant their CEO or CFO a small stake through a separate management-participation vehicle. When the manager leaves, a leaver-call-option lets the company buy the stake back, often at a price below what the manager paid. Whether that is sittenwidrig under § 138 Abs. 1 BGB has been a guess for years. The BGH answered on 10 February 2026.

In BGH II ZR 71/24, a former Fremdgeschäftsführer of a PE portfolio company had bought into the management vehicle at fair-market value and was bought out, after his removal, at a substantially lower price. He argued the call clause was nichtig. The Second Civil Senate disagreed and set out three conditions that, together with the overall Gesamtwürdigung of the manager's position, decide validity:

1. The participation is granted only because of the manager's role as Geschäftsführer or Vorstand and serves a clear incentive purpose.
2. The participation pursues alignment and value-sharing, and that purpose automatically ends when the manager leaves.
3. The manager has no real co-owner status: no meaningful voting rights, no factual control, no structurally equal standing with investors.

The point that matters in practice: buying in at fair-market value does not automatically lift the stake to true co-owner status. What matters is the absence of corporate influence, not the price tag. The decision extends the older Managermodell line (BGH II ZR 173/04 of 19.09.2005) from Nennwert annex stakes into PE/VC manager-equity acquired at full Verkehrswert.

What to do: review every Manager-Beteiligungs-Dokumentation against the three conditions. Make the incentive purpose explicit, restrict voting rights, and tie the call right to the end of the Organstellung. In the vesting and bad-leaver mandates I handle, the documents that fail are drafted to read like a real shareholder agreement, not a management incentive.