in the commercial register of provincial court Innsbruck registered Mountain G ** Kurt F ** GmbH with a capital of ATS 500,000, which is done in half is, by Karin B ** as the sole director, sole shareholder, Kurt F **.
The manager Karin B ** filed with proof of contract and conversion of the General Assembly as of 02/08/2010 Protocol per the cancellation of the Company in the commercial register and the continuation of the single shareholder in the form of a non-logged on the registration of sole proprietorship.
In the General Assembly has approved the conversion agreement and that approved of the waiver on the application of the provisions of § § 220a, 220b and 221a, para 1-3 AktG made and decided that the limited liability company with effect from 31.12.2009 transmission is converted to the single shareholder of the company as the successor contractor as a sole proprietorship not logged in accordance with the provisions of the Conversion Law, based on the financial statements at 31.12.2009.
The sole member did not lodge an action for rescission or determination the nullity of the conversion resolution (§ 3 Abs 1 Z 7 Transformation Act).
was attached to the General Assembly minutes of the conversion agreement, which is the signature of the manager and the sole shareholder, this conversion contract was also documented in the form of a notarial deed, in making this notarial deed, however, had only a single shareholder Kurt F **, the managing director Karin B * * was not represented.
With improvement of the company's order book court has been advised of the following grounds:
a)
According to § 3 para 1 UmwG have the management of the corporation and the main shareholder, the conversion for registration in the Commercial Register at the court in whose jurisdiction the corporation has its registered office to register.
The declaration made here by the manager alone is therefore incomplete.
b)
According to § 16 FBG records all facts are determined on the entry of the site. In the present case, only the deletion of the Company and the continuation of the single shareholder non-logged as individual companies is requested. This is incomplete in the light of that Bestimmheitserfordernisses.
c)
The conversion agreement in Notariatsaktsform has been made only by the main shareholder (this was the establishment of the present notarial deed even alone). The corporation was thus clearly not represent the establishment of the conversion contract in the required form.
this improvement order was complied with, the transformation was applied in the form of officially certified by the managing director and sole shareholder for registration under the wording of the registration facts.
The conversion agreement was concluded on 03.09.2010 again in Notariatsaktsform, composed of the sole shareholder and director of the GmbH.
The General Assembly has this conversion agreement but not again vote.
is This raises the question whether a registration can be done the conversion on the basis of a General Assembly decision of 02/08/2010, if the conversion agreement was only finalized on 09.03.2010 in Notariatsaktsform.
According to § 2 para 3 line 2 UmwG are on the transferring corporation, except where this Act otherwise provided, the provisions on the merger by absorption (§ § 220 to 221a, § 225a para 2, § § 225b to 225m AktG - except § 225c, para 3 and 4, § 225e para 3, second sentence and § 225j -, § § 226-232 AktG, § § 97, 98 and 100 GmbHG) including the following , Shall apply mutatis mutandis: In place of the Merger Agreement shall enter into force the conversion contract, which is between the corporation and the majority shareholder to complete.
According to § 2 para 4 UmwG the conversion decision shall be authenticated by a notary.
The reference to the appropriate application of the merger regulations now means:
According to § 220 para 1 AktG, the Executive Boards of the merging companies have concluded a merger agreement and prepare a written draft. § 2 para 3 line 2 restricts UmwG this reference an extent that the conversion law, the establishment of a design is out of the question, because it is solely the speech there that the place of the Merger Agreement shall enter into force the conversion contract, which is between the corporation and the majority shareholder to complete. The possibility of drawing up a draft of the conversion contract is not mentioned.
The merger agreement may be certified before or after the meetings of the General Assembly. This should be seen against the background of the merger agreement pursuant to § 222 AktG requires notarial certification, among which the obligation to establish a notarial act is understood. The purpose of the notarial deed is in ensuring the compliance of the merger agreement and merger resolution ( Kalss , fusion-fission-transformation, § 222 AktG, para 4).
§ 2 UmwG points, however, not to § 222 AktG, so is not a separate certification requirement of the conversion contract in Notariatsaktsform required. In accordance with the spirit of the relevant provision of § 221 para 4 AktG, the conversion contract is to be incorporated only in the minutes of the transformation of this decision or to be attached.
This was the relevant part of my job to improve shooting. The General Protocol of 08.02.2010 was attached between the management and the sole shareholder under contract already made transformation. The shortage was only in that in making the conversion contract Notariatsaktsform not participated in both parties. However, since the Notariatsaktsform not required, from the outset was not a ground for refusal in this respect before, so no need to further consider the extent the General Assembly would once again with the completed conversion in Notariatsaktsform contract must be consulted.
But had from the outset only a single member of the signed "contract" existed, would not have to clean up this deficiency by subsequent provision of the signature of the Manager, since in this case, the General Assembly on would have taken a decision not present conversion agreement. The parties could not then claim that had been agreed at least on a draft of the conversion contract and the possibility of establishing a design provides the Transformation Act, as already pointed out, not available.
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