On 08/26/2010 was the commercial register court submitted with the application of the social contract, 30.11.2007, founded J ** E ** GmbH. The capital of this
GmbH in the amount of € 228,000 will be here by the Shareholders J ** E ** with a capital contribution of € 150,000 and the shareholders of K ** S **, G ** S ** taken and L ** F ** with initial contributions of € 26,000 per .
The shareholders of J ** E ** assumed capital contribution of € 150.000 has been applied by this entirely in the form of a contribution in kind, by introducing three agricultural properties. The relevant land transfer administrative approval is available. The partners
K ** S ** and L ** F ** were ordered in independent directors authorized to represent it.
was in advance about the request of the founding shareholders by the Company Registry to examine the value of a contribution in an accounting firm in accordance with § 6 para 4 GmbHG ordered to Sacheinlagenprüferin.
confirmed in the written kind examination report this examiner that the formation process is in accordance with the law, the value of in the way of a contribution in the applied capital contribution to the issue price achieved for this part of the capital, and neither the founder nor any member of the Board a special advantage or have stipulated for the establishment or while preparing for a compensation or reward.
is also a founding Report before the shareholders in which they report on the details of the foundation, go into the properties of a contribution made to refer to the report of the Sacheinlagenprüferin respect and eventually also confirm that neither the directors nor the founder of special benefits or compensation for the establishment of the have insisted the company or its preparation.
The Managing Director shall have a written report on the details of the establishment in which they hold at the outset, that as a basis of its assessment of the social contract, a founding partner of the report and the audit report of the auditor's founding have used.
The founding shareholders of the report was signed by the partners K ** S **, G ** S ** and L ** F **, where the K ** S ** shareholder for himself and by relying on a special power of attorney Shareholder J ** E ** under prepared for this has.
This special power of attorney provides in relevant part as follows:
J ** E ** authorized hereby for himself and his successor Mr K ** S ** with the submission and receipt of all documents in connection with the formation of the GmbH and its Registration for the commercial register are required. The authorization also covers the implementation of changes this contract with respect to the J ** E ** in society contributed and introduced real estate ... and any changes that are necessary in order to register the company in the commercial book.
is to these audit reports noted : Are
Where, under the social contract capital contributions not paid in cash and stock corporation law on the establishment of non-cash contributions are met, half of clause of § 6 para 1 GmbHG does not apply, in which case , § § 20, 24 -27, 29 para 2 and 4, 39 - 44 and 25 para 4 AktG in consideration of § 271 para 2-4 UGB be applied accordingly.
Since in this case more than half of the share capital will be applied as a contribution in kind in the transfer of property is, for the registration of the GmbH, ie the compliance of corporate law, establishing rules required.
from those required under § 24 AktG written contribution report is therefore the obligation of the shareholders or founders to reimburse up report that sets out the essential facts of the adequacy of the inserted or assumed objects benefits provided, or enters into the assessment of the contribution . It's in the report to address all the factors that affect the value of the contribution may have.
are also in accordance with § 24 para 3 AktG still Indication of whether there are trusts or granted special benefits and establishing rewards for the benefit of managers ( van Husen in Straube, GmbHG § 6a Rz 273 f).
This report is to be founded by all the founders (shareholders) personally and by hand to sign . A legal representative for the refund of this report is excluded. Although members may use the services of the foundation audit consultants or agents, which, however, nothing to the obligation personal signature power changes ( Heidinger in Jabornegg / Strasser , AktG § 24 section 3).
Because of the reference to § 25 para 1 AktG, an audit report of the Managing Director is required, which was submitted to the case.
However, both results of this audit report and the report of the founding members that the audit reports of the partners and the manager only after receipt of the audit report of the Sacheinlagenprüferin have been created. A kind of proper review report by the court-appointed examiner has, however, the report of the Board members, ie the managing director to review ( Heidinger supra, § 26 para 2 and 6 with further references). Therefore, this report can logically be made legally until it has considered the report of the managers at all the circumstances required to be audited, with the result that the audit report on the Sacheinlagenprüferin must be incomplete.
for the registration of the GmbH is therefore still necessary
- the handwritten signing the report be founded by all partners
- the addition of the test report of the court-appointed Sacheinlagenprüferin (with reference to the audit report of directors)
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