1.2.9. – 01 Vorvertrag zum Abschluss eines GmbH-Gesellschaftsvertrages
VORVERTRAGzu einem GmbH-Gesellschaftsvertrag
Inhalt
1.	Vertragspartner
2.	Vertragsgegenstand
3.	Bestimmungen des Gesellschaftsvertrages
4.	Kosten
1. Vertragspartner
	Antonia Alber, […], Kurt Kerber, […] und Petra Paul, […].
2. Vertragsgegenstand
2.1.	Arthur Hosp, Inhaber des im Firmenbuch eingetragenen Unternehmens „A. Hosp, Buch und Verlagshandel e. U.“ mit Sitz in 6600 Reutte, Untermarkt 2 (Landesgericht Innsbruck FN 41234 z ist am […] verstorben. Mit den Erben nach Arthur Hosp, denen die Besorgung und Verwaltung des Nachlasses obliegt, wurde vereinbart, das eingetragene Unternehmen des Verstorbenen um einen Pauschalbetrag von € 150.000,– zuzüglich Umsatzsteuer sowie den noch gesondert festzulegenden Gegenwert für das Warenlager zu erwerben.
2.2.	Für den Fall des Abschlusses des Unternehmenskaufvertrages und dessen abhandlungsbehördlicher Genehmigung durch das Bezirksgericht Reutte kommen die Vertragspartner nunmehr überein, eine Gesellschaft mit beschränkter Haftung zu errichten. Sie verpflichten sich daher wechselseitig, innerhalb von einem Monat ab dem Tage der abhandlungsbehördlichen Genehmigung des Unternehmenskaufvertrages, welche sie als Mitunternehmer einer Vorgründungsgesellschaft unter Übernahme der persönlichen Haftung für sämtliche aus diesem Unternehmenskaufvertrag sich ergebenden Verpflichtungen abschließen werden, einen Notariatsakt über die Gründung einer Gesellschaft mit beschränkter Haftung zu errichten, für den die folgenden Grundsätze zu gelten haben.
3. Bestimmungen des Gesellschaftsvertrages
	Die Bestimmungen des abzuschließenden Gesellschaftsvertrages sind insbesondere folgende:
i.	Firma:
Alber, Kerber & Paul GmbH
ii.	Sitz:
Politische Gemeinde Reutte in Tirol
iii.	Unternehmensgegenstand:
Buch- und Zeitschriftenhandel
iv.	Stammkapital:
€ 36.000,–; zur Gänze einbezahlt.
v.	Aufteilung der Stammeinlagen:
●	Antonia Alber	€ 12.000,–	
●	Kurt Kerber	€ 12.000,–	
●	Petra Paul	€ 12.000,–	
vi.	Dauer der Gesellschaft:
Die Gesellschaft wird auf unbestimmte Zeit errichtet.
vii.	Das Geschäftsjahr entspricht dem Kalenderjahr.
viii.	Geschäftsführung:
Die Gesellschafterin Antonia Alber wird im Gesellschaftsvertrag – längstens auf die Dauer ihrer Gesellschaftereigenschaft – zur selbständig vertretungsberechtigten Geschäftsführerin der Gesellschaft bestellt. Der Widerruf ihrer Bestellung ist nur aus wichtigen Gründen zulässig.
ix.	Verfügung über die Geschäftsanteile:
Die Geschäftsanteile sind teilbar, übertragbar und verpfändbar. Soll die Verfügung über einen Geschäftsanteil zu Gunsten von nicht an der Gesellschaft beteiligten Dritten erfolgen, ist hierzu eine Zustimmung der übrigen Gesellschafter erforderlich.
x.	Verwendung des Bilanzgewinnes:
Über die Verwendung des Jahresergebnisses entscheidet die Generalversammlung mit einfacher Mehrheit.
xi.	Kündigung des Gesellschaftsverhältnisses:
Die Gesellschaft kann unter Einhaltung einer sechsmonatigen Kündigungsfrist zum Ende eines jeden Geschäftsjahres aufgekündigt werden; eine erstmalige Kündigung ist zum […] zulässig.
xii.	Gründungskosten:
Die Gründungskosten werden bis zu einem Höchstbetrag von € 7.000,– von der Gesellschaft übernommen.
4. Kosten
	Die Kosten der Errichtung dieses Vorvertrages zu einem innerhalb eines Jahres abzuschließenden Gesellschaftsvertrag sind Gründungskosten der GmbH. Unterbleibt deren Errichtung, so hat jeder Vertragspartner ein Drittel dieser Kosten zu übernehmen.
[Ort, Datum, Unterschriften]
 1.2.9. – 02 Gesellschaftsvertrag in englischer Sprache
CONTRACT OF CO-PARTNERSHIP
Content
1.	Shareholders
2.	Company and head office
3.	Object of the company
4.	Registered capital, capital contributions
5.	Term of existence of the company, financial year
6.	Executive bodies of the company
7.	Director
8.	Representation and portrayal of the company
9.	Special rights relating to the appointment of a director
10.	The general meeting of the shareholders
11.	Shareholders’ resolutions
12.	Purchase option
13.	Access to shares in the business
14.	Succession
15.	Termination by a shareholder
16.	Procedure for take over rights
17.	Calculation of the take-over price
18.	Accounts
19.	Appropriation of profit for the year
20.	Court of arbitration
21.	Minority rights
22.	Set up costs
23.	Communications
24.	General conditions
25.	Invalidity of individual clauses
26.	Power of attorney
1. Shareholders
	ABC Medical Devices Ltd., […], represented by the Managing Director with sole power of attorney, Clive C. Cunningham; Andrea Alber, commercial salaried employee; and Paul Peer, commercial salaried employee; have this day established a private limited company in the sense of the law on private limited companies of 6. 3. 1906 (sixth of March one thousand nine hundred and six) announced in the „Reichsgesetzblatt“ No 58 (fifty-eight) with all supplements
2. Company and head office
2.1.	The name of the company shall be ABC-Medizinische Produkte GmbH. For the term of existence of this collaboration the partner known as „ABC Medical Devices Ltd.“ shall be entitled to manage that part of the company which is known as „ABC“– until at least […]. If, for whatever reason, „ABC Medical Devices Ltd.“ withdraws as a shareholder from the said company before 31.12.2019, it shall undertake in accordance with § 24 para. (2) UGB to grant its express consent to the continuation of the company until 31.12.2019.
2.2.	The head office of the company shall be Reutte in Tirol. The company shall be entitled to establish branches, premises and agencies both at home and abroad.
3. Object of the company
3.1.	The object of the company shall be to conduct business which is not subject to authorization in particular in the field of medical products in accordance with § 94 Z 33 Gewerbeordnung (GewO) 1994.
3.2.	Moreover, the company shall be entitled to carry out all acts, transactions and measures which are necessary or which appear to be necessary to achieve the company’s aims, such as, in particular:
i.	The acquisition, lease of or participation in other companies with identical or similar commercial aims and the take-over of the management and representation of such firms and companies;
ii.	The establishment and operation of branches, premises and agencies both at home and abroad;
iii.	The take-over of appropriate commercial representation;
4. Registered capital, capital contributions
4.1.	The registered capital of the company shall be € 35,000.00 (thirty five thousand euro) and shall be provided by the shareholders through the following capital contributions:
Shareholders	Shall provide a capital contribution of €	Hereupon paid €	This corresponds to a share of in %	
ABC Medical Devices Ltd.	7.000,–	7.000,–	20	
Andrea Alber	12.250,–	12.250,–	35	
Paul Peer	15.750,–	15.750,–	45	
	35.000,–	35.000,–	100	
4.2.	Immediately upon signature of the present contract the capital contributions shall be paid in by the directors to the company account which is to be set up. There shall be no obligation to make further contributions.
5. Term of existence of the company, financial year
	The company shall be established for an indefinite period. The first financial year shall begin on the day of the company’s being registered in the company register to be set up the registrar of companies and shall end on the subsequent 31. December) of the year of registration. Future financial years shall correspond to the calendar year. Subject to the agreement of the tax authorities, the general meeting of the shareholders may agree a financial year which is at variance with the calendar year.
6. Executive bodies of the company
	The executive bodies of the company shall be the Directors and the General Meeting of the Shareholders.
7. Director
7.1.	The company shall have one Director. At least one Director must be normally domiciled in Austria. The Director shall be responsible for the management of the company and shall represent it in and out of court. In exercising his office, the Director shall have regard to statutory and contractual conditions, any bye-laws and the directives of the general meeting of the shareholders.
7.3.	As independent Director with power of attorney, but only for such time as he shall belong to the company, the following person shall be appointed Paul Peer. It shall be permissible to revoke his appointment only for compelling reasons. These shall include the reasons for dismissal listed under § 27 AngG.
7.5.	Except it be with the consent of the company, the Director shall not carry out business on the company’s premises for himself or for outsiders, nor shall he belong to a company in the same business sector as shareholders with personal liability, as Director, member of the Board or of the Supervisory Board.
8. Representation and portrayal of the company
8.1.	Only the Director shall represent or portray the firm or issue any declaration of intent. If two or more Directors are appointed, their right to represent the company shall be established at the time of the decision to appoint them. The representation of the company by a Director together with a joint signatory or an authorized signatory shall be permissible. The responsibilities of the Directors shall extend to all transactions which are entailed by the normal business activities of the company.
8.2.	Before undertaking any important measures or transactions which exceed the normal working operations and the annual budget determined by the general meeting of the shareholders, the agreement of the general meeting of the shareholders shall be required.
9. Special rights relating to the appointment of a director
	ABC Medical Devices Ltd. and Andrea Alber shall have the special right to nominate a Director. The said shareholders may therefore – independently of one another – demand at any time that a person named by them be appointed as an additional director and that the general meeting of the shareholders make a decision in this regard. The Director appointed in this manner shall have independent power of attorney. For the term of the period in which the office of Director is exercised, the person named by ABC Medical Devices Ltd. shall be released from a prohibition on competition under § 24 GmbHG.
10. The general meeting of the shareholders
10.1.	The decisions reserved for the shareholders in accordance with the law and the present contract of co-partners shall be taken at the general meeting of the shareholders or by written agreement under § 34 GmbHG. The general meeting of the shareholders shall take place at the company’s head office.
10.2.	In addition to the cases set out in law, a general meeting of the shareholders shall be called if the good of the company so requires or if it is requested by one of the shareholders who must state its purpose and who considers it to be necessary for the interests of the company. The special right to call a general meeting at any time shall be granted to ABC Medical Devices Ltd.
10.3.	There must a minimum period of 14 (fourteen days) between the day on which the invitation to the general meeting is posted and the day on which the general meeting is to be held. The invitation shall be deemed to be valid when registered letters are sent to shareholders’ addresses as last known to the company. The summons shall include notice of the agenda. All necessary documents relating to items on the agenda shall be enclosed.
10.4.	A general meeting of the shareholders which is not called in accordance with the regulations may only pass resolutions if all shareholders are present or if they are legally represented and if none of them raises objections to the holding of the meeting.
10.5.	The general meeting shall be deemed quorate if all shareholders are present or legally represented. If – for any reason whatsoever – the general meeting should not be quorate, a new general meeting with the same agenda shall be called for which there shall be a minimum period of 14 days between the written invitation and the day of the general meeting. The general meeting thus postponed and reconvened by registered letter is quorate independent of the level of original capital of those present or the voting rights represented. The invitation shall draw attention to this legal consequence.
10.6.	Each shareholder may also be represented in the general meeting by a person empowered by him or by a shareholder who observes his voting rights. The power of proxy to represent and to exercise voting rights shall be set out in writing as special powers and must be shown to the chairperson at the beginning of the general assembly.
11. Shareholders’ resolutions
11.1.	Unless otherwise specified by laws governing private limited companies or by a clause specifically determined in this contract, the general meeting shall pass its resolutions by a simple majority of the votes cast.
11.2.	The following resolution may only be passed unanimously
i.	Alterations to the present contract of co-partnership including any alteration to the object of the company;
ii.	Resolutions concerning agreement on profit and loss pooling, affiliation and similar contracts;
iii.	Agreement on devolution, transfer, division or encumbrance on a share of the company, concession of a sub-partnership and introduction of a sleeping partner;
iv.	Resolutions relating to mergers and measures in accordance with conversion tax law and similar norms;
v.	The appointment and dismissal of directors and authorized signatories;
vi.	Any alteration to the original capital;
vii.	The introduction of further shareholders;
viii.	Resolutions relating to the dissolution of the company and the termination of the company’s activity or a major part thereof;
ix.	The appointment of liquidators.
11.3.	The shareholders shall have voting rights in their own affairs, unless anything to the contrary is specifically stated in private limited company law or in this contract. Notwithstanding the conditions in § 4. (Original capital, capital contributions) and in § 29. (Appropriation of profits) every shareholder shall have voting regards regardless of the level of his/her money invested.
11.4.	Any resolution passed relating to the increase in the duties of shareholders as specified in this contract of co-partnership or the reduction of rights granted in the present contract of co-partnership may only be deemed valid with the agreement of the shareholder affected.
12. Purchase option
	If a shareholder wishes to relinquish his share in the business or a part of his share in the business, then all shareholders shall have a purchase option in accordance with the conditions of §§ 1072 ff ABGB. All shareholders shall furthermore have the right to enter into the contract of transfer of which it shall be proven that have been informed with a period of one month from the serving of notice instead of the chosen successor to the shareholder wishing to make the transfer.
13. Access to shares in the business
13.1.	Shares in the business may be divided, transferred and pledged. Furthermore the following conditions shall apply only insofar as no use is made of the purchase option under § 12. Any pledging, limitation of transfer or usufruct of parts of the business or parts thereof shall require approval by a resolution of the shareholders if it is to be deemed valid
13.2.	The transfer of parts of the business or of parts thereof
●	shall require approval by a resolution of the shareholders if it is to be deemed valid unless otherwise agreed
●	to co-proprietors and legitimate heirs of the person transferring shall not require approval by a resolution of the shareholders for its validity.
13.3.	In the case of resolutions passed relating to the approval of encumbrances and transfers, the shareholder wishing to make the transfer or the encumbrance shall be entitled to a voting right. If in the sense of § 77 GmbHG (Paragraph seventy-seven of the law relating to companies with limited liability) legal approval for the transfer has not been granted, the remaining shareholders shall have a right of acquisition in proportion to their capital contributions made. In the case of the assertion of the right of acquisition, the shareholder wishing to make the transfer shall undertake to transfer his share of the business or parts thereof to those entitled to take it over.
13.4.	If one the remaining shareholder does not wish to exercise his right himself, this shall be transferred equally to the remaining shareholders. If no shareholder exercises his right of acquisition, one of the shareholders may name to the shareholder wishing to make the transfer a third party who is willing to take on the part of the business belonging to the shareholder wishing to make transfer under the conditions of § 77 GmbHG. In this case, the shareholder wishing to make the transfer shall undertake to transfer his part of the business the third party so named.
14. Succession
	Shares in the business shall, as matter of principle, be freely inheritable. The exercise of rights over a share in the business by several heirs who are co-beneficiaries may only be carried out in relation to the company by a single common representative. If in the case of the death of one of the shareholders with regard to the part of the business or a part thereof persons are named as successors who are not yet shareholders or descendants of the deceased, the remaining shareholders shall be entitled to take over the part of the business that has become available in proportion to their share in the company by analogy with § 77 GmbHG. The legal successors shall be required in the case of the assertion of the take-over right to transfer the available share of the business to those with take-over rights.
15. Termination by a shareholder
15.1.	Each shareholder shall be entitled to terminate the partnership by giving three months’ notice of termination before the end of a calendar year. The period of notice shall be deemed to have been observed if written notice of termination shall have been posted to the company and the shareholders no later than the last day before the beginning of the three-month period.
15.2.	Termination by one of the shareholders shall not result in the dissolution of the company, if
●	The shareholder holding the purchase option under § 12. and thereafter
●	The remaining shareholders take over the share of the business of the terminating shareholder in proportion to their capital contributions or name a third party as the person to take over.
15.3.	Termination shall not be admissible before […] or – if the financial year shall have been altered – before the accounting date which falls in the year […].
16. Procedure for take over rights
16.1.	The Directors shall inform the shareholders of the existence of their contractual right to acquisition. These take-over rights shall be exercised within a maximum of 30 (thirty) days after written notice shall have been posted. The rights shall be deemed to have been exercised within the period if notice of exercise shall have been posted to the vendors and the Directors by registered letter no later than the last day of this 30-day period. If within the specified period a take-over right is only partially exercised or is not exercised at all, it shall pass to the remaining beneficiaries in proportion to their share in the partnership („right of acquisition“) of which they must also be informed by the Directors.
16.2.	If the take-over right is not exercised by any shareholder and if no third party is named by the shareholders to take over the whole share in the company, the consequences shall be as follows:
●	in the case of an intended transfer, that the shareholder wishing to make the transfer may transfer the share of the business in question or parts thereof.
●	in the case of a sell-out or of insolvency, that the relevant procedures shall be carried out and the share of the business in question shall be realized;
●	in the case of termination: the dissolution of the company
●	in the case of an encumbrance, that the shareholder should remain;
●	in the case of succession, the legal successors should remain;
●	in the case of expulsion that the affected party should remain in the company with his share of the business, unless he terminates his relationship with the company for his part.
17. Calculation of the take-over price
17.1.	Unless the law or the present contract specifies otherwise between the surrendering shareholder and the shareholder taking over in the case of a sell-out or insolvency if no agreement has been reached between the parties involved in the case of the exercise of the contractual right of acquisition within 30 days the purchase price the take-over price shall be calculated on the basis of the value of the company on that accounting day preceding the time of the coming into existence of the right of acquisition.
17.2.	The calculation of the value of the company shall be carried out in accordance with Expert Report No. KFS BW 1 of the Institute for Business Administration and the Organisation of the Chambers of Business Trustees. If this report is replaced by another report, the current version of the report at the time shall be referred to in making the calculation.
17.3.	Payment of the transfer price calculated in accordance with §§ 17.1. and 17.2. shall be made within 6 (six) months from the time of transfer, in which case reference shall be made to published index on Consumer Prices 2000 published by the Austrian Central Office for Statistics. If this index should cease to appear, the index replacing it shall be valid, and if there should be no such index. a similar index according to the choice of the shareholder wishing to make the acquisition.
17.4.	The transfer price shall be raised or lowered in proportion as the above-mentioned Consumer Index is higher or lower on the day of payment in relation to the Consumer Price Index valid for the day of the transfer.
17.5.	Every shareholder shall therefore be required, in the case of an intended transfer of his share in the business or part thereof to offer it to the remaining shareholders giving notice of the contractual conditions and of the prospective person taking-over. The shareholders shall be entitled to a period of 30 (thirty) days for the acceptance of the offer. If a shareholder makes no use of his right of acquisition, it shall accrue to the remaining shareholders wishing to make acquisition in proportion to their capital contributions.
18. Accounts
	It shall be the responsibility of the Directors to draw up the annual financial statement within the first five months of each financial year for the previous year. The directors shall be allowed to use the existing rights to choose between alternative valuation bases or the valid investment privileges according to the measure of their profitability. There shall be sent to every shareholder no later than at the time of invitation to the general meeting a copy of the annual financial statement together with any appendices and – if so required by law – a status report. Every shareholder may have sight of the books and documents of the company between the time of receiving the invitation and the holding of the general meeting to which it refers.
19. Appropriation of profit for the year
	From the year’s results for the company, 50 % (fifty per cent) shall be transferred to the revenue reserves. The second half of the year’s results, namely 50 % (fifty per cent) shall be retained to be distributed among shareholders, unless the general meeting decides otherwise. The profits distributed shall be apportioned in accordance with the ratio of capital contributions as per § 4.
20. Court of arbitration
20.1.	For all disputes arising out of this contract of co-partnership between the company and the shareholders and between the shareholders themselves – if assignation to a court of arbitration is admissible – the court of arbitration set up under § 577 of the Civil Process Ordinance (ZPO) shall have jurisdiction. This shall also apply to disputes following the resignation of shareholders and to disputes concerning the existence or non-existence of the present contract on co-partnership, and on dissolution, nullity, or any other legal consequence.
20.2.	If one party wishes to appeal to the court of arbitration, they shall inform the company and the opposing party and simultaneously name the arbitrator appointed by them in the letter of notice. Arbitrators shall be professional lawyers, business trustees, company consultants or notaries.
20.3.	The opposing party – even if it consists of several persons – shall name the arbitrator to be appointed by them within 14 days from the date of posting of summons. If he is not appointed within this time, the second arbitrator shall be determined by the President of the Chamber of Lawyers for Tyrol on application by the party summonsing.
20.4.	Within 14 (fourteen) days from the naming of the arbitrator for the opposing partly the arbitrators appointed by the parties in dispute shall be obliged to appoint a chairperson who must be a lawyer. If no agreement can be reached, the President of the Chamber of Lawyers for Tyrol shall be called upon to appoint a chairperson, and that decision shall be final. The conditions attached to this contractual point shall apply analogously in the case of a replacement appointment. The agreement of the parties in dispute on one person as arbitrator or on a two-member court of arbitration shall be admissible.
20.5.	The seat of the court of arbitration shall be […]. The arbitration process shall be carried through within the shortest time possible. The decision of the court of arbitration shall be binding. The basis for the arbitration award shall be given and shall contain an award of costs. In this, the same principles shall apply as in a civil process. The court of arbitration shall apply Austrian law. Any shareholder newly entering the company shall expressly submit to the conditions of this arbitration contract.
21. Minority rights
	All shareholders shall be entitled to minority rights as determined by law under § 37 para 1 GmbHG (convention right), § 38 para 3 GmbHG (additions to the agenda), § 45 GmbHG (appointment of auditors), § 48 GmbHG (assertion of claims for damages) and § 89 GmbHG (appointment of liquidators) if their capital contribution amounts to one tenth of the total capital contributions.
22. Set up costs
	All costs, fees, taxes and duties connected with the set-up and registration of the company up to a maximum amount of € 5,000.00 (five thousand euro) shall be borne by the company. Set-up costs to the actual level of expenditures shall, with the limitation on the amount specified, be allocated as expenditure in the first profit and loss calculation as a component of the annual statement of the company. The company shall bear all costs arising as a result of future alterations or additions to the present contract.
23. Communications
	Communications relating to the legal relationship between the company and the shareholders and between the shareholders themselves shall be carried out by means of a registered letter to the last address known to the company or by recorded delivery letter.
24. General conditions
24.1.	Unless otherwise specified in the current version of this contract, the following shall apply to the company:
●	the legal statutes relating to limited liability companies dated 6. 3. 1906 (sixth of March one thousand nine hundred and six), promulgated in the „Reichsgesetzblatt“ No. 58 (fifty-eight), with all supplements;
●	the regulations of the commercial law code relating to accounting and
●	all other relevant statutory regulations.
24.2.	All agreements between the shareholders or between the shareholders and the limited liability relating to the company relationship shall be valid only if set out in writing insofar as notaries authentication is not prescribed by law. This shall also apply to any waiver on the requirement that everything be set out in writing.
24.3.	The shareholders shall state that there are no verbal agreements in addition to the present contract. As many copies of this contract as required may be supplied to all shareholders, directors, future liquidators and the company itself at cost to the person or persons requesting them.
25. Invalidity of individual clauses
25.1.	If any clauses of the present contract – for whatever reason – become ineffective in law or invalid, the validity in law of the remaining clauses of the present contract shall be in no wise affected. In such a case, the shareholders shall at the next general meeting pass a resolution to alter or complete the legally ineffective or invalid part of the contract in such a way that the commercial or legal intentions inherent in the clause are met and such that they correspond to the overall purpose of the contract.
25.2.	If there is any doubt as to the interpretation of individual clauses of the present contract, the interpretation shall be taken in such a way that the assets of the company are, as far as possible, protected.
25.3.	The condition set out in § 25.1. shall also apply if, on conclusion of the present contract, there is a loophole in the contract which requires to be filled. Each shareholder shall be bound to make alterations to the contract, which the aim of the company or loyalty to the shareholders mutually requires.
25.4.	This Share Purchase Agreement has been made in the English and German language. The German version takes priority over the English version. In case of any discrepancy between the English and the German version the wording of the German version shall prevail, except there are English terms in brackets.
26. Power of attorney
	The shareholders shall authorize and empower Mag. Manfred Müller, *, advocate, to decide on and make any alterations to this contract in their name and with legal force, if these are necessary for the registration of the company in the company register of the regional court acting as the commercial court for Innsbruck and if they correspond to their joint will. Mr. Manfred Müller shall be empowered, to make petitions, to issue certificates in any form, to accept service of process and above all to undertake everything which is necessary to ensure rapid registration. This authority may wholly or partially transfer to a third party.
[Place, Date, Signatures]