In Kind Contribution Contract Between the Investors Mrs. Dzezana Karahodza, née Adzemovic, born on the 13th of May 1969, Resident of Waiblinger Straße 34, 70372 Stuttgart, and Dr. med. Orhan Karahodza, born on the 19.th of November 1969, Resident of...
EXHIBIT 10.4
Working draft
In Kind Contribution Contract
Between the Investors
Mrs. Dzezana Karahodza, née Xxxxxxxxx,
born on the 13th of May 1969,
Resident of Xxxxxxxxxx Xxxxxx 00, 00000 Xxxxxxxxx,
and
Dr. med. Orhan Karahodza,
born on the 00.xx of November 1969,
Resident of Xxxxxxxxxx Xxxxxx 00, 00000 Xxxxxxxxx,
- as Communal Property Ownership in accordance with Bosnian law -
and the company which is recorded in the Trade Registry of the Xxxxxxxx Xxxxx xx Xxxxxxxxxxxx, XXX 00000, as
Beatmungspflege 24 GmbH
Ludwigshafen Headquarters
Xxxxxxxxxxxxx 0, 00000 Xxxxxxxxxxxx
Represented by
Dr. med. Orhan Karahodza,
born on the 00.xx of November 1969
as sole Managing Director,
exempt from the limitations of §181 of the German Civil Code (BGB)
A.
Preliminary Remarks
| 1. | The sole shareholder of the company recorded in the Trade Register of the Xxxxxxxx Xxxxx xx Xxxxxxxxxxxx, XXX 00000, as |
Beatmungspflege 24 GmbH
2014okt24
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with their headquarters located in Ludwigshafen, has prepared the following report on the capital increase against contribution in kind for notarisation:
| 1. | TOP 2: Capital Increase 2 |
| (1) | The share capital of the company will be increased from EUR 26,000.00 by EUR 26,000.00 to EUR 52,000.00 through the issuing of 26,000 shares in the company at a nominal value of EUR 1.00 per share (company shares no. 26,001 to 52,000). |
| (2) | For the acquisition of the new company shares, parties who purchase the new company shares as joint property in accordance with Bosnian Communal Property Law shall be approved. |
| (3) | The new company shares receive a share of the current entire financial year earnings. |
| (4) | The contributions to the new company shares are to be performed in such a way that Xxx. Xxxxxxx Xxxxxxxxx contributes her individually operated business which is not registered in the Trade Register based at Xxxxxxxxxx Xxxxxx 00, 00000 Xxxxxxxxx, under the designation “Premium Pflegedienst Pflegeland”, with all its assets and liabilities, privileges, debts and claims, liabilities and obligations, as well as legal relationships with contractual and commercial effect, into the company at the start of 1st of July 2014. The contributions shall take place at book value for tax purposes in accordance with §20 paragraph 2, sentence 2 of the Reorganization Tax Act. |
It shall be established, that the company for property rights purposes shall belong as part of the joint property between the parties which makes up the communal property in accordance with Bosnian law.
| (5) | Legally and commercially belonging to this company is the apartment Bad Cannstatt, Stuttgart with the registration number 19,210, recorded in the Land Register and the partial property rights of 100/1000 co-ownership share of the property Fist. 3667, Xxxxxxxxxx Xxxxxx 00 0 of 37m2, connected with the individual property which is designated as Apartment 2 in the division plan together with the shop located on the ground floor as well as 1 storage room located in the basement. A partial property share of 1/2 of this property with the encumbrances listed in the |
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| Land Register and the obligations and duties relating to these encumbrances shall be brought into the company as a credit (§ 272 paragraph 2, section 1 of the German Commercial Code (HGB)). |
| (6) | This contribution in kind is of the nominal value of the new company shares numbered 26,001 to 52,000 at a value of the amount of the increase in share capital, so that a total of EUR 26,000.00 is credited. Following the exercising of all due care and diligence by the managing director of the company, should the contribution in kind be evaluated as having a higher value in the annual financial accounts, the difference amount shall transferred to the capital reserves as a premium in accordance with §272 paragraph 2, sentence 1 of the HGB. |
| 2. | The investor declared the acquisition of the new company shares today. |
B.
Contribution Agreement
The parties to the contract conclude the following contract for the performance of the contribution in kind duties.
§ 1
Subject of the Contribution In Kind
| (1) | The investor shall transfer the individually operated business “Premium Pflegedienst Pflegeland” of Xxx. Xxxxxxx Xxxxxxxxx of Xxxxxxxxxx Xxxxxx 00, 00000 Xxxxxxxxx, with all its assets and liabilities, privileges, debts and claims, liabilities and obligations, as well as legal relationships with contractual and commercial effect into the company at the start of 1st of July 2014 in return for the payment of the company shares described in the report on the capital increase. The contributions shall take place at book value for tax purposes in accordance with §20 paragraph 2, sentence 2 of the Reorganization Tax Act. |
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| (2) | The following apply for the transfer of assets and liabilities to the acquiring company: |
| a) | All individual trade investments of fixed and current assets shall be transferred to the GmbH, especially those which are listed in Appendix 1 to this agreement. |
| b) | All liabilities (liabilities and debts) of the sole proprietor company shall be transferred to the GmbH, especially those which are listed in Appendix 2 to this agreement. |
| c) | All further legal positions and objects which cannot or do not require to be included on the balance sheet, agreements, employment contracts and other rights and duties shall be transferred to the GmbH. In particular, the contracts listed in Appendix 3 to this agreement, as well as any other tenancy, leasing and supply agreements, operational management agreements, concession agreements, offers and other legal statuses. |
| d) | As a result of the operations transfer, all employment contracts are transferred to the GmbH in accordance with §613a of the BGB. |
| e) | Should assets, legal statuses, objects or other rights be sold between the deadline for contributions, the 1st of July 2014, and today, a substitute shall stand in its place. Should the investor acquire assets, legal statuses, objects or other rights for the company in the period of time mentioned above, these shall hereby also be transferred to the GmbH. |
| f) | Assets, liabilities and employment contracts, which are not listed in the attached appendices, shall be transferred to the GmbH should it in the least possible way be associated with the operations of the investor. This applies in particular for intangibles or assets, concluded employment contracts and accrued liabilities by the investor up until today as well. |
| g) | So long the transfer of assets or liabilities or agreements, employment contracts or other rights and duties should no longer be legally possible, especially where the required third party approval for this purpose cannot be procured, the parties shall operate as if the transfer to the GmbH had taken place. The investor shall try to receive the required approvals to the best of his or her ability. |
| h) | The individual assets and rights shall be taken over by the GmbH inclusive of any possible encumbrances in the condition in which it is today. Insofar as it is legally permissible, each guarantee made by the investor in regards to this contribution in kind shall be excluded. In particular, claims and rights of the GmbH against the valuation, the characteristics and portfolio of the assets transferred by the investor irrespective of the type and irrespective of the legal basis are excluded. This exclusion of claims does not apply for claims which are based on malicious or intentional behaviour of the investor, and claims |
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based on the liability for shortfall in accordance with §56 paragraph 2 in conjunction with §9 of the German Limited Liability Company Law.
| (3) | In the event of doubts in regards to the scope or the association of asset positions, legal relationships etc. transferred with this certificate, the GmbH is entitled to a right of determination in accordance with §315 of the BGB. |
§ 2
Transfer of the company
| (1) | The parties to the agreement agree that the ownership and the direct possession of the movable property shall be transferred to the GmbH. Should be the GmbH not be in direct possession of the property, the right to recovery of the investor shall be assigned to the GmbH. The GmbH shall hereby accept the transfer of ownership and direct possession´, as well as the assignation of the right to recovery. |
| (2) | The parties to the agreement agree, that the existing liabilities shall be taken over by the GmbH at midnight on the 30th of June 2014. As far as it is possible, the transfer shall take place by way of an internal assumption of debt, otherwise the GmbH shall indemnify the investor in respect to the liabilities and to satisfy the creditors in a timely manner. |
| (3) | The parties to the agreement agree, that the GmbH instead of the investor shall contractually enter into all contractual relationships of the company being contributed coming into force on the 1st of July, 2014. Should the third party approval required for this purpose not be able to be obtained, the parties to the agreement shall correspondingly be placed in an internal relationship. |
| (4) | The GmbH is hereby authorized, to deliver and accept required or appropriate statements at the exercise of their discretion, as well as to perform legal acts, which are in conjunction with the contribution of the company to the GmbH. The GmbH is exempt from the limitations of §181 of the BGB and entitled to transfer this |
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| authorization in part or in full or to issue sub-authorization with exemption to the limitations of $181 of the BGB. |
§ 3
Granting of Shares.
| (1) | In return for the above transfer of assets to the GmbH, the investor shall receive 26,000 company shares in the acquiring company at a nominal value of 1.00 EUR each (company shares numbered from 26,001 to 52,000). |
The new company shares entitle a claim to the balance sheet profit of the GmbH attributable to them for the entire current financial year.
| (2) | The transfer shall take place using the book values as at the 30th of June 2014 for trade and tax purposes. The difference between this value of the assets transferred to the acquiring company and the nominal amount of the new company shares granted to the acquiring company shall be transferred to the capital reserves of the acquiring company in accordance with §272 paragraph 2, sentence 1 of the HGB. The investor shall receive nothing further in return from the GmbH, especially no cash payout. |
(3)
§ 4
Consequences of the transfer for employees and their representatives
The transfer of the company operated by the investor shall lead to a transfer of operations in accordance with §613a of the BGB.
With the transfer coming into force (i.e. upon the signing of this contract), all employment contracts with all rights and duties shall be transferred to the GmbH. The parties to the agreement shall inform the employees of the company in accordance with §613a paragraph 5 of the BGB.
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§ 5
Severability Clause
Should individual clauses of this agreement become invalid or be unfeasible, this shall not affect the validity of the remaining clauses. The invalid or infeasible provision shall be replaced by a provision agreed upon by the parties to the agreement which comes as close as possible to the economic effect of the invalid or unfeasible provision.
C.
Special regulations for the contribution of dwellings and partial property ownership.
§ 1
Transfer of title
| 1. | (1) Dr. med. Orhan Karahodza and Xxx. Xxxxxxx Xxxxxxxxx are in communal property ownership in accordance with Bosnian law as owners of the property of Bad Cannstatt which is registered in the Apartment and Condominium Register (Land Registry Stuttgart - Bad Cannstatt) with the registration number 19210 BV as an apartment and condominium of |
| 2. | 100/1000 co-ownership share of the property |
Fist. 3667, Xxxxxxxxxx Xxxxxx 00 0 of 37m2,
| 3. | connected with the individual property which is designated as Dwelling 2 in the division plan together with the shop located on the ground floor as well as 1 storage room located in the basement. |
| 4. | Directly before the completion of the present contract, half of the co-ownership shares were already abandoned by Beatmungspflege 24 GmbH. |
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| 5. | The owners and Beatmungspflege 24 GmbH, registered in the Trade Register of the Xxxxxxxx Xxxxx xx Xxxxxxxxxxxx, XXX 00000, with its headquarters located in Ludwigshafen, both agree that the ownership of the remaining half of the co-ownership share of the apartment and condominium complex shall be transferred to Beatmungspflege 24 GmbH, so that they become the sole proprietor of this property. |
| 6. | (2) The owner allows, and Beatmungspfleger 24 GmbH approves the entry of the change of ownership of the half co-ownership share. |
| 7. | (3) The certifying notary shall be assigned to immediately submit the application to the Land Register for execution, as soon as the clearance certificate from the Tax Office - Land Transfer Tax Division, is available. |
§ 2
Compensation in return
Beatmungspflege 24 GmbH does not owe the owners anything in return. The transfer of ownership takes place as a credit in accordance with §272 paragraph 1, sentence 1 of the HGB on the occasion of the increase in share capital of the GmbH concluded today of EUR 26,000.00 from 26,000.00 to EUR 52,000.00.
§ 3
| 8. | (1) The transfer of the direct possession of the parcel of land in the agreement shall take place with immediate effect. Contractually the transfer of possession shall come into effect on the 1st of July 2014. |
| 9. | (2) All development charges and further charges as noted in §§ 127, 135 of the German Building Code, as well as charges on the basis of the municipal rates act |
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which are already required, are to be borne by Dr. med. Orhan Karahodza and Xxx. Xxxxxxx Xxxxxxxxx. All other charges which are required as per the conclusion of this agreement are to be borne by the GmbH.
§ 4
Guarantee
| 10. | (1) The liability for material defects is excluded as far as legally possible. Certain characteristics of the property do not form part of the agreement and no payment shall be made in respect of them. |
| 11. | (2) No encumbrances are listed in section 2 of the Land Register. The land charge of EUR 110,000.00 at the district savings bank for the encumbrance in section 3, number 4 of the Land Register, is to be borne by the GmbH. All remaining ownership rights of the land charge will hereby be assigned to the GmbH with immediate effect and be accepted by the GmbH. The land charge is valued at still being around EUR 110,000.00, for which the GmbH has already declared the exemption of the acquisition of debts for half of the valuation amount on the basis of the contribution in kind immediately prior to the drawing up of this agreement. The remaining liabilities are to be equally taken over by way of assumption of debt coming into contractual effect on the 1st of July 2014. The GmbH will immediately approach the creditors, in order to get their approval for the assumption of debt. Should the creditor not issue the approval required for this purpose, the GmbH is committed to Dr. med. Orhan Karahodza and Xxx. Xxxxxxx Xxxxxxxxx to reimburse the creditor in a timely manner. The same applies, should the creditor refuse the approval. |
| 12. | (3) The property is to be rented out to the GmbH. Rent or lease or other usage agreements to third parties do not exist. The rental agreement shall be considered to be terminated until the 1st of July 2014. The rental agreement shall hereby be ended by mutual agreement with immediate effect. |
| 13. | (4) The presentation of an energy performance certificate is not required by the purchaser, such investment obligations as per the relevant Energy Saving Regulations (EneV) are met solely by the GmbH. |
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| 14. | (5) Dr. med. Orhan Karahodza and Xxx. Xxxxxxx Xxxxxxxxx are liable to the GmbH, that the market value of the property following the deduction of the takeover liabilities is at least EUR 1.00. |
§ 5
Costs
All costs which occur through the registration and execution of this agreement, the cost for the proposal for the pending land transfer tax for this acquisition process, as well as any possible costs for accessing the electronic Land Register and the printouts of the related Land Register excerpts, shall be borne by the GmbH.
§ 6
Entering into joint ownership
| 1. | (1) The legal relationships of the apartment and partial property ownership with each other, as well as the management of the residential complex are governed by the declaration of apportionment and joint property arrangement. This is provided by the GmbH. |
| 2. | (2) On the day of the transfer of operations, the GmbH enters into all, contractually effective, rights and duties founded in this agreement and into the management agreement. You are bound to the decision of the joint ownership. |
| 3. | (3) Claims for reparation costs and other costs from the accounts servicing maintenance costs are transferred as they are at the time of the transfer of operations to the GmbH. Outstanding payments do not exist as specified in the ownership. From the time of the transfer of operations onwards, the GmbH is authorized to participate and to vote at the general assembly meeting. |
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| 4. | (4) The settlement of the current financial year has to take place in such a way that the day on which the operations are transferred is valid as the deadline for subsequent payments and reimbursements. Subsequent payments for the period of time before the deadline go to the charges against the owner, for the period of time following against the charges of the GmbH. If it is cannot be established for which period of time a subsequent payment or credit takes place, the respective amounts shall be distributed on a pro rata basis. |
§ 7
Severability Clause
Should individual clauses of this agreement be or become invalid or unfeasible, or should a breach appear in this agreement, this shall not affect the validity of the remaining clauses. The invalid or infeasible provision shall be replaced by a provision agreed upon by the parties to the agreement which comes as close as possible to the purpose and sense of this agreement, should the matter have been thought of in the beginning.
§ 8
Important notes from the Notary
| (1) | The appearing parties were made aware of the following: |
| 1. | a) | Any possible ancillary agreements to this agreement must also be certified; uncertified or incorrectly certified agreements are not effective and can call the efficacy of the entire agreement into question. |
| 2. | b) | For the costs and taxes from this agreement, there is a mutual liability on the basis of statutory regulations. |
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| 3. | c) | The change of ownership in the Land Register can only take place after having obtained the clearance certificate from the Tax Office for the land transfer tax. The participants confirm that they have been informed of the legal effects of this agreement and especially of the risk of preliminary work in the mutual agreement, as well as the nature of the priority notice of conveyance and in relation to the land transfer tax. Furthermore the notary did not give any tax advice; he is accordingly exempt from any liability. |
| 4. | d) | The property is liable on the basis of statutory regulations for the arrears of public encumbrances and levies, especially for any possible development charges. |
| 5. | e) | The ownership is not transferred upon conclusion of this agreement, rather after the entry of the transfer of ownership in the Land Register to the purchaser. |
| 6. | f) | Rental and lease agreements are not affected through this sale. |
| 7. | g) | Of the entry of the purchaser into insurance contracts, in accordance with §95 of the German Insurance Contract Act (VVG) and the opportunities for terminating the contract by the insurer and the policy holder in accordance with §96 VVG. |
| 8. | h) | Of the Energy Saving Regulations. |
§ 9
Authorization
The parties to the agreement authorize for themselves and their successors, the Notary ........ based in ...... and the notarized staff
a) Mrs ...... ,
b) Mrs ...... ,
c) Mrs ...... ,
d) Mrs ...... ,
all with the office address at ....... , ..... ,
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Each of the notarized staff are individually authorized with unconditional authority, which means in particular that they are independent from the effectiveness of the remaining clauses of this certificate, however they do not have a mandate to represent them in the execution of the legal transaction as well as amendments in all circumstances.
The powers of attorney have in particular the authority to submit or amend other declarations of agreement, registration or removal approvals, to add or withdraw proposals to the Land Register, to request, accept and communicate approvals and absolutely everything in their discretion which is required for the completion of this matter.
The powers of attorney are exempt from the limitations of §181 of the BGB and have the right to transfer authority. The participants exempt the authorized notarized staff from any personal liability.
This authority can only be exercised in court in front of the certified notary, and the notary ...... based in ....... or by their respective representative or successor.
| Location, Date |
| The Investor: | |
| The GmbH: |
