ARTICLES OF ASSOCIATION

ARTICLES OF ASSOCIATION

 of the

GESELLSCHAFT ZUR WAHRNEHMUNG VON VERANSTALTERRECHTEN mbH

 

Preamble

The

Bundesverband der Veranstaltungswirtschaft (BDV) e. V.,

Lenhartzstr. 15, 20249 Hamburg,

(in the following named as „shareholder“),

establishes hereby a limited liability company

(in the following named as „Company“, „collecting society“ or „GWVR“).

The company serves as a collecting society to exercise the ancillary copyright of organisers (§ 81 UrhG (Copyright Act)).

 

  • 1

(1) The registered name of the Company is ‚Gesellschaft zur Wahrnehmung von Veranstalterrechten mbH’.

(2)  The Company’s registered office is in Hamburg.

(3) The corporate purpose is the fiduciary management of rights and claims of organisers which derive from § 81 of the Copyright Act (UrhG) or rights in accordance to § 81 UrhG which are transferred to entitled persons (in the following named as “organiser rights”) as well as the legal distribution of the resulting revenue to the entitled persons. The Company has the right to and is in accordance to § 34 VGG obliged to give the necessary authorisation or to comply to the use to those who want to use the organiser rights.

(4) A collection agreement is made about the type and scope of the rights to be managed by the Company. The advisory board decides upon the agreement of the collection agreement in compliance with the conditions of management decided by the general members meeting. In a written statement the entitled persons may restrict the type and scope of the managed rights and claims to their choice and may limit the management to Germany.

(5) The Company bears the costs for their own foundation (notary costs, registration costs).

 

  • 2

(1) The Company is not directed towards profit. Any and all remuneration collected by the Company shall, after deduction of the administrative expenses, be distributed to the entitled persons in accordance with the distribution plan (§ 27 VGG) adopted by the general members meeting.

(2) The distribution plan shall respect the following principles:

  • The distribution shall be based on the notifications submitted by the entitled persons.
  • As far as ascertainable with adequate means, every entitled person shall receive his share of the amount to be distributed in accordance to the exploitation of his rights.
  • As far as the individual share is not determinable with adequate means, general rules for assessment and distribution shall be established for an approach to the individual share.

(3) The general members meeting determines the type and scope of the promotion of culturally important works and performances (§ 32 (1) VGG) and the set up of welfare and assistance schemes for the copyright holders (§ 32 (2) VGG). The funds for those cultural and social purposes may not exceed 5 % of the revenue.

 

  • 3

(1)  The company’s share capital amounts 25.000,- €.

(2)  The shareholder “Bundesverband der Veranstaltungswirtschaft (BDV) e. V” contributes 25.000,- € to the share capital. The proportional ownership structure of the shareholders on the company corresponds to the relation of the shares paid.

(3) The assignment of company shares as well as the burden with a usufruct can only take place with the approval of the Company.

 

  • 4
  • The financial year is the calendar year.
  • The financial statement and the management report of the expired financial year shall be published in the Federal Gazette until August 31. of the following year. The financial statement shall be audited by a statutory auditor. A written report shall be made about the audit, which includes an audit opinion in accordance to $ 57 VGG.
  • The first fiscal year begins on the day on which the Company is entered to the Commercial Register and ends on the following December 31.

 

  • 5
  • The Company is represented by a managing director or by several managing directors. If several managing directors have been appointed, the Company shall be represented by two managing directors jointly or by a managing director with the authorised officer.
  • The management board is internal subject to the provisions of their employment contract.
  • The stated transactions in § 7 (5) require the prior consent of the advisory board. The stated transactions in § 8 (2) require the prior consent of the general members meeting.
  • The management board may be released from the restrictions of § 181 German Civil Code (BGB) by a resolution of the shareholder meeting.

 

 

  • 6
  • The shareholder meeting may be convened if a resolution of the company is required or if the convocation is in the interest of the Company for other reasons. In every case, an annual shareholder meeting must be called within 2 months of the submission of the annual financial statement.
  • The meeting is convened by the managing board. The invitation to attend is to be sent by a simple letter with at least two weeks notice and shall include the agenda. The invitation for the annual meeting shall include the annual financial statement.
  • The shareholder meeting shall be held at the Company’s location. It may also be held elsewhere for a justified reason. Each shareholder may attend the shareholder meeting. He may appoint a third party committed to professional secrecy for his representation. Each of the other shareholders may request the authorised representative to submit a written power of attorney.
  • The meeting shall be presided by the management board.
  • The shareholder meeting shall constitute a quorum if at least half of the capital stock are represented. If this is lacking, a second meeting with the same agenda shall be convened within four weeks and shall always be quorate. Resolutions by shareholders may only be passed at a shareholder meeting or in accordance to § 48 (2) GmbHG in writing by telefax or e-mail.
  • Shareholders’ resolutions shall be adopted with the simple majority of the votes cast, unless the statutes provided or the law expressly require a larger majority. The vote shall be taken by shares. Each 100,- € of shares grants one vote.
  • The content of the resolutions taken shall be recorded by the chairperson. The minutes shall be signed by the chairperson and send to the shareholders by simple letter. They may request an amendment or a correction of the minutes in writing within four weeks after the dispatch of the minutes. Minutes that are not contradicted or amended shall be presumed to be correct and complete. Shareholder resolutions may to be contested only within a period of six weeks after dispatch of the minutes by way of action.
  • The chairperson of the advisory board or his deputy shall be entitled to attend the shareholders meeting. The advisory board shall, in any event, get copies of the meetings minutes and of the shareholder resolutions.

 

  • 7
  • The Company has an advisory board consisting of at least seven persons. The members of the advisory board are appointed by election for a period of three financial years.
  • Two members of the advisory board form the representation of entitled persons without membership in accordance to § 20 VGG. They are appointed by election on an entitled persons meeting, which is convened by the management board. The entitled persons meeting may take place at the general members meeting. § 8 (1) applies for the entitled persons meeting with the proviso that not the members but the entitled persons attend the meeting and with the further proviso that this meeting shall take place at least every three years and not at least every year.
  • Five further members of the advisory board shall be appointed by election for a period of three financial years at the general members meeting.
  • The members of the advisory board appointed by the general members meeting (§ 7 (3)) shall form the supervisory body in accordance to § 22 VGG. These members of the advisory board are entitled for consultative participation at the general members meeting. Only natural persons, who are right holders or fulltime employees or authorized representatives of legal persons who are right holders, and who concluded a Collection Agreement with the Company may be advisory board members.
  • The advisory board decides:
  • The arrangement of the Collection Agreement;
  • Processes with an amount of dispute of 50.000,- € or more
  • The initiation of arbitration proceedings
  • The advisory board gives advice to the general members meeting and the management board in all other fundamental issues.
  • The advisory board shall meet at least ones a year; furthermore, if the majority of the advisory board members or the shareholder meeting or the management board request it. The advisory board meeting shall be held at the Company’s registered office, unless the majority of the advisory board members decides on another meeting venue. The invitation to attend is to be sent in writing (telefax or e-mail is enough) by the management board with at least four weeks notice and shall include the agenda compiled by the management board, as well as location and time of the meeting. For urgent matters the management board may appropriately shorten the notification period. The advisory board shall constitute a quorum if at least half of the members are present or represented or participate in the vote in writing. Advisory board resolutions may be passed outside of meetings by way of written vote (telefax or e-mail is enough), if no member of the advisory board objects this form of decision making process in writing prior to the vote. Advisory board resolutions shall be adopted with the simply majority of the votes cast, unless expressly agreed otherwise. The negotiations and resolutions made by the advisory board shall be written down in minutes, which the minute-taker must sign. A signed copy of the minutes shall be forwarded to the management board immediately.

 

  • 8

(1) The general members meeting (§ 17 VGG) shall meet at least ones a year; furthermore, if the majority of the advisory board members or the management board request it. All Company members and those members of the advisory board, who are representatives of entitled persons without membership (§ 7 (2)) are entitled to attend the general members meeting as well as are entitled to vote. They may appoint a representative by written authorisation. One representative shall not represent more than ten members. The general members meeting shall be held at the Company’s registered office, unless the majority of the advisory board members decides on another meeting venue. The invitation to attend the general members meeting is to be sent in writing (telefax or e-mail is enough) by the management board with at least four weeks notice and shall include the agenda compiled by the management board, as well as location and time of the meeting. In addition, the invitation shall include those points, which are going to be put on vote at the general members meeting as well as an explanation on how the members and advisory board members may exercise their vote electronically. As far as possible, access to the general members meeting shall be set up by video conference. The general members meeting shall constitute a quorum if at least half of the members are present or exercise their voting rights via electronic communication. If the advisory board or the management board decides upon the quorum, the general members meeting may be quorate even if not half of the members are present or exercise their voting rights via electronic communication. Resolutions by the general members meeting shall be adopted with the simply majority of the votes cast, unless expressly agreed otherwise. The negotiations and resolutions made by the general members meeting shall be written down in minutes, which the minute-taker must sign. A signed copy of the minutes shall be forwarded to the management board immediately.

  • The general members meeting decides upon:
  • amendments of the Company’s statute (§ 13 VGG);
  • the annual transparency report (§ 58 VGG);
  • the appointment and dismissal of the statutory auditor or the membership in a cooperative auditing association;
  • mergers and alliances with the participation of the Company, the foundation of subsidiaries, the acquisition of other organisations and the acquisition of other organisations shares and rights by the Company;
  • the principles of risk management;
  • the distribution plan (§ 27 VGG);
  • the use of non-distributable rights revenue (§ 30 VGG);
  • the general investment policy with regard to the rights revenue (§ 25 VGG);
  • the general principles for deductions from rights revenue (§31 (1) VGG) including the general principles for deductions to cover administrative costs (§ 31 (2) VGG) and if necessary deductions to promote culturally important works and performances and the set up of welfare and assistance schemes (§ 32 VGG);
  • the acquisition, the sale and the lease of immovable property;
  • the take out and granting of loans, as well as the condition of loan guarantees;
  • the conclusion, content and termination of representation agreements (§ 44 VGG)
  • the conditions of management (§ 9 sentence 2 (VGG));
  • the tariffs (§§ 38-40 VGG);
  • the rights relevant to the sphere of activity;
  • the conditions under which the entitled person may grant any person the right to use his work or other subject matters for non-commercial purposes (§ 11 VGG).
  • The general members meeting may resolve that the authorities according to paragraph 2 number 3 to 5 and 10 to 14 are transferred to the members of the advisory board appointed by the general members meeting (§ 7 (3)).
  • The general members meeting shall decide upon the appointment and dismissal of the management board as well as the remuneration and other payments and of the members of the advisory board appointed by the general members meeting (§7 (3)).

 

  • 9

(1) Entitled persons and institutions which represent rights owner shall be accepted on written request as a member, if they a) have their registered office within a member state of the European Union, b) do not demonstrable harm the GWVR or the GWVR’s pursued objectives due to their behaviour, c) they got paid out at least 500,- € of the Company’s revenue in the previous year.

(2) The management board decides upon the membership applications.

(3) The entitled persons by the reporting date 31.12.2016 receive upon request, which may be formless, the status of members.

  • 10

If a shareholder was liquidated, the share of the liquidated shareholder may be withdrawn for a consideration. The Company may request that the share is transferred to the Company or to one ore more shareholders instead of the withdrawal.

 

  • 11

(1) Every shareholder may resign by registered letter at any time and without any specific reason with subject to a period of notice of four months to the end of a financial year. The resignation takes effect at the end of the financial year.

(2) The withdrawing shareholder is obligated pursuant to election by the company to assign his share in whole or in part to the Company itself, to one ore more shareholders, or to tolerate the redemption of share. He can exercise his shareholder rights up to his withdrawal. The remaining shareholders are obligated to pass a resolution about the redemption or the surrender obligation until the effective date of the withdrawal.

 

  • 12

(1) Shares may be redeemed anytime with the consent of the shareholder concerned.

(2) The consent of the shareholder concerned is not required

  • If insolvency proceedings or judicial settlement proceedings are initiated on his assets or the initiation of such proceedings are refused due to lack of assets;
  • If his share is impounded and the attachment is not cancelled within two months;
  • If an important reason lying in its person is given, which justifies its exclusion from the Company. For example, the violation of his partner obligations.
  • Where a share is jointly held by several shareholders, it is sufficient if a reason for redemption exists in the person of a co-shareholder. The Company or the shareholders may settle the claims of the executing creditor at the attachment and thus take back the company shares of the shareholder concerned. The shareholder concerned may not contradict such satisfaction. He must allow the amount expended to satisfy the executing creditor to be deducted from his claim to compensation.
  • Instead of the redemption the shareholder meeting may resolve that the share shall be transferred to one or more shareholders or third parties designated by it. The redemption or the assignment can be decided only with a three quarter majority by the shareholder meeting. The shareholder concerned shall have no voting right. His votes are not taken into account in the calculation of the majority required.
  • Where in cases of attachment of shares or insolvency a more favourable treatment regarding the calculation or the due date of the compensation of the redeemed shares applies for the creditor or creditors by mandatory law, this treatment shall replace the arrangements agreed in these articles of association. The redemption and the resolution on the assignment obligations shall be legally effective irrespective of a potential dispute over the level of such compensation.

 

  • 13

Company shares are only alienable to the nominal value.

 

  • 14

(1) The invalidity of individual provisions of this contract shall not affect the validity of the remaining provisions of these articles of association, as far as good will not compulsory require otherwise. In such case, the invalid provision is to be reinterpreted or supplemented in a sense such that the economic or legal objective intended by the provision will be achieved by a resolution of the shareholder meeting. This shall apply similarly if during execution of the articles of association a gap becomes obvious and requires amendment

(2) Each shareholder is obligated to contract amendments, which the business purpose or the fiduciary duty of shareholders demands against each other.

(3) For this agreement the German law applies exclusively. Hamburg shall be the sole place of jurisdiction for all disputes regarding this contract.

(4) The announcements by the Company are published in the Federal Gazette as well as in the intended form according to § 56 VGG.