§ 1 Company, location
(1) The organization is a limited liability company. The organization’s company is called “atmosfair gGmbH.”
(2) The company is registered in Bonn.
§ 2 Company's purpose/non-profit status
(1) The company’s purpose is to promote environmental protection, education, and international understanding as well as to support development aid.
(2) The company’s purpose is fulfilled especially by supporting projects that minimize greenhouse gas emissions in developing countries (e.g., through solar energy, hydropower, biomass, and energy-saving projects) that simultaneously promote development in these countries as well as by supporting education and raising awareness about the company purpose, especially through public relations work (e.g., through seminars, workshops, campaigns, internet presence, etc.).
(3) The company can take all actions that are appropriate to indirectly or directly serve the company’s purpose. It can establish branch offices both domestically and abroad. Taking the “atmosfair” standards into consideration, the company can collect donations for climate protection projects as well as control these standards.
(4) The company solely and directly follows non-profit objectives according to the provisions from the section “tax-privileged objectives” in the tax code.
(5) The company is a non-profit organization; it does not act primarily in its own financial interest.
(6) The company’s resources may only be used for statutory purposes. The shareholders may not receive dividends, and they also may not receive any other allowances from the corporation’s resources within their capacity as shareholders.
(7) No one may be the beneficiary of excessive compensation or of expenditures that are not aligned with the company’s purpose.
(8) If shareholders withdraw from the company, if the company is dissolved, or if the company’s tax-privileged status is discontinued, the shareholders will not receive more than the share of the capital that they paid in and any potential assets in kind that may still be available at that point in time.
(9) If the company is dissolved or if its tax-privileged status is discontinued, the excess company assets paid out to Stiftung Zukunftsfähigkeit in Bonn according to section 8 must be used immediately and solely for non-profit, charitable, or church purposes. Decisions about the future use of the assets may only be made following approval from the tax office.
§ 3 Charter capital, original capital contribution
(1) The company’s charter capital amounts to € 25,000.00 (written out: twenty-five thousand euros).
(2) The charter capital is divided as follows: Stiftung Zukunftsfähigkeit in Bonn assumes the sole share in the company in the nominal amount of € 25,000.00.
§ 4 Duration of the company, financial year
(1) The company has been established to exist for an indefinite period of time.
(2) The financial year corresponds to the calendar year.
§ 5 Company management
(1) The company has one or more managing directors.
(2) Determining the number of managing directors as well as appointing, concluding, changing, or ending employment contracts or revoking appointments will take place at the company meeting.
(3) The managing directors are obligated to lead the company’s activities in accordance with the law, these articles of association, the resolutions made by the shareholders and the Advisory Board for atmosfair Standards and, where applicable, business resolutions adopted at the company meeting. Irrespective of their representative powers towards third parties, the managing directors are only allowed to manage on the basis of mutual agreement. If they are not able to reach an agreement regarding a management measure, they will obtain a decision at the company meeting.
(4) For all activities that go beyond the usual business of the company, the managing directors must obtain approval at the company general meeting. For activities according to § 9, section 5, they also require the prior consent of the Advisory Board for atmosfair Standards. At any time, a resolution can be passed at a company meeting stating that the management board can only undertake actions beyond those mentioned in § 9, section 5 with the consent of the Advisory Board for atmosfair Standards.
§ 6 Representation
(1) If only one managing director is appointed, then he or she alone will represent the company. If several managing directors are appointed, then the company will be jointly represented by two managing directors or by one managing director together with an authorized representative.
§ 7 Company meetings
(1) Company meetings are called by the managing directors; it is sufficient for one managing director to call the meeting. The managing directors are obligated to call a company meeting promptly at the request of a shareholder or the Advisory Board for atmosfair Standards.
(2) Each shareholder will be notified about the meetings in writing, specifying the place, date, time and agenda, within a time limit of at least two weeks; if it is urgent, the time limit can be shortened as appropriate to one week. In calculating the time limit, the day of mailing and the day of the company meeting are not included.
(3) Company general meetings take place at company headquarters. The company general meeting may also take place at any other location in the Federal Republic of Germany with the consent of the majority of the shareholders. With the consent of all shareholders, the company meeting may also take place at a location outside of the Federal Republic of Germany.
(4) If there are multiple shareholders, a shareholder may only be represented at the company general meeting by either another shareholder or by a third party that is legally bound to confidentiality. This third party must be a financial accountant, a registered auditor, a lawyer, or a tax adviser. The representative must present a written power of attorney at the beginning of the company meeting. Each shareholder has the right to consult a third party that is legally bound to confidentiality.
(5) If all shareholders are present or represented and none of them objects to a resolution, resolutions may be passed even if the legal provisions that apply to calling and announcing a meeting or those in the articles of association were not upheld.
(6) The leader of the meeting is elected at the company general meeting. If none of the shareholders receives the required majority, the shareholder that is present with the most shares will lead the company meeting. If there are equal shares, it will be led by the oldest shareholder.
(7) Insofar as a notary does not record the proceedings of the company meeting, minutes must be prepared for the meeting for evidentiary purposes. In particular the location and date of the meeting, the list of participants, the points on the agenda, and the shareholders’ resolutions must be included. This record must be signed by the managing director. Each shareholder should be sent a copy of the minutes.
(8) The company meeting is quorate when all shareholders have been invited properly and shareholders representing at least 50% of the capital stock are present or properly represented in the company general meeting. If this is not the case, a new company general meeting with the same agenda must be called promptly. This may be passed without considering what percentage of the capital stock is represented and must be indicated when the meeting is called.
§ 8 Shareholder resolutions
(1) Resolutions made by shareholders will be passed by a simple majority unless these articles of association or the law specify another majority. Abstentions do not count as votes cast.
(2) Voting is determined by share. Each 50.00 € share guarantees one vote.
(3) Insofar as these articles of association or mandatory legal provisions do not determine otherwise, a shareholder is only then, but also always then, excluded from casting a vote when the following resolutions are passed:
a) Whether the shareholder should be discharged or relieved from an obligation
b) Whether the company should make a claim against the shareholder
c) Whether the shareholder’s shares should be withdrawn
(4) The leader of company general meetings must announce the result of each resolution that has been passed and record this in the minutes.
(5) Insofar as passing a resolution in a company meeting is not legally required, resolutions may be recorded in any manner with the agreement of all shareholders, including by any type of telecommunication, e-mail, or in a mixed form. Such resolutions only take effect when they are recorded in minutes according to § 7, section 7, which also includes the manner in which the individuals votes can be cast.
(6) Shareholder resolutions may only be contested within one month of having received the protocol according to § 7, section 7.
§ 9 Advisory Board for atmosfair Standards
(1) The company has an advisory board for standards (hereafter “advisory board”).
(2) Insofar as permitted by law, the advisory board is granted all of the powers of the company general meeting with regard to questions of environmental integrity, especially regarding project selection and the further development and supervision of atmosfair standards, including emissions calculations. The rights of the advisory board do not affect the legal rights of the individual shareholders. The shareholders must unanimously decide upon amendments to the articles of association regarding the appointment of Advisory board members, the determination of the advisory board’s responsibilities, the regulation of its activities and of the procedures for passing resolutions as well as all other matters concerning the advisory board. The advisory board makes decisions independently and freely within its area of responsibility.
(3) The advisory board consists of four members with voting rights. The advisory board can unanimously name additional members of the advisory board without voting rights. At the company general meeting, it can be decided to increase the number of advisory board members with voting rights by an even number.
(4) The advisory board ensures that the atmosfair standards are upheld and works to further develop them. The standards especially include the criteria for calculating emissions and for monitoring emissions savings and the use of resources, that is, defining a minimum proportion of donations received that should go directly to the climate protection projects as well as in selecting projects worthy of support. Moreover, the advisory board monitors the formal documentation of emissions reduction through the national Emissions Trading Authority as well as the strategic line of communications regarding the company’s purpose of “awareness raising.” The advisory board will supervise the managing directors according to the guidelines determined by regulatory requirements and procedures.
(5) The advisory board advises and monitors the management board regarding questions of environmental integrity and recognizes the responsibilities assigned to it in the articles of association. The management board is obliged to provide all information required for the advisory board to fulfill its responsibilities and to receive the prior approval of the advisory board on significant management matters that concern the advisory board’s area of responsibility for each management measure concerned. The activities that require approval hereafter especially include:
a) Concluding contracts with greenhouse gas emission minimization providers that involve allocating funds in order to fulfill the company’s purpose,
b) Concluding contracts regarding the procurement of projects according to lit. a,
c) Concluding contracts for services regarding the public portrayal of the “atmosfair” standards and the areas of air traffic and climate change,
d) Significant changes to the “atmosfair” standards and to the general direction of communication,
(6) All members of the advisory board must be in the position to fulfill the tasks assigned to the advisory board to the best of their ability and experience. The members of the advisory board are not bound to the instructions of individual shareholders or to those of the collective shareholders; taking the law and the articles of association into consideration, their decisions should be guided solely by the company’s purpose. They must maintain silence about the company’s confidential information and secrets, namely business and trade secrets that are disclosed through their work in the advisory board. This also applies after they leave the advisory board.
(7) The members of the advisory board do not receive additional compensation besides reimbursement of their expenses.
§ 10 Appointment of Advisory Board members for atmosfair Standards
(1) Half of the members of the advisory board will be appointed by a resolution passed at the company meeting. Each of these members can be replaced by another member of the advisory board at any time by a resolution passed at the company meeting.
(2) The other half of the members of the advisory board will be delegated by the Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety (hereafter “BMU”).
Each of the delegated advisory board members can be dismissed at any time by the BMU and replaced by another member of the advisory board.
(3) Advisory board members are appointed for the time until the end of the company meeting of the third business year after their term of office has begun; the business year in which the term of office begins is not included in this time. This also applies to delegated members.
§ 11 Internal regulation of the Advisory Board for atmosfair Standards
(1) The advisory board elects a chairperson und a representative for this person from among its members by simple majority. The election takes place for the term specified in § 10, section 3. If the chairperson or representative resigns before the term has ended, the advisory board must promptly elect a new candidate for the remaining term of the person who left.
(2) Each member of the advisory board and each managing director can request the chairperson of the advisory board to promptly call an advisory board meeting upon providing the reason and purpose for this. If the meeting is not called within two weeks, the member can call the advisory board meeting on his or her own initiative.
(3) Normally, the advisory board should be called to meet once per quarter. Either the chairperson or the chairperson’s representative if the chairperson is unable calls the advisory board meeting in writing along with the agenda within a period of at least two weeks. In urgent cases, the chairperson may shorten the time period and call the meeting without stating it in writing.
(4) The advisory board sets its own controlling guidelines according to § 9, section 4. In general, the advisory board makes decisions by means of submissions from the management board for which resolutions can be passed; among other things, the guidelines specify the latest time point by which the management board must present an item to be approved for the first time.
Moreover, the guidelines determine which members of the advisory board are the contact persons for the management board during ongoing operations.
(5) The managing director determines the order of agenda items. A recording of the advisory board’s proceedings and resolutions must be prepared and signed by the managing director.
(6) The advisory board is quorate if all members are present or are represented by another member of the advisory board. According to clause 1, submitting votes in writing or through another member is equivalent to voting in person. The members of the advisory board may consult a third party that is legally bound to confidentiality in advisory board meetings. If the advisory board is not quorate, a new meeting with the same agenda must be called promptly. This may be passed without considering the number of present or represented advisory board members and must be indicated when the meeting is called.
(7) Beyond advisory board meetings, resolutions are permitted in written form, by telex, telegraph, telephone, telefax and e-mail as long as no member objects to this within a reasonable period of time determined by the managing director. Resolutions that are not passed within meetings will be written down by the managing director and provided to all members.
(8) Advisory board resolutions are passed with a simple majority. If the vote is a tie, then the proposal is considered rejected.
(9) In addition, the procedural rules issued by the advisory board for the advisory board apply.
(10) § 52 section 1 GmbHG does not apply.
§ 12 Advisory Council
(1) The company has an advisory council.
(2) This council consists of an even number of members, half of which are named at the company meeting and half of which are named by the BMU.
(3) The same rules that are in place for the advisory board apply to the appointment, dismissal and internal regulation of the advisory council accordingly. The council meets at least once per calendar year.
(4) The advisory council should consist of public figures that are especially involved in the area of climate protection. It should advise the company in questions of climate protection, particularly regarding the further development of voluntary emissions offsetting against the backdrop of the political framework regarding “air traffic and climate protection.” The council should make proposals to further develop the “atmosfair” standards and the climate protection projects supported and implemented by the company.
§ 13 Services for shareholders
(1) The company is prohibited from granting benefits of any kind to a shareholder or to a natural or legal person close to a shareholder through legal action or otherwise that would not be granted by a managing director acting conscientiously and properly towards independent third parties under the same or similar circumstances, that could be perceived as a hidden distribution of profits from a tax perspective, or that violates § 30 GmbHG.
(2) In the event of a violation, the company is entitled to be reimbursed for the benefit by the beneficiary as soon as the benefit has been granted, or if the company so chooses, it may receive financial compensation of its value as well as the payment of fair interest rates for the time between when the benefit was granted and when the compensation or compensatory service was received.
(3) The person who is classified as a beneficiary in the sense of section 2 is the person who receives a tax benefit from the transaction without regard to whether a third party ultimately benefits and how the beneficiary deals with this. If there is no legal claim against the beneficiary, the claim is directed to the shareholder who is closest to the beneficiary.
(4) The company must add the resulting compensation or compensatory service to the balance sheet for the period of time in which the claim arises, including by adjusting the balance sheet retroactively if necessary.
§ 14 Disposition of company shares
(1) In order for dispositions, whether for a fee or for free, as well as charges to shares or parts of shares to take effect, they require the prior written approval of all shareholders. The same applies for granting or changing indirect holdings as well as justifying or changing trustee relationships.
(2) Fully paid shares can be unified into one share. The unification requires a resolution by the company and the consent of the person who owns the share that will be combined.
§ 15 Redemption of shares
(1) The redemption of shares is permitted at any time with the consent of the shareholder concerned.
(2) The redemption of shares is also permitted without the consent of the shareholder concerned when
a) the share is impounded by a shareholder’s creditor or enforced in some other way and the enforcement measures are not annulled within three months since they began but at the latest by the time that the share’s value has been realized;
b) insolvency proceedings are initiated against the shareholder’s assets, initiating such proceedings is dismissed for lack of assets, or the shareholder declares the accuracy of his or her list of assets under oath;
c) there is an important reason that justifies excluding the shareholder in his or her person,
d) the shareholder withdraws from the company.
If several parties are entitled to a given share, redemption according to section 2 is also permitted when the conditions listed here only concern one of these parties.
(3) The management board will declare the redemption, which does not require a shareholder resolution.
The affected shareholder does not have a vote.
(4) From the shareholder resolution on redemption of shares onward, the voting right of the affected shareholder is suspended.
(5) When the effective shareholder resolution has been passed, the redemption will be effective immediately.
(6) Reconstituting a redeemed share is permitted and is enacted by a shareholder resolution.
§ 16 Redemption compensation
(1) The redemption of shares will be financially compensated. The amount of this compensation corresponds to the share of capital paid in and any potential assets in kind remaining at the time of the withdrawal.
(2) An auditor chosen by the Institute of Public Auditors in Germany to be an arbitrator will definitively settle any disputes about the amount of the redemption compensation for all parties involved. This auditor must also determine the costs of being used according to the provision in §§ 91 ff. ZPO.
(3) Insofar and so long as payments violate § 30 section 1 GmbHG, payment of the principal claim are deferred and interest paid on it at the agreed-upon interest rate.
§ 17 Requirement to transfer in lieu of redemption
(1) Insofar as redemption of a share is permitted, the company meeting can resolve that the affected shareholder transfers his or her shares to the company, to the other shareholders according to the proportion of previously owned shares, or to a third party who is willing to take them over and namely in such a way that the share is partially redeemed and the rest is transferred to the company or a third party designated by the company. § 17 GmbHG remains unaffected.
(2) Insofar as the company demands that the shares are transferred to the company or to a person designated by the company instead of being redeemed, the regulations according to § 16 in accordance with the proviso apply, namely that the remuneration for the shares to be transferred are owed to the purchaser of the shares.
§ 18 Annual report, utilization of profits
(1) The annual report (balance sheet and income statement) for the past financial year must be prepared by the managing directors within the statutory period and, regardless of whether it is required by law, be presented to the annual auditor for examination. The annual auditor is selected during the company meeting.
(2) Every year, the managing directors prepare and publish a detailed annual report about the company’s activities over the previous year. It also contains a detailed balance sheet and income statement.
(3) The managing directors must present the annual report and auditor’s report immediately following their completion together with their suggestion for how profits should be used. The annual report and suggestion for the use of profits are reviewed at the company meeting.
(4) During the company meeting, the shareholders approve the financial statements and decide on how profits will be used within the statutory period. The company’s profits remain within the company to fulfill the company’s purpose.
§ 19 Non-disclosure
The shareholders are obligated to maintain strict confidentiality about all of the company’s affairs towards third parties insofar as they are not bound to mandatory legal provisions on disclosure. This obligation to maintain confidentiality continues even after shareholders have left the company.
§ 20 Final provisions
(1) The company bears its or its founders’ incurred formation expenses in the amount of up to 2,000.00 €.
(2) Company announcements will only be made in the German Federal Gazette.
(3) The shareholders’ agreements regarding their business relationship must be in writing insofar as notarization is not required.
(4) If individual provisions in these articles of association are or become completely or partially invalid or if something is missing in these articles of association, the validity of the other provisions are not affected. In place of the invalid provisions, a valid provision must be agreed upon that corresponds to the intent and purpose of the invalid provision, especially its economic intent. In the event that something is missing, a provision should be agreed upon that corresponds with the intent and purpose of these articles of association.