UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 6-K
REPORT
OF FOREIGN PRIVATE ISSUER
PURSUANT
TO RULE 13a-16 OR 15d-16
UNDER
THE SECURITIES EXCHANGE ACT OF 1934
August
6, 2024
Commission
File Number: 001-38863
Jumia
Technologies AG
(Translation
of registrant’s name into English)
Skalitzer
Straße 104
10997
Berlin, Germany
+49
(30) 398 20 34 54
(Address
of principal executive offices)
Indicate by check mark whether the registrant
files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
On
July 30, 2024, Jumia Technologies AG (the “Company”) entered into a sales agency agreement (the “Sales Agreement”)
with RBC Capital Markets, LLC and Berenberg Capital Markets LLC (the “Sales Agents”) pursuant to which the Company agreed
to issue to the Sales Agents an aggregate of 20,227,736 of the Company’s ADSs and the Sales Agents agreed to use commercially reasonable
efforts, consistent with their normal trading and sales practices and applicable law, to sell all of these ADSs at the market price, or
at a price related to the market price, prevailing at the time of sale. Any ADSs that may be sold pursuant to the Sales Agreement will
be issued pursuant to the Company’s shelf registration statement on Form F-3 (File No. 333-274004), as
supplemented by the prospectus supplement dated August 6, 2024 relating to the sale of the ADSs.
A copy of the Sales Agreement
is attached as Exhibit 1.1. The foregoing description of the Sales Agreement does not purport to be complete and is qualified in its entirety
by reference to such exhibit.
Incorporation by Reference
Exhibits
1.1, 3.1, 5.1, 23.1 and 99.1 to this Report on Form 6-K shall be deemed to be incorporated by reference into the registration statement
on Form F-3 (Registration Number 333-274004) of Jumia Technologies AG and to be a part thereof from the date on which this report is filed,
to the extent not superseded by documents or reports subsequently filed or furnished.
EXHIBIT INDEX
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
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Jumia Technologies AG |
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By |
/s/ Francis Dufay |
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Name: |
Francis Dufay |
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Title: |
Chief Executive Officer and Member of the Management Board |
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Jumia Technologies AG |
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By |
/s/ Antoine Maillet-Mezeray |
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Name: |
Antoine Maillet-Mezeray |
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Title: |
Executive Vice President, Finance & Operations and Member of the Management Board |
Date: August
6, 2024
3
Exhibit 1.1
Jumia Technologies AG
American Depositary Shares
Each Representing Two Ordinary Shares, no par value
SALES AGENCY AGREEMENT
July 30, 2024
RBC Capital Markets, LLC
200 Vesey Street
New York, NY 10281
Berenberg Capital Markets LLC
1251 Avenue of the Americas
53rd Floor
New York, NY 10020
Ladies and Gentlemen:
Jumia Technologies AG, a stock corporation (Aktiengesellschaft)
incorporated under the laws of the Federal Republic of Germany and registered with the commercial register (Handelsregister) of
the local court (Amtsgericht) in Berlin, Germany, under number HRB 203542 (the “Company”), proposes, subject
to the terms and conditions stated herein, to issue and sell an aggregate of 40,455,472 ordinary bearer shares with no par value (auf
den Inhaber lautende Stammaktien ohne Nennwert (Stückaktien)) and a notional attributable value (rechnerischer Nennwert)
of €1.00 (the “Shares”) to RBC Capital Markets, LLC (“RBC”) and Berenberg Capital Markets LLC
(“Berenberg”), as sales agents (the “Agents”), in the form of American Depositary Shares (the “Placement
ADSs”), each representing two Shares (the “Underlying Shares”) on the terms set forth in this Agreement.
The Placement ADSs will be evidenced by American Depositary Receipts (“ADRs”) to be issued pursuant to the Deposit
Agreement dated April 11, 2019, among the Company, The Bank of New York Mellon, as the depositary (the “Depositary”)
and holders and beneficial owners, from time to time, of ADSs issued thereunder (the “Deposit Agreement”).
The Company has prepared and filed with the Securities
and Exchange Commission (the “Commission”) a registration statement on Form F-3 (File No. 333-274004), relating to
certain securities of the Company, including the Underlying Shares represented by the Placement ADSs, under the Securities Act of 1933,
as amended (the “1933 Act”) and the rules and regulations promulgated thereunder (the “1933 Act Regulations”),
which was declared effective by the Commission on August 29, 2023. The “Registration Statement”, as of any time, means such
registration statement as amended by any post-effective amendments thereto at such time, including the exhibits and any schedules thereto
at such time, the documents incorporated or deemed to be incorporated by reference therein at such time pursuant to Item 6 of Form F-3
under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B of the 1933 Act Regulations
(“Rule 430B”); provided, however, that the “Registration Statement” without reference to a time means such
registration statement as amended by any post-effective amendments thereto as of the time of the first contract of sale for the Placement
ADSs, which time shall be considered the “new effective date” of the Registration Statement with respect to the Placement
ADSs within the meaning of paragraph (f)(2) of Rule 430B (“Rule 430B(f)(2)”), including the exhibits and schedules
thereto at such time, the documents incorporated or deemed to be incorporated by reference therein at such time pursuant to Item 6 of
Form F-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B. The base prospectus
filed as part of such shelf registration statement, as amended in the form in which it has been filed most recently with the Commission
in accordance with Section 4(b) or 4(c) hereof, including the documents incorporated or deemed incorporated by reference therein pursuant
to Item 6 of Form F-3 under the 1933 Act, is referred to herein as the “Base Prospectus”. Promptly after execution
and delivery of this Agreement, the Company will prepare and file a prospectus supplement relating to the Placement ADSs in accordance
with the provisions of Rule 424(b) of the 1933 Act Regulations (“Rule 424(b)”). Such final prospectus supplement, as
amended by the prospectus supplement filed most recently with the Commission in accordance with Section 4(b), 4(c) or 4(n) hereof, as
the case may be, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 6 of Form F-3
under the 1933 Act, is referred to herein as the “Prospectus Supplement”. The Base Prospectus, as amended by the Prospectus
Supplement and any applicable pricing supplement thereto, in the form the Base Prospectus, the Prospectus Supplement and any such pricing
supplement are first furnished to the Agents for use in connection with the offering and sale of Placement ADSs, are collectively referred
to herein as the “Prospectus.” For purposes of this Agreement, all references to the Registration Statement, any preliminary
prospectus or the Prospectus or any amendment or supplement thereto shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system (or any successor system) (“EDGAR”).
As used in this Agreement:
“Applicable Time” means,
with respect to any offer and sale of Placement ADSs, the time immediately prior to the first contract of sale for such Placement ADSs,
or such other time as agreed by the Company and the Agents.
“Capital Increase Registration
Date” means the effective date of the registration of the capital increase representing the Underlying Shares in the commercial
register (Handelsregister) of the local court (Amtsgericht) in Berlin, Germany.
“General Disclosure Package”
means each Issuer General Use Free Writing Prospectus, if any, issued prior to the Applicable Time, the most recent Prospectus filed with
the Commission in accordance with Section 4(b), 4(c) or 4(n) hereof that is distributed to investors prior to the Applicable Time and
the number of Placement ADSs and the initial offering price per Placement ADS, all considered together.
“Issuer Free Writing Prospectus”
means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”),
including, without limitation, any “free writing prospectus” (as defined in Rule 405) relating to the Placement ADSs that
is (i) required to be filed with the Commission by the Company, (ii) a “road show that is a written communication” within
the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from filing with the Commission
pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement ADSs or of the offering thereof that does not reflect
the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g).
“Issuer General Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus approved by the Agents or, in the case of a specific offer and sale of Placement
ADSs, consented to by the Agents pursuant to Section 4(l) hereof that is furnished to the Agents for general distribution to investors,
as evidenced by communications between the Company and the Agents.
“Issuer Limited Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
All references in this Agreement
to financial statements and schedules and other information which is “contained,” “included,” “made,”
“stated” or “referred to” (or other references of like import) in the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to include all such financial statements and schedules and other information incorporated
or deemed incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be, prior
to the Applicable Time relating to the particular Placement ADSs; and all references in this Agreement to amendments or supplements to
the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include the filing of any document under the
Securities Exchange Act of 1934, as amended (the “1934 Act”), and the rules and regulations promulgated thereunder
(the “1934 Act Regulations”) incorporated or deemed to be incorporated by reference in the Registration Statement,
such preliminary prospectus or the Prospectus, as the case may be, at or after the Applicable Time relating to the particular Placement
ADSs.
Section 1. Representations and Warranties.
The Company represents and warrants to the Agents at the date of this Agreement, the Capital Increase Registration Date, each Registration
Statement Amendment Date (as defined in Section 4(o) hereof), each Company Periodic Report Date (as defined in Section 4(n) hereof), each
Company Earnings Report Date (as defined in Section 4(o) hereof), each Request Date (as defined in Section 4(o) hereof), each Applicable
Time and each Settlement Date (as defined in Section 5(b) hereof) (collectively, a “Representation Date”), and agrees
with the Agents, as follows:
(a) Compliance
of the Registration Statement, the Prospectus and Incorporated Documents. The Company and the transactions contemplated by this Agreement
meet the requirements for and comply with the conditions for use of Form F-3 under the 1933 Act. The Registration Statement meets, and
the offering and sale of Placement ADSs as contemplated hereby comply with, the requirements of Rule 415(a)(1)(x) under the 1933 Act.
The Agents are named as the agents engaged by the Company in the section entitled “Plan of Distribution” in the Prospectus.
Each of the Registration Statement and any post-effective amendment thereto has become effective under the 1933 Act. No stop order suspending
the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no notice
of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
of the 1933 Act Regulations (“Rule 401(g)(2)”) has been received by the Company, no order preventing or suspending
the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for
any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated. The Company has complied
with each request (if any) from the Commission for additional information. At the time of the initial filing of the Registration Statement,
the Company paid the required Commission filing fees relating to the securities covered by the Registration Statement, including the Placement
ADSs representing the Underlying Shares that may be sold pursuant to this Agreement, in accordance with Rule 457(o) under the 1933 Act.
Each of the Registration Statement and any post-effective
amendment thereto, at the time of its effectiveness and as of each deemed effective date with respect to the Agents pursuant to Rule 430B(f)(2),
complied in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each of any preliminary prospectus
and the Prospectus and any amendment or supplement thereto, at the time it was filed with the Commission, complied in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and is identical to the electronically transmitted copy thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(b) The
documents incorporated or deemed to be incorporated by reference in the Registration Statement, any preliminary prospectus and the Prospectus,
when they became effective or at the time they were or hereafter are filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder.
(c) Accurate
Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time or at any Settlement Date, contained,
contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. At each Applicable Time, neither (A) the General Disclosure
Package nor (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package,
included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Prospectus
nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of any filing with the Commission
pursuant to Rule 424(b) or at any Settlement Date, included, includes or will include an untrue statement of a material fact or omitted,
omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The documents incorporated or deemed to be incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated
by reference were or hereafter are filed with the Commission, as the case may be, when read together with the other information in the
Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, did not, do not and will not include an
untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading. The representations and warranties contained in this Section 1(c) shall not apply to statements in or omissions
from the Registration Statement, the General Disclosure Package or the Prospectus made in reliance upon and in conformity with written
information furnished to the Company by any Agent in writing expressly for use therein.
(d) Issuer
Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration
Statement, any preliminary prospectus or the Prospectus or any amendment or supplement thereto, including any document incorporated by
reference therein, that has not been superseded or modified. Any offer that is a written communication relating to the Placement ADSs
made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning,
for this paragraph only, of Rule 163(c) of the 1933 Act Regulations) has been filed with the Commission in accordance with the exemption
provided by Rule 163 of the 1933 Act Regulations (“Rule 163”) and otherwise complied with the requirements of Rule
163, including, without limitation, the legending requirement, to qualify such offer for the exemption from Section 5(c) of the 1933 Act
provided by Rule 163.
(e) Company
Not Ineligible Issuer. (A) At the time of filing the Registration Statement and any post-effective amendment thereto, (B) at the earliest
time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of
the 1933 Act Regulations) of the Placement ADSs, (C) at the date of this Agreement and (D) at each Applicable Time, the Company was not
and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant
to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.
(f) Effectiveness
of F-6. The Company and the Depositary have prepared and filed with the Commission a registration statement relating to the ADSs on
Form F-6 (File No. 333-254136) (the “Form F-6”) and a related prospectus for registration under the 1933 Act of the
ADSs, have filed such amendments thereto and such amended prospectuses as may have been required to the date hereof, and will file such
additional amendments thereto and such amended prospectuses as may hereinafter be required. The registration statement on Form F-6 for
registration of the ADSs, as amended at the time it became effective (including by the filing of any post-effective amendments thereto),
and the prospectus included therein, as then amended are hereinafter called the “ADS Registration Statement.” The Form
F-6 became effective under the 1933 Act on March 11, 2021, and (i) no stop order preventing or suspending the effectiveness of the
ADS Registration Statement is in effect, and no proceedings for such purpose are pending before or, to the knowledge of the Company, threatened
by the Commission, (ii) the ADS Registration Statement complies and, as amended or supplemented, if applicable, will comply in all material
respects with the 1933 Act and the applicable rules and regulations of the Commission thereunder, (iii) the ADS Registration Statement,
when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein not misleading and (iv) all of the Placement ADSs are registered
pursuant to the ADS Registration Statement.
(g) Independent
Accountants. The accountants who certified the financial statements and supporting schedules (if any) of the Company included in the
Registration Statement, the General Disclosure Package and the Prospectus are independent public accountants with respect to the Company
as required by the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the Public Accounting Oversight Board.
(h) Financial
Statements; Non-IFRS Financial Measures. The financial statements of the Company included in the Registration Statement, the General
Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly in all material respects the financial
position of the Company at the dates indicated and the statement of operations, stockholders’ equity and cash flows of the Company
for the periods specified; said financial statements have been prepared in conformity with International Financial Reporting Standards
(“IFRS”) as issued by the International Accounting Standards Board applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, present fairly and in all material respects in accordance with IFRS the information required
to be stated therein. The selected financial data and the summary financial information included in the Registration Statement, the General
Disclosure Package and the Prospectus present fairly in all material respects the information shown therein and have been compiled on
a basis consistent with that of the audited financial statements included therein. Except as included in the Registration Statement, the
General Disclosure Package and the Prospectus, no historical or pro forma financial statements or supporting schedules are required to
be included in the Registration Statement, any preliminary prospectus or the Prospectus under the 1933 Act or the 1933 Act Regulations.
All disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus, if any, regarding “non-IFRS
financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G under the
1934 Act and Item 10 of Regulation S-K under the 1933 Act, to the extent applicable. The interactive data in eXtensible Business Reporting
Language incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents in
all material respects the required information and has been prepared in accordance with the Commission’s rules and guidelines applicable
thereto.
(i) No
Material Adverse Change. Except as stated in the Registration Statement, the General Disclosure Package and the Prospectus, since
the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus,
(A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs, business
prospects, stockholders’ equity, operations or management of the Company and any subsidiaries, considered as one enterprise, whether
or not arising in the ordinary course of business (a “Material Adverse Change”), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect
to the Company and any subsidiaries considered as one enterprise, and (C) there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class or series of its capital stock.
(j) Good
Standing of the Company. The Company is a stock corporation (Aktiengesellschaft) incorporated under the laws of the Federal
Republic of Germany and registered with the commercial register (Handelsregister) (the “Commercial Register”)
of the local court (Amtsgericht) in Berlin, Germany, under number 203542 B. The Company has all requisite power and authority
to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure
Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated in, this
Agreement. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where
the failure so to qualify or to be in good standing would not, reasonably be expected to have, singly or in the aggregate a material adverse
effect on (A) the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and any
subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business or (B) the ability of the Company
to enter into and perform any of its obligations under, or to consummate any of the transactions contemplated in, this Agreement (collectively,
a “Material Adverse Effect”). The Company is not in violation of its articles of association or other governing documents.
The Company is not in default in the performance or observance of any obligation contained in any agreement or instrument to which it
is a party or by which it or any of its assets may be bound or in violation of any law, ordinance, governmental rule, regulation or decree
of any court, government or governmental agency or body having jurisdiction over the Company or its properties, except in each case where
any such default or violation would not have or be reasonably expected to have a material adverse effect on the Company and its subsidiaries,
taken as a whole. The constitutive documents of the Company comply with the requirements of German law and are in full force and effect.
(k) Good
Standing of Subsidiaries. Each subsidiary of the Company has been duly incorporated and is validly existing in good standing under
the laws of the jurisdiction of its incorporation or organization, has all requisite power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and
is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing
would not, singly or in the aggregate, result in a Material Adverse Effect. Except as described in the Registration Statement, the General
Disclosure Package and the Prospectus, all of the outstanding shares of capital stock of and share capital of each subsidiary have been
duly authorized and validly issued, are fully paid and non-assessable and clear of all liens, encumbrances, equities or claims and, except
for certain non-controlling interests or as described in the Registration Statement, the General Disclosure Package or the Prospectus,
are owned directly or indirectly by the Company. None of the subsidiaries is in violation of its articles of association or other governing
documents, except any such violation as would not have or be reasonably expected to have a Material Adverse Effect. None of the subsidiaries
is in default in the performance or observance of any obligation contained in any agreement or instrument to which it is a party or by
which it or any of its assets may be bound or in violation of any law, ordinance, governmental rule, regulation or decree of any court,
government or governmental agency or body having jurisdiction over such subsidiary or its respective properties, except in each case where
any such default or violation would not have or be reasonably expected to have a Material Adverse Effect.
(l) Capitalization;
Listing of ADSs. The Company has various authorized capitals, conditional capital and issued share capital as set forth in the Registration
Statement and the Prospectus. The Company’s authorized, issued and outstanding shares of capital stock conform and the Placement
ADSs and Underlying Shares will conform to the description thereof contained or incorporated by reference in the Registration Statement
and the Prospectus. The outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully
paid and non-assessable. None of the outstanding shares of capital stock of the Company were issued in violation of the preemptive or
other similar rights of any securityholder of the Company or any other person or entity. The global share certificate(s) relating to the
Placement ADSs, when submitted to Clearstream Banking AG, Frankfurt am Main (the “Custodian”) as provided herein, conform
or will conform to such descriptions. The Placement ADSs shall have equal rights and shall be fully fungible with the Company’s
existing shares. By the Capital Increase Registration Date (see below), the Placement ADSs will have been approved for listing, subject
to official notice of issuance, on the New York Stock Exchange (“NYSE”), and the Company has taken no action designed
to, or likely to have the effect of, terminating the registration of the Placement ADSs under the 1934 Act or the listing of the Placement
ADSs on NYSE, nor has the Company received any notification that the Commission or NYSE is contemplating terminating such registration
or listing.
(m) Except
as described in the Registration Statement and the Prospectus, the Company has no outstanding securities convertible into or exchangeable
for, or warrants, rights or options to purchase from the Company, or obligations of the Company to issue, shares of the Company or of
any of its subsidiaries, and the Company has not entered into any other agreement or arrangement of any kind that evidences rights of
any holder against the Company to subscribe or to require the issue of shares of the Company or of any of its subsidiaries or any other
securities similar to shares of the Company or of any of its subsidiaries or which could give rise to a liability of the Company to issue
any shares.
(n) The
Underlying Shares may be freely deposited with the Custodian against issuance by the Depositary of ADRs evidencing Placement ADSs. The
Placement ADSs, when issued and delivered against payment thereof, will be freely transferable to or for the account of the Agents; and
there are no restrictions on subsequent transfers of such Placement ADSs under the laws of the Federal Republic of Germany or the United
States.
(o) The
Underlying Shares, upon subscription and issuance are not subject to any liens, charges, encumbrances, equities, claims or to any rights
of any person and are freely transferable under the Company’s articles of association and under applicable German law, including
to the relevant clearing systems. Under applicable laws and regulations, no authorizations, approvals, consents or licenses of any governmental
authority or regulatory body or agency are required to be obtained by the Company to effect dividend payments declared and payable on,
or in respect of, the Shares.
(p) Authorization
of this Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(q) Authorization
and Description of Placement ADSs. The Underlying Shares have been duly authorized for issuance and sale by the Company pursuant to
this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth
in this Agreement, will be validly issued and fully paid and non-assessable. The management board and the supervisory board of the Company
have taken or will take, as the case may be, all necessary corporate or other action to authorize the public offering of ADSs, the capital
increase, and all other actions contemplated by this Agreement. In particular, this Agreement has been duly authorized, executed and delivered
by the Company. The Registration Statement and the filing of the Registration Statement with the Commission have been duly authorized
by and on behalf of the Company, and the Registration Statement has been duly executed pursuant to such authorization by and on behalf
of the Company.
(r) The
issuance of the Placement ADSs is not subject to the preemptive or other similar rights of any securityholder of the Company or any other
person or entity. The Placement ADSs, ADRs and Underlying Shares conform to all statements relating thereto contained in the Registration
Statement, the General Disclosure Package and the Prospectus and such statements conform to the rights set forth in the instruments defining
the same. No holder of Placement ADSs will be subject to personal liability by reason of being such a holder.
(s) Registration
Rights. Except as described in the Registration Statement, the General Disclosure Package or the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities
with the Placement ADSs registered pursuant to the Registration Statement.
(t) Absence
of Violations, Defaults and Conflicts. Neither the Company nor any of its subsidiaries is (A) in violation of its charter, by-laws
or similar organizational document, (B) in default in the performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which it may be bound or to which any of the properties, assets or operations
of the Company or any of its subsidiaries is subject (collectively, “Agreements and Instruments”), except for such
defaults that would not, reasonably be expected to have, singly or in the aggregate, a Material Adverse Effect, or (C) in violation of
any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative
agency or other authority, body or agency having jurisdiction over the Company or any of its properties, assets or operations (each, a
“Governmental Entity”), except for such violations that would not reasonably be expected to have, singly or in the
aggregate, a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale
of Placement ADSs and the use of the proceeds from the sale thereof as described therein under the caption “Use of Proceeds”)
and compliance by the Company with its obligations hereunder have been duly authorized by all requisite action and do not and will not,
whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties, assets
or operations of the Company or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches,
defaults or Repayment Events or liens, charges or encumbrances that would not, singly or in the aggregate, reasonably be expected to have,
a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, by-laws or similar organizational
document of the Company or any of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of
any Governmental Entity. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of the related financing by the Company or any of its subsidiaries. All corporate approvals
on the part of the Company for the offer or sale of the Placement ADSs and the transactions contemplated hereby have been obtained.
(u) Absence
of Labor Dispute. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the best knowledge of
the Company, is imminent, and the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any
of its or any of its subsidiaries’ principal suppliers, manufacturers, customers or contractors, which in either case, would reasonably
be expected to have, singly or in the aggregate, a Material Adverse Effect.
(v) Absence
of Proceedings. Except as stated in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action,
suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any of its subsidiaries, which might reasonably be expected to have, singly or in the
aggregate, a Material Adverse Effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company
to perform its obligations under this Agreement or to consummate the transactions contemplated by the Prospectus or that are required
to be described in the Registration Statement or the Prospectus and are not so described. The aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations
are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary
routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect.
(w) Accuracy
of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, any preliminary
prospectus or the Prospectus or to be filed as exhibits to the Registration Statement (those so filed, collectively, the “Filed
Documents”) which have not been so described and filed as required. Neither the Company nor any of its subsidiaries has sent
or received any communication regarding termination of, or, where applicable, intent not to renew, any of the Filed Documents, and no
such termination or nonrenewal has been threatened by the Company or any of its subsidiaries or, to the best knowledge of the Company,
by any other party to any such contract or agreement.
(x) Absence
of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree
of, any Governmental Entity is necessary or required for the Company’s due authorization, execution and delivery of, or performance
by the Company of its obligations under, this Agreement or for the offering, issuance, sale or delivery of Placement ADSs or the consummation
of the transactions contemplated in this Agreement, except such as have been already obtained or as may be required under the 1933 Act,
the 1933 Act Regulations, the rules of the NYSE, the securities laws of any state or non-U.S. jurisdiction or the rules of Financial Industry
Regulatory Authority, Inc. (“FINRA”).
(y) Possession
of Licenses and Permits. The Company and its subsidiaries, if any, possess such permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities necessary to conduct the business
now operated by them, except where the failure so to possess would not reasonably be expected to have, singly or in the aggregate, a Material
Adverse Effect. The Company and its subsidiaries, if any, are and have been in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, reasonably be expected to have, singly or in the aggregate, a Material Adverse
Effect. All of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect would not reasonably be expected to have, singly or in the
aggregate, a Material Adverse Effect. All applications, notifications, submissions, information, claims, reports and other data utilized
as the basis for or submitted in connection with any and all requests for a Governmental License were true, complete and correct in all
material respects as of the date of submission, and all necessary or required updates, changes, corrections or modification to such applications,
notifications, submissions, information, claims, reports and data have been submitted to the Governmental Entity, except where the failure
to so submit would not, singly or in the aggregate, result in a Material Adverse Effect. Neither the Company nor any subsidiaries have
received any notice of proceedings relating to the suspension, revocation or modification of any such Governmental Licenses which, if
the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have, singly or in the aggregate, a Material
Adverse Effect, and no event has occurred which allows, or after notice or lapse of time would allow, such suspension, revocation or modification.
(z) Title
to Property. The Company and its subsidiaries, if any, have good and marketable title to all real property owned by it and good title
to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions
or encumbrances of any kind except such as (A) are described in the Registration Statement, the General Disclosure Package and the Prospectus
or (B) do not, singly or in the aggregate, materially affect the value of all such properties, taken as a whole and do not materially
interfere with the use made and proposed to be made of such properties by the Company or any of its subsidiaries. All of the leases and
subleases material to the business of the Company and its subsidiaries, if any, considered as one enterprise, and under which the Company
or any of its subsidiaries holds properties described in the Registration Statement, the General Disclosure Package or the Prospectus,
are in full force and effect, and neither the Company nor any such subsidiary has any notice of any material claim of any sort that has
been asserted by anyone adverse to its rights under any of the leases or subleases mentioned above or affecting or questioning its rights
to the continued possession of the leased or subleased premises under any such lease or sublease.
(aa) Intellectual Property. The Company
and its subsidiaries, own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights,
know how (including, without limitation, trade secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”)
necessary to carry on the business now operated by them, and the Company (i) has not received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances
which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of its subsidiaries therein,
and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly
or in the aggregate, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (ii) except as
would not reasonably be expected to have a Material Adverse Effect, there is no pending or, to the Company’s knowledge, threatened,
action, suit, proceeding or claim by others asserting that the Company or any subsidiary infringes or violates any Intellectual Property
of others and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim,
and (iii) except as would not reasonably be expected to have a Material Adverse Effect, the Company and its subsidiaries have complied
in all material respects with the terms of each agreement pursuant to which Intellectual Property has been licensed to the Company or
such subsidiary, and all such agreements are in full force and effect.
(bb) The Company and its subsidiaries comply
with all applicable data protection laws, guidelines and industry standards and have established the procedures necessary to ensure continued
compliance, except where any failure to comply and/or to maintain procedures would not have or be reasonably expected to have, individually
or in the aggregate, a Material Adverse Effect. Neither the Company nor, to the Company’s best knowledge, any of its subsidiaries
has received any notice or allegation from any competent authority (including any information or enforcement notice, or any transfer prohibition
notice) alleging that the Company or any of its subsidiaries has not complied with applicable data protection laws, guidelines and industry
standards, except where any failure to comply would not have or be reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect. No individual has claimed and, so far as the Company is aware, no grounds exist for an individual to claim, compensation
from the Company or any of its subsidiaries for breaches of applicable data protection laws or for loss or unauthorized disclosure of
Personal Data, except where any such claim would not have or be reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect. “Personal Data” means (i) a natural person’s name, street address, telephone number, e-mail address,
photograph, passport number, credit card number, bank information, or customer or account number, and (ii) any other piece of information
that allows the identification of such natural person.
(cc) The information technology systems, equipment
and software used by the Company and its subsidiaries in their respective businesses, including those used to process online order and
payment services, (the “IT Assets”) (i) operate and perform in accordance with relevant specifications and otherwise
as required by the Company’s and its subsidiaries’ respective businesses as currently conducted and (ii) have not malfunctioned
or failed at any time during the period covered by the financial statements included or incorporated by reference in the General Disclosure
Package and the Prospectus, except, in each case of (i) and (ii) above, as non-compliance with this representation would not have or be
reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. To the Company’s best knowledge, there
has been no security breach, attack or other compromise as a result of which any person has gained unauthorized access to any IT Asset
in a manner that would have or be reasonably expected to have a Material Adverse Effect.
(dd) The Company and its subsidiaries have taken
precautions that they reasonably believe to be appropriate, including contingency plans, back-up facilities and disaster recovery technology
processes consistent with industry standard practices, and necessary to protect the computer systems (hardware and software) and information
technologies and related systems (such as networks) implemented or used by the Company and its subsidiaries against (i) overload, failure,
limitation of system capacities, manual misuses and other interruptions of regular business operations, (ii) fire, explosion, flood, any
calamity or other interruptions of regular business operations and (iii) unauthorized access or manipulation by third parties, in order
to ensure that the events under (i) through (iii) above would not have or be reasonably expected to have a Material Adverse Effect.
(ee) IT. All IT Assets used or required
for use by the Company and its subsidiaries are either owned by, or properly licensed or leased to, the Company or its subsidiaries and
are not dependent on any facilities or systems which are not under the ownership or control of the Company or its subsidiaries; the Company
and its subsidiaries are not in default under any such licenses or leases, and there are no grounds on which they might be terminated;
and the IT Assets have (and each part of them has) sufficient capacity and performance to meet the processing and other business requirements
of the Company and its subsidiaries and the anticipated requirements for at least the next twelve months; except, in each case of the
above, as non-compliance with this representation would have or be reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect.
(ff) Environmental Laws. Except as described
in the Registration Statement, the General Disclosure Package and the Prospectus and except as would not, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (A) neither the Company nor any subsidiary is in violation of any applicable
statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, “Environmental Laws”), (B) the Company and its subsidiaries, if any, have all permits, authorizations
and approvals required under any applicable Environmental Laws, (C) there are no pending or to the knowledge of the Company threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the Company or any of its subsidiaries and (D) there are no events
or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding
by any private party or Governmental Entity, against or affecting the Company or any of its subsidiaries relating to Hazardous Materials
or any Environmental Laws. To the best knowledge of the Company, there are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to
third parties) that would have or be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(gg) Accounting Controls and Disclosure Controls.
Other than as disclosed, the Company maintains effective internal control over financial reporting (as defined under Rule 13a-15 and Rule
15d-15 of the 1934 Act Regulations) and a system of internal accounting controls sufficient to provide reasonable assurances that: (A)
transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets; (C) access to assets
is permitted only in accordance with management’s general or specific authorization; (D) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; (E) the
interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus fairly presents in all material respects the required information and is prepared in accordance with the Commission’s
rules and guidelines applicable thereto and (F) the Company and its subsidiaries have made and kept books, records and accounts which,
in reasonable detail, accurately and fairly reflect the transactions and dispositions of assets. Other than as disclosed, since the end
of the Company’s most recent audited fiscal year, there has been (1) no material weakness in the Company’s internal control
over financial reporting (whether or not remediated) and (2) no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
The Company maintains disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 of the 1934 Act Regulations) that
comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information
relating to the Company and its subsidiaries is made known to the Company’s principal executive officer and principal financial
officer by others within those entities; and, other than as disclosed, such disclosure controls and procedures are effective.
(hh) Payment of Taxes. Except as described
in the Prospectus, all tax returns of the Company and its subsidiaries required by law to be filed have been filed and all taxes required
to be paid by the Company and its subsidiaries (including pursuant to any assessment received by the Company or any of its subsidiaries),
have been paid, except (A) insofar as the failure to file such returns or pay such taxes would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect or (B) for such taxes, if any, as are being contested in good faith and as to which adequate
reserves have been established by the Company in accordance with IFRS. There is no tax deficiency that has been, or could reasonably be
expected to be, asserted against the Company or any of its subsidiaries, properties or assets that could individually or in the aggregate
have a Material Adverse Effect (except for cases in which a tax authority in the course of an ongoing tax audit has notified tax reassessments
to the Company or its subsidiaries for potential tax liabilities, which are contested in good faith and for which reserves required by
IFRS have been created in the financial statements of the Company). The charges, accruals and reserves on the books of the Company in
respect of tax liability for any accounting periods or years not finally determined are adequate to meet any assessments or re-assessments
for additional tax for any accounting periods or years not finally determined, except to the extent of any inadequacy that would not reasonably
be expected to have, singly or in the aggregate, a Material Adverse Effect.
(ii) No
transaction, stamp, issue, registration, documentary, sales or other issuance or transfer taxes or duties (“Stamp Taxes”),
and no capital gains, income, withholding or other taxes or duties, are payable by or on behalf of the Agents, the Company or any of its
subsidiaries in the Federal Republic of Germany or to any taxing authority thereof or therein in connection with: (i) the creation, allotment
and issuance of the Underlying Shares represented by the Placement ADSs; (ii) the creation, issuance, deposit, sale and delivery of the
Placement ADSs by the Company; (iii) the purchase from the Company, and the sales and deliveries by the Agents of the Placement ADSs to
purchasers thereof pursuant to this Agreement, (iv) the execution and delivery of this Agreement or the Deposit Agreement or any other
document to be furnished hereunder or consummation of the transactions contemplated by this Agreement or the Deposit Agreement, or (v)
the resale and delivery of the Placement ADS by the Agents in the manner contemplated herein.
(jj) Subsequent to the respective dates as of
which information is given in each of the Registration Statement, the General Disclosure Package and the Prospectus, (i) the Company and
its subsidiaries have not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction;
(ii) the Company has not purchased any of its outstanding share capital, nor declared, paid or otherwise made any dividend or distribution
of any kind on its share capital other than ordinary and customary dividends; and (iii) there has not been any material change in the
share capital, short term debt or long term debt of the Company and its subsidiaries, except in each case as described in each of the
Registration Statement, the General Disclosure Package and the Prospectus, respectively.
(kk) No subsidiary of the Company is currently
prohibited, directly or indirectly, under any applicable laws or regulations, from paying any dividends to its shareholders, from making
any other distribution on such subsidiary’s share capital, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary, except,
in each case, for any prohibition that would not have or be reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect. No affiliate of the Company or shareholder of such affiliate, as the case may be, is currently prohibited, directly or
indirectly, under any applicable laws or regulations, from making any payments or other distributions to the Company and/or its subsidiaries,
or from repaying to the Company and/or its subsidiaries any loans or advances made to such affiliate or shareholder of such affiliate,
as the case may be, from the Company and/or its subsidiaries.
(ll) Each benefit and compensation plan, agreement,
policy and arrangement that is maintained, administered or contributed to by the Company or any of its subsidiaries or any of their respective
controlled affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act) for current or former employees or directors
of, or independent contractors with respect to, the Company or any of its subsidiaries or any of their respective affiliates, or with
respect to which any of such entities could reasonably be expected to have any current, future or contingent liability or responsibility,
has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations and the
Company and each of its subsidiaries and each of their respective affiliates have complied with all applicable statutes, orders, rules
and regulations in regard to such plans, agreements, policies and arrangements, except in each case for any failure to comply with the
respective terms and the requirements of any applicable statutes, orders, rules and regulations as would not have or be reasonably expected
to have, individually or in the aggregate, a Material Adverse Effect; the fair market value of the assets of each such plan, agreement,
policy and arrangement which is required or intended to be funded (excluding for these purposes accrued but unpaid contributions) exceeds
the present value of all benefits accrued or earned or payments due under such plan, agreement, policy or arrangement determined using
reasonable actuarial assumptions, except where any failure to exceed such present value would not have or be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect; and the liabilities reflected in the relevant entity’s financial statements
with respect to each such plan, agreement, policy and arrangement that is not required or intended to be funded accurately reflect the
present value of all benefits earned or accrued or payments due under such plan, agreement, policy or arrangement determined using reasonable
actuarial assumptions, except where any failure to reflect such present value would not have or be reasonably expected to have, individually
or in the aggregate, a Material Adverse Effect.
(mm) Insurance. The Company and its subsidiaries,
if any, carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering
such risks as is generally maintained by companies engaged in the same or similar business, and all such insurance is in full force and
effect. Neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the
Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost
that would not have or be reasonably expected to have a Material Adverse Effect.
(nn) Investment Company Act. The Company
is not, and after giving effect to the offering and sale of the Placement ADSs and the application of the proceeds thereof as described
in the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company
Act of 1940, as amended.
(oo) Absence
of Manipulation. Neither the Company nor any subsidiary or affiliate of the Company, nor any of their respective directors, officers
or affiliates, acting on its behalf has taken, nor will the Company or any such subsidiary or affiliate take, directly or indirectly,
any action which is designed, or would be expected, to cause or result in, or which constitutes, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of any Placement ADSs or to result in a violation of Regulation
M under the 1934 Act.
(pp) Foreign Corrupt Practices Act. None
of the Company, any of its subsidiaries, if any, or, to the knowledge of the Company, any director, officer, agent, employee, affiliate
or other person acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of either (A) the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality
of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or
other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such
term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention
of the FCPA or (B) the U.K. Bribery Act 2010 (the “Bribery Act”), and the Company, its subsidiaries, if any, and, to
the knowledge of the Company, its other affiliates have conducted their businesses in compliance with the FCPA and the Bribery Act and
have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith.
(qq) Money Laundering Laws. The operations
of the Company and its subsidiaries are and have been conducted at all times in material compliance with applicable U.S. and German financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money
Laundering Laws”). No action, suit or proceeding by or before any Governmental Entity involving the Company or any of its subsidiaries
with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(rr) OFAC. None of the Company, any of
its subsidiaries, or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person acting on behalf
of the Company or any of its subsidiaries is (A) an individual or entity (“Person”) currently the subject or target
of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s
Office of Foreign Assets Control, the United Nations Security Council, the European Union, His Majesty’s Treasury, the Swiss Secretariat
of Economic Affairs or other relevant sanctions authority (collectively, “Sanctions”), or (B) located, organized or
resident in a country or territory that is the subject of Sanctions. The Company will not, directly or indirectly, use the proceeds of
the sale of the Placement ADSs, or lend, contribute or otherwise make available such proceeds to any of its subsidiaries, joint venture
partners or other Persons, to fund any activities of or business with any Person, or in any country or territory, that, at the time of
such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating
in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five years, the Company and its
subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with
any Person, or in any country or territory, that at the time of the dealing or transaction is or was in violation of applicable Sanctions.
The foregoing shall apply only to the extent it does not result in a violation of or conflict with Section 7 of the German Foreign Trade
Ordinance (Außenwirtschaftsverordnung), Regulation (EC) No. 2271/96 or any similar applicable anti-boycott law or regulation.
(ss) Statistical and Market-Related Data.
Any statistical and market-related data included in the Registration Statement, the General Disclosure Package or the Prospectus are based
on or derived from sources that the Company reasonably and in good faith believes are reliable and accurate, and such data is consistent
with the sources from which they are derived.
(tt) No Commissions. Neither the Company
nor any of its subsidiaries are a party to any contract, agreement or understanding with any person (other than as contemplated by this
Agreement) that would give rise to a valid claim against the Company or any of its subsidiaries or the Agents for a brokerage commission,
finder’s fee or like payment in connection with the offering and sale of any Placement ADSs.
(uu) Actively Traded Security. The ADSs
are an “actively traded security” exempted from the requirements of Rule 101 of Regulation M under the 1934 Act by subsection
(c)(1) of such rule.
(vv) Cybersecurity. (A) There has been
no security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Company or its subsidiaries,
if any, information technology and computer systems, networks, hardware, software, data and databases (including the data and information
of their respective customers, employees, suppliers, vendors and any third party data maintained, processed or stored by the Company and
its subsidiaries, and any such data processed or stored by third parties on behalf of the Company and its subsidiaries), equipment or
technology (collectively, “IT Systems and Data”); (B) neither the Company nor its subsidiaries, if any, have been notified
of, and have no knowledge of any event or condition that would result in, any security breach or incident, unauthorized access or disclosure
or other compromise to their IT Systems and Data and (C) the Company and its subsidiaries, if any, have implemented appropriate controls,
policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security
of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards,
except, with respect to clauses (A) and (B), for any such security breach or incident, unauthorized access or disclosure, or other compromise
as would not, singly or in the aggregate, result in a Material Adverse Effect. The Company and its subsidiaries, if any, are presently
in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator
or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems
and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
(ww) Deposit Agreement. The Deposit Agreement
has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general principles
of equity; upon due issuance by the Depositary of ADRs evidencing ADSs against the deposit of the Underlying Shares in respect thereof
in accordance with the Deposit Agreement, such ADRs will be duly and validly issued and the holders and beneficial owners thereof will
be entitled to the rights specified therein and in the Deposit Agreement; and the Deposit Agreement and the ADRs conform in all material
respects to the depictions thereof contained in the Prospectus.
(xx) Except
as described in the Registration Statement, the General Disclosure Package or the Prospectus, the Company has not sold, issued or distributed
any Shares during the six month period preceding the date hereof, including any sales pursuant to Regulation D or S of, the Securities
Act, other than shares issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans or
pursuant to outstanding options, rights or warrants.
(yy) It is not necessary that this Agreement,
the Deposit Agreement, the Registration Statement, the Prospectus or any other document be filed or recorded with any court or other authority
in the Federal Republic of Germany.
(zz) Under the current laws and regulations
of the Federal Republic of Germany, all dividends and other distributions declared and payable on the Shares in cash may be freely remitted
out of the Federal Republic of Germany and may be paid in, or freely converted into, United States dollars, in each case without there
being required any consent, approval, authorization or order of, or qualification with, any court or governmental agency or body in the
Federal Republic of Germany.
(aaa) Except as described in the Prospectus,
dividends and other distributions on the Shares will not be subject to withholding or other taxes under the current laws applicable in
the Federal Republic of Germany and are otherwise payable free of any other tax, withholding or deduction in the Federal Republic of Germany
and without the necessity of obtaining any consent, authorization, order, registration or qualification of or with any court or governmental,
regulatory or stock exchange authority having jurisdiction over the Company.
(bbb) The Company believes that it was not a
“passive foreign investment company” (“PFIC”) for U.S. federal income tax purposes for its most recent
taxable year and does not expect to be a PFIC for its current taxable year or in the foreseeable future.
(ccc) The Company is a “foreign private
issuer” as defined in Rule 405 of the Securities Act.
(ddd) The choice of law of the State of New
York as the governing law of this Agreement is or will be a valid choice of law under the laws of the Federal Republic of Germany and
will be given effect by the courts of the Federal Republic of Germany.
(eee) Neither the Company nor any of its properties
or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution or otherwise) in (i) any jurisdiction in which it owns or leases property or assets,
(ii) the United States or the State of New York or (iii) Germany or any political subdivision thereof or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect
to itself or its property and assets, or this Agreement and the Deposit Agreement or actions to enforce judgments in respect thereof.
Any certificate signed by any officer or other
authorized signatory of the Company and delivered to the Agents or to counsel for the Agents shall be deemed a representation and warranty
by the Company to the Agents as to the matters covered thereby.
Section 2. Agreements to Sell and Purchase.
(a) The
Company hereby agrees to issue and sell to the Agents, and the Agents, on the basis of the representations, warranties and agreements
set forth herein and subject to the conditions set forth herein, agree on the date of the registration of the share capital increase (the
“Capital Increase Registration Date”) (i) to purchase, severally and not jointly, from the Company 40,455,472
Underlying Shares, (ii) through RBC Capital Markets (Europe) GmbH (“RBC Germany”), acting in its own name, to subscribe,
for the Underlying Shares at a price of €1.00 per Share (the “Issue Price”), and (iii) through RBC Germany to
pay as of the date of this Agreement to the Company the Issue Price for each of the subscribed Underlying Shares by crediting the Issue
Price multiplied by the number of Underlying Shares (the “Aggregate Issue Price”) into a special account opened at
Joh. Berenberg, Gossler & Co. KG (“Berenberg Germany”) in Germany (IBAN: DE08 2012 0000 0004 5130 08, SWIFT: BEGODEHHXXX,
Currency: EUR) and entitled “Sonderkonto Kapitalerhöhung 2024, 2024-00-04513-008”(the “Capital Increase
Account”), such account to be non-interest bearing and free of charges (including negative interest).
(b) For
purposes of registering the capital increase representing the Underlying Shares (the “Capital Increase”) in the Commercial
Register, RBC undertakes (i) that RBC Germany, subject to the conditions set forth herein, shall deliver to the notary public Christian
Steinke, Gleiss Lutz, Washingtonplatz 3, 10557 Berlin, Germany (the “Notary”) or to Noerr Partnerschaftsgesellschaft
mbB, German counsel for the Company, an executed subscription certificate (Zeichnungsschein) in the form attached as Exhibit A
hereto (the “Subscription Certificate”) dated July 30, 2024 (the “Subscription Date”), duly signed
in duplicate form pursuant to Section 185 of the German Stock Corporation Act (Aktiengesetz or “AktG”)
for the Underlying Shares, such subscription certificate, in accordance with its terms, to expire at midnight (24:00 hours CET) on August
30, 2024 and (ii) that RBC Germany, subject to the conditions set forth herein, will effect payment of the Aggregate Issue Price as described
and defined in Section 2(a) above, as payment pursuant to Section 36a (1) AktG, to the Capital Increase Account. Upon crediting the
Aggregate Issue Price, Berenberg undertakes that Berenberg Germany will, subject to the fulfillment of the conditions set out herein,
cause delivery to the Notary or to Noerr Partnerschaftsgesellschaft mbB, German counsel for the Company, and release of, a bank certificate
(Einzahlungsbestätigung) in the form attached as Exhibit B hereto (the “Bank Certificate”), confirming
such credit (Sections 188 (2), 36 (2), 36a (1) and 37 (1) AktG).
(c) Promptly
upon receipt of the Subscription Certificate and of the Bank Certificate pursuant to Section 2(b) above, the Company shall take all reasonable
measures to effect the registration of the capital increase in the Commercial Register within seven calendar days from the Subscription
Date or such later date as agreed with RBC Germany. Copies of all documents filed with the Commercial Register shall be delivered to RBC
Germany in pdf form. Promptly upon the registration of the capital increase in the Commercial Register, the Company shall, by telefax
or pdf-document attached to an email, with the original copy to follow promptly by courier, furnish RBC Germany and/or an affiliate designated
by RBC Germany, with a certified copy of the registration notice of the Commercial Register and a certified excerpt from the Commercial
Register in chronological order, each evidencing such capital increase. If the registration with the Commercial Register of the increase
of the Company’s registered share capital in an amount of €40,455,472 has not been effected by midnight (24:00 hours CET) on
August 30, 2024, the Subscription Certificate for the Underlying Shares shall expire, all obligations of RBC Germany to subscribe for
the Underlying Shares shall terminate and the Company shall return the Subscription Certificate to RBC Germany and the Bank Certificate
to Berenberg Germany and instruct Berenberg Germany to release any funds credited to the Capital Increase Account for the benefit of RBC
Germany. In this event, the reimbursement obligations of the Company pursuant to Section 5(f) and the provisions set out in Sections 7,
8, 15, 16, 17 and 18 of this Agreement shall remain in full force and effect.
(d) Promptly
on the Capital Increase Registration Date, the Company shall deliver to RBC or a designated nominee of RBC one or more global share certificate(s),
in the form set forth as Exhibit C, representing the Shares. RBC undertakes to cause the delivery of the global share certificate(s) through
Berenberg Germany to Clearstream Banking AG, Frankfurt am Main, (the “Custodian”) and that RBC Germany will transfer
title to the Underlying Shares to the Depositary on the Capital Increase Registration Date by way of entering into a share transfer agreement
with the Depositary, to enable the delivery by the Depositary of the Placement ADSs in respect of the Underlying Shares to the Agents
or to investors, as the case may be, by way of book-entry.
Section 3. Sale and Delivery of Placement ADSs
(a) Subject
to the terms and conditions set forth herein, the Company agrees to issue and sell Placement ADSs through the Agents during the term of
this Agreement as set forth in Section 11. Sales of the Placement ADSs through the Agents will be made by means of ordinary brokers’
transactions on the NYSE, in the over-the-counter market, or in privately negotiated transactions, which may include block trades, or
otherwise, at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices, in
the Agents’ discretion.
(b) The
Placement ADSs are to be sold by the Agents on an agented basis on any day (other than a day on which NYSE is scheduled to close prior
to its regular weekday closing time (each, a “Trading Day”). Subject to the terms and conditions specified herein (including,
without limitation, the accuracy of the representations and warranties of the Company and the performance by the Company of its covenants
and other obligations, contained herein and the satisfaction of the additional conditions specified in Section 6 hereof), the Agents shall
use their commercially reasonable best efforts, consistent with their normal trading and sales practices and applicable law and regulations,
to sell the Placement ADSs during the term of this Agreement at the available market price. The Company and the Agents each acknowledge
and agree that (A) there can be no assurance that the Agents will be successful in selling any Placement ADSs and (B) the Agents
will not incur any liability or obligation to the Company if they fail to sell Placement ADSs for any reason other than a failure to use
their respective commercially reasonable best efforts, consistent with their normal trading and sales practices and applicable law and
regulations, to sell such Placement ADSs as required by this Agreement.
(c) The
gross sales price of any Placement ADSs sold pursuant to this Agreement by the Agents shall be equal to the market price prevailing at
the time of sale for the Placement ADSs sold by the Agents on NYSE or otherwise, at prices related to prevailing market prices or at negotiated
prices, but, unless otherwise agreed, at least at a price that is not more than 3.00% below the then prevailing market price. The combined
compensation payable to the Agents for sales of Placement ADSs shall be up to 3.00% of the gross sales price for such Placement ADSs.
The remaining proceeds, after deduction of the Aggregate Issue Price as set forth in Section 5(c), and any further deduction for any transaction
fees and Stamp Taxes imposed by any Governmental Entity or self-regulatory organization in respect of such sales, shall constitute the
net proceeds to the Company for such sales (the “Net Proceeds”). The Agents shall notify the Company as promptly as
practicable if any deduction referenced in the preceding sentence will be made.
(d) The
Agents shall provide written confirmation to the Company and Depositary following the close of trading on NYSE on each Trading Day on
which Placement ADSs are sold under this Agreement setting forth the number of Placement ADSs sold on such day, the aggregate gross sales
proceeds of the Placement ADSs, the aggregate Net Proceeds to the Company and the aggregate compensation payable by the Company to the
Agents with respect to such sales.
(e) Under
no circumstances shall the aggregate number of Placement ADSs offered or sold pursuant to this Agreement exceed the aggregate number of
Placement ADSs (i) referred to in the preamble paragraph of this Agreement, as reduced by prior sales of Placement ADSs under this Agreement,
(ii) available for sale under the Registration Statement or (iii) duly authorized from time to time to be issued and sold under this Agreement
by the Company or approved for listing on NYSE, and, in each case referred to in clause (ii) and (iii), notified to the Agents in writing.
The Agents shall have no responsibility for maintaining records with respect to Placement ADSs available for sale under the Registration
Statement or for determining the number of Placement ADSs duly authorized by the Company.
(f) If
the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act are not satisfied with respect to the Company
or the Placement ADSs, the Company shall promptly notify the Agents and future offers and sales of Placement ADSs through the Agents on
an agented basis under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment
of each party.
(g) Notwithstanding
any other provision of this Agreement, the Agents shall not offer or sell, any Placement ADSs (i) without prejudice to the Agents’
ability to sell Placement ADSs in accordance with Section 10(c) or Section 11, during any period in which the Company is, or could be
deemed to be, in possession of material non-public information or (ii) except as provided in Section 3(h) hereof, at any time during the
period commencing on the 10th business day prior to the time the Company issues a press release containing, or shall otherwise
publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”)
through and including the time that is 24 hours after the time that the Company files a report on Form 6-K or an Annual Report on Form
20-F (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods,
as the case may be, covered by such Earnings Announcement.
(h) Notwithstanding
clause (ii) of Section 3(g) hereof, if the Company wishes to offer or sell Placement ADSs to the Agents as sales agents at any time during
the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall first (i)
prepare and deliver to the Agents (with a copy to counsel for the Agents) a report on Form 6-K that includes substantially the same financial
and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement
(other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 6-K”),
in form and substance reasonably satisfactory to the Agents, and, prior to its filing, obtain the written consent of the Agents to such
filing (which consent shall not be unreasonably withheld), (ii) provide the Agents with the officers’ certificate, opinions and
letters of counsel and accountants’ letter specified in Section 4(o), (p) and (q), respectively, hereof, (iii) afford the Agents
the opportunity to conduct a due diligence review in accordance with Section 4(s) hereof prior to filing such Earnings 6-K and (iv) file
such Earnings 6-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’
certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 3(h) shall not relieve the Company from
any of its obligations under this Agreement with respect to any Annual Report on Form 20-F, including, without limitation, the obligation
to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Sections 4(o),
(p) and (q), respectively, hereof, and (B) this Section 3(h) shall in no way affect or limit the operation of clause (i) of Section 3(g)
hereof, which shall have independent application. The Agents shall not offer or sell any Placement ADSs while in possession of material
non-public information. For the avoidance of doubt, the parties hereto agree that the Agents shall be permitted to offer and sell Placement
ADSs on or about the Capital Registration Date following the publication of the Earnings Announcement.
Section 4. Covenants. The Company agrees
with the Agents:
(a) Compliance
with Securities Regulations and Commission Requests. The Company, subject to Section 4(b) and 4(c) hereof, will comply with the requirements
of Rule 430B, and will notify the Agents as soon as reasonably possible, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement or any new registration statement relating to the Placement ADSs shall become effective or any
amendment or supplement to the Prospectus shall have been filed (other than an amendment or supplement providing solely for the determination
of the terms of an offering of securities unless related to an offering of Placement ADSs, as to which the Company will only be obligated
to notify the Agents), (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Prospectus, including any document incorporated by reference therein,
or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto or any notice of objection to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) or of the issuance of any order preventing or suspending the use of any preliminary prospectus
or the Prospectus or any amendment or supplement thereto, or of the suspension of the qualification of any Placement ADSs for offering
or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant
to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding
under Section 8A of the 1933 Act in connection with any offering of Placement ADSs. The Company will effect all filings required under
Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such
steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received
for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop, prevention or suspension order and, if any such order is issued, to obtain the lifting thereof
as soon as reasonably possible. In the event of any issuance of a notice of objection, by the Commission, the Company shall take all necessary
action to permit offers and sales of Placement ADSs by or through the Agents, including, without limitation, amending the Registration
Statement or filing a new shelf registration statement relating thereto.
(b) Continued
Compliance with Securities Laws. The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations so as to permit the completion of sales of Placement ADSs as contemplated in this Agreement and in the Registration Statement,
the General Disclosure Package and the Prospectus. If any event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Agents or counsel to the Company, to (i) amend the Registration Statement in order that the Registration
Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) amend or supplement the General Disclosure Package or the Prospectus in order that
the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package
or the Prospectus, as the case may be, including, without limitation, the filing of any document incorporated by reference therein, in
order to comply with the requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations, the Company
will promptly (A) give the Agents written notice of such event or condition, (B) prepare any amendment or supplement as may be necessary
to correct such statement or omission or to comply with such requirements and, a reasonable amount of time prior to any proposed filing
or use, furnish the Agents with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement
and use its reasonable best efforts to have any amendment to the Registration Statement declared effective by the Commission as soon as
possible; provided, however, that the Company shall not file or use any such amendment or supplement to which the Agents, or counsel for
the Agents shall reasonably object.
(c) Filing
or Use of Amendments and Supplements. The Company will give the Agents written notice of its intention to file or use (i) any
amendment to the Registration Statement or any amendment or supplement to the General Disclosure Package or the Prospectus (other than
an amendment or supplement thereto relating solely to the offering of securities unless related to an offering of Placement ADSs), whether
pursuant to the 1933 Act, the 1934 Act or otherwise or (ii) any new Prospectus Supplement that includes information in addition to the
information referred to in Section 4(n) hereof, and will furnish the Agents, with copies of any such document a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Agents, or counsel for
the Agents shall reasonably object.
(d) Delivery
of Registration Statements. The Company has furnished or will deliver to the Agents and counsel for the Agents, without charge, signed
copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and
certificates of experts. The signed copies of the Registration Statement and each amendment thereto furnished to the Agents and counsel
for the Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(e) Delivery
of Prospectuses. The Company will furnish to the Agents, without charge, upon execution of this Agreement and thereafter during the
period in which a prospectus is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”),
would be) required by the 1933 Act to be delivered in connection with any offer or sale of Placement ADSs, such number of copies of the
Prospectus (as amended or supplemented) as the Agents, may reasonably request. The Company will also furnish, upon request of the Agents,
as the case may be, copies of the Prospectus (as amended or supplemented) to each exchange or market on which sales of Placement ADSs
were made as may be required by the rules and regulations of such exchange or market. The Prospectus and any amendments or supplements
thereto furnished in accordance with this Section will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(f) Reporting
Requirements. The Company, during the period in which a prospectus is (or, but for the exception afforded by Rule 172, would be) required
by the 1933 Act to be delivered in connection with any offer or sale of Placement ADSs, will file all documents required to be filed with
the Commission pursuant to the 1934 Act within the time periods prescribed by, and meeting the requirements of, the 1934 Act and the 1934
Act Regulations. Additionally, the Company shall report the use of the net proceeds from the sale of any Placement ADSs as may be required
under the 1933 Act and the 1933 Act Regulations, including, if applicable, Rule 463 of the 1933 Act Regulations.
(g) Blue
Sky Qualifications. The Company will use its reasonable best efforts, in cooperation with the Agents to qualify the Placement ADSs
for offering and sale under the applicable securities laws of such states as the Agents, may, from time to time, designate and to maintain
such qualifications in effect so long as required to complete the sale of the Placement ADSs contemplated by this Agreement; provided,
however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(h) Earnings
Statement. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Agents the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(i) Use
of Proceeds. The Company will use the net proceeds received by it from the sale of the Placement ADSs pursuant to this Agreement in
the manner specified in the Registration Statement, the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(j) Listing.
The Company will use its reasonable best efforts to effect and maintain the listing of the Placement ADSs on, and satisfy the requirements
of, the NYSE.
(k) Notice
of Certain Actions. During the term of this Agreement, the Company will not, unless it gives the Agents at least two business days’
prior written notice, (i) directly or indirectly offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any Shares or ADSs
or any securities convertible into or exercisable or exchangeable for Shares or ADSs or file any registration statement under the 1933
Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or transaction that transfers, in whole or
in part, directly or indirectly, the economic consequence of ownership of the Shares or ADSs, whether any such swap, agreement or transaction
described in clause (i) or (ii) above is to be settled by delivery of Shares or ADSs or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Placement ADSs to be sold hereunder, (B) any Shares or ADSs issued by the Company upon the
exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Registration Statement,
the General Disclosure Package and the Prospectus, (C) any Shares or ADSs issued or options to purchase Shares or ADSs granted pursuant
to existing employee benefit plans of the Company referred to in the Registration Statement, the General Disclosure Package and the Prospectus,
(D) any Shares or ADSs issued pursuant to any non-employee director stock plan or dividend reinvestment plan referred to in the Registration
Statement, the General Disclosure Package and the Prospectus, or (E) the filing of one or more registration statements on Form S-8 with
the Commission with respect to shares of ADSs or Shares issued or issuable under any equity compensation or incentive plans. Upon receipt
of any written notice contemplated above, the Agents may suspend their activity under this Agreement for such period of time as deemed
appropriate by such Agents.
(l) Issuer
Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Agents, it will not make any
offer relating to the Placement ADSs that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free
writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under
Rule 433. The Company represents that it has treated or agrees that it will treat each such free writing prospectus consented to by the
Agents as an “issuer free writing prospectus,” as defined in Rule 433, and that it will comply with the applicable requirements
of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record keeping. If at any
time following issuance of an Issuer Free Writing Prospectus any event shall occur or condition shall exist as a result of which such
Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, any preliminary
prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading,
the Company will promptly notify the Agents and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus
to eliminate or correct such conflict, untrue statement or omission.
(m) No
Stabilization or Manipulation. The Company agrees not to, and agrees to cause its subsidiaries and controlled affiliates not to, take,
directly or indirectly, any action which is designed, or would reasonably be expected, to cause or result in, or which constitutes, the
stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any Placement ADSs or to
result in a violation of Regulation M under the 1934 Act.
(n) Update
of Activity under this Agreement. The Company shall disclose (i) in each Annual Report on Form 20-F filed by the Company in respect
of any fiscal period in which sales of Placement ADSs were made by or through the Agents under this Agreement (each date on which any
such document or amendment thereto is filed, a “Company Periodic Report Date”), or (ii) to the extent required by applicable
law and/or interpretations of the Commission, in Prospectus Supplements for each such fiscal period, the number of Placement ADSs sold
by or through the Agents under this Agreement during such fiscal period and the net proceeds received by the Company and the aggregate
compensation paid by the Company to the Agents with respect to such sales.
(o) Delivery
of Certificates. On (A) the Capital Increase Registration Date, and (B) promptly after each (i) date on which the Registration Statement
shall be amended or a new registration statement relating to the Placement ADSs shall become effective or the Prospectus shall be amended
or supplemented (other than (1) by an amendment or supplement providing solely for the determination of the terms of securities, including
the Placement ADSs, (2) in connection with the filing of a Prospectus Supplement that contains solely the information referred to in Section
4(n) hereof, or (3) in connection with the filing of any report on Form 6-K (other than an Earnings 6-K) (each such date, a “Registration
Statement Amendment Date”), (ii) date on which an Earnings 6-K shall be filed with the Commission as contemplated by Section
3(h) hereof (a “Company Earnings Report Date”) and (iii) Company Periodic Report Date, and (C) promptly after each
reasonable request by the Agents (each date of any such request by the Agents, a “Request Date”), the Company will
furnish or cause to be furnished to the Agents, an officers’ certificate, dated such Capital Increase Registration Date, such Registration
Statement Amendment Date, such Company Earnings Report Date, such Company Periodic Report Date or such Request Date, as the case may be,
in form and substance reasonably satisfactory to the Agents, to the effect that the statements contained in each of the officers’
certificate referred to in Section 6(g) hereof, the Depositary’s certificate referred to in Section 6(j) and the secretary’s
certificate referred to in Section 6(n) hereof that were last furnished to the Agents are true and correct as of the date of such certificate
as though made at and as of the date of such certificate (except that such statements shall be deemed to relate to the Registration Statement,
the General Disclosure Package and the Prospectus as amended and supplemented at the date of such certificate) or, in lieu of such certificate,
certificates of the same tenor as the certificate referred to in Section 6(g)hereof, but modified as necessary to relate to the Registration
Statement, the General Disclosure Package and the Prospectus as amended and supplemented at the date of each such certificate.
(p) Delivery
of Opinions and Letters of Counsel. On (A) the Capital Increase Registration Date, and (B) promptly after each Registration Statement
Amendment Date, Company Earnings Report Date, Company Periodic Report Date or Request Date, the Agents shall be furnished the written
opinions and letters of each of counsel to the Company (who shall be reasonably acceptable to the Agents) and counsel to the Agents, dated
such Capital Increase Registration Date, such Registration Statement Amendment Date, such Company Earnings Report Date, such Company Periodic
Report Date or such Request Date, as the case may be, in form and substance reasonably satisfactory to the Agents, of the same tenor as
the respective opinions and letters referred to in Sections 6(c), 6(d) and 6(e), as applicable, hereof but modified as necessary to relate
to the Registration Statement, the General Disclosure Package and the Prospectus as amended and supplemented to the date of such opinion
and letter or, in lieu of any such opinion and letter, counsel last furnishing such opinion and letter to the Agents, shall furnish the
Agents, with a letter substantially to the effect that the Agents, may rely on such counsel’s last opinion and letter to the same
extent as though each were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter
shall be deemed to relate to the Registration Statement, the General Disclosure Package and the Prospectus as amended and supplemented
to the date of such letter authorizing reliance).
(q) Delivery
of Accountants’ Letters. On (A) the Capital Increase Registration Date, and (B) promptly after each Registration Statement Amendment
Date, Company Earnings Report Date, Company Periodic Report Date or Request Date, the Company will cause its independent accountants to
furnish to the Agents a letter, dated such Capital Increase Registration Date, such Registration Statement Amendment Date, such Company
Earnings Report Date, such Company Periodic Report Date or such Request Date, as the case may be, in form and substance reasonably satisfactory
to the Agents, of the same tenor as the letter referred to in Section 6(f) hereof but modified as necessary to relate to the Registration
Statement, the General Disclosure Package and the Prospectus as amended and supplemented to the date of such letter.
(r) Trading
in the ADSs. The Company consents to the Agents trading in the Company’s ADSs for their own account and for the account of their
clients at the same time as sales of Placement ADSs occur pursuant to this Agreement; provided that the Company is not responsible
for the compliance by the Agents with applicable laws and regulations (including Regulation M) that apply to such Agents with respect
to any such trading. For the avoidance of doubt, the representations, warranties and covenants of the Company in this Agreement are made
solely with respect to the offering of the Placement ADSs hereunder and do not apply to such trading.
(s) Due
Diligence Review. The Company will cooperate with any due diligence review reasonably requested by the Agents or counsel for the Agents,
fully and in a timely manner, in connections with offers and sales of Placement ADSs from time to time, including, without limitation,
and upon reasonable notice, providing information and making available documents and appropriate corporate officers, during regular business
hours and at the Company’s principal offices.
(t) Renewal
Deadline. If, immediately prior to the third anniversary of the initial effective date of the Registration Statement (the “Renewal
Deadline”), this Agreement is still in effect, the Company will, prior to the Renewal Deadline, (i) promptly notify the Agents
and (ii) promptly file, if it is eligible to do so, an automatic shelf registration statement relating to the Placement ADSs, in a form
and substance satisfactory to the Agents. If, at the time the Company intends to file such a new shelf registration statement, it is not
eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, (i) promptly notify
the Agents, (ii) promptly file a new shelf registration statement on the proper form relating to the Placement ADSs, in a form and substance
satisfactory to the Agents, (iii) use its reasonable best efforts to cause such new shelf registration statement to be declared effective
within 60 days after the Renewal Deadline and (iv) promptly notify the Agents of such effectiveness. The Company will take all other action
necessary or appropriate to permit the offering and sale of the Placement ADSs to continue as contemplated in the expired Registration
Statement. References herein to the “Registration Statement” shall include such new shelf registration statement or such new
shelf registration statement, as the case may be.
(u) Depositary.
The Company has engaged and will maintain, at its sole expense, a depositary for its ADSs.
(v) The
Company covenants with the Agents that, without the prior written consent of RBC as representative of the Agents, it will not, prior to
the completion of the distribution of the Placement ADSs, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly
or indirectly, any shares of the capital stock or any securities convertible into or exercisable or exchangeable for Shares or (2) enter
into, or publicly disclose the intention to enter into, any swap or other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of the Shares, whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Shares or such other securities, in cash or otherwise or (3) file any registration statement with the Commission
relating to the offering of any Shares or any securities convertible into or exercisable or exchangeable for Shares. The restrictions
contained in this paragraph shall not apply to the Placement ADSs to be sold hereunder or the issuance of securities under employee benefit
plans registered on Form S-8.
(w) The
Underlying Shares will be deposited with the Custodian in accordance with the provisions of the Deposit Agreement and otherwise comply
with the Deposit Agreement so that ADSs will be issued by the Depositary against receipt of such Underlying Shares and ADSs and/or ADRs
evidencing ADSs delivered to the Agents.
(x) The
Company shall endeavor to qualify the ADSs for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Agents
shall reasonably request.
(y) The
Company agrees not to, and agrees to cause its subsidiaries and affiliates not to, take, directly or indirectly, any action designed to
or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the ADSs.
(z) The
Company agrees to suspend the exercise of any options by option holders that are affiliated purchasers within the meaning of Regulation
M under the stock option program 2019 during the period when Placement ADSs are offered.
(aa) The Company shall pay, and shall indemnify
and hold the Agents harmless against, any Stamp Taxes, income, capital gains, withholding or other taxes or duties (including any penalties,
interest or additions to tax with respect thereon) imposed that is payable in connection with (i) the execution, delivery, consummation
or enforcement of this Agreement or the Deposit Agreement or any other document to be furnished hereunder or consummation of the transactions
contemplated by this Agreement or the Deposit Agreement, (ii) the creation, allotment and issuance of the Underlying Shares, (iii) the
creation, issuance, deposit, sale and delivery of the Placement ADSs by the Company, (iv) the purchase from the Company, and the sales
and deliveries by the Agents of the Placement ADSs to purchasers thereof pursuant to this Agreement, or (v) the resale and delivery of
the Placement ADSs by the Agents in the manner contemplated herein.
(bb) All sums payable by the Company under this
Agreement shall be paid free and clear of and without deductions or withholdings of any present or future taxes or duties, unless the
deduction or withholding is required by law, in which case the Company shall pay such additional amount as will result in the receipt
by the Agents of the full amount that would have been received had no deduction or withholding been made.
(cc) All sums payable to the Agents shall be
considered exclusive of any value added or similar taxes. Where the Company is obliged to pay value added or similar tax on any amount
payable hereunder to the Agents, the Company shall in addition to the sum payable hereunder pay an amount equal to any applicable value
added or similar tax.
Section 5. Payment and Delivery.
(a) Delivery
of the Placement ADSs purchased by the Agents shall be made through the facilities of The Depository Trust Company (“DTC”)
to RBC on behalf of the Agents unless RBC shall otherwise instruct.
(b) Payment
for such number of Placement ADSs sold by the respective Agents on a trading day (each an “ADS Tranche”) shall, subject
to the conditions set out herein, be made by wire transfer in immediately available funds to the Company at the account specified by the
Company on the first business day that is also a Trading Day following the trade date on which such sales are made, unless another date
shall be agreed to in writing by the Company and the Agents (each such day, a “Settlement Date”).
(c) RBC
shall have the right to retain the aggregate gross sales price of any ADS Tranche (the “Purchase Price”) until such
Settlement Date on which the aggregate net proceeds from the sale of the Placement ADS exceed the sum of (i) the Aggregate Issue Price,
translated into USD, provided that RBC shall use reasonable commercial efforts to achieve a favorable exchange rate for such conversion,
which shall be subject to applicable fees typically charged by RBC in similar transactions, and (ii) fees and expenses as set forth in
Section 3(c) hereof (the “Excess ADS Proceeds Amount”). RBC, in satisfaction of its obligations, shall, subject to
the conditions set out herein, transfer the Excess ADS Proceeds Amount to the Company’s bank accounts as notified by the Company
to RBC (each a “Company’s Account”), provided however, that RBC will execute such wire transfer only after the
expected sales proceeds from the sale of Placement ADSs exceed the Aggregate Issue Price.
(d) Solely
for the purpose of calculating the Excess ADS Proceeds Amount in U.S. dollars, the Aggregate Issue Price is converted from Euro into U.S.
dollars by applying the exchange rate, which RBC can reasonably obtain at the time it converts U.S. dollars into a Euro amount equal to
the Aggregate Issue Price.
(e) The
Placement ADSs shall be delivered to RBC with any transfer taxes payable in connection with the transfer of the Placement ADSs to RBC
duly paid by the Company, against payment of the Aggregate Issue Price for the Underlying Shares.
(f) Expenses.
The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including (i)
the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and
each amendment thereto, (ii) the preparation, printing and delivery to the Agents of copies of any preliminary prospectus, any Issuer
Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery
of any of the foregoing by the Agents to investors, (iii) the preparation, issuance and delivery of the certificates for the Placement
ADSs, including any and all Stamp Taxes or governmental duties (including value added tax “VAT”), if any, any stock
or other transfer taxes and other similar duties payable upon the sale, issuance or delivery of the Placement ADSs to the Agents and by
the Agents in the manner contemplated herein, (iv) the fees and disbursements of the Company’s counsel, accountants and other advisors,
(v) the qualification of the Placement ADSs under securities laws in accordance with the provisions of Section 4(g) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the Agents in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the filing fees incident to the review by FINRA of the terms of sales of Placement
ADSs, and, subject to the completion of the distribution of the Placement ADSs, one half of the reasonable fees and disbursements of counsel
for the Agents in connection therewith, (vii) the fees and expenses incurred in connection with the listing of the Placement ADSs on NYSE,
(viii) the reasonable documented out-of-pocket expenses of the Agents, and, subject to the completion of the distribution of the Placement
ADSs, one half of the reasonable fees, disbursements and expenses of counsel for the Agents in connection with this Agreement and the
Registration Statement and ongoing services in connection with the transactions contemplated hereunder, (ix) the fees and expenses of
any transfer agent or registrar for the Placement ADSs, if any, (x) the fees and expenses of the Depositary for the ADSs or registrar
for the Underlying Shares, (xi) all costs and expenses arising in relation to the capital increase including, but not limited to, any
losses, costs and expenses due to any currency and negative interest rate risks arising out of the pre-funding of the Aggregate Issue
Price pursuant to Section 2(a), and (xii) all other costs and expenses incident to the performance of the obligations of the Company hereunder
for which provision is not otherwise made in this Section.
Section 6. Conditions of Agents’ Obligations.
The obligations of the Agents hereunder are subject to the accuracy of the representations and warranties of the Company contained herein
or in certificates of any officer of the Company delivered pursuant to the provisions hereof at the date hereof, the Capital Increase
Registration Date and each Representation Date, to the performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the explicit release of the Subscription Certificate:
(i) There
shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the
Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined
in Section 3(a)(62) of the Exchange Act.
(ii) There
shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business, properties, stockholders’ equity, operations or management of the Company and its subsidiaries, taken as
a whole, whether or not arising in the ordinary course of business, from that set forth or incorporated by reference in the General Disclosure
Package and the Prospectus that, in the Agents’ joint judgment, is material and adverse and that makes it, in the Agents’
joint judgment, after consultation with the Company, impracticable to market the Placement ADSs on the terms and in the manner contemplated
in the General Disclosure Package and the Prospectus.
(b) Effectiveness
of Registration Statement and Filing of Prospectus. The Company shall have filed the Registration Statement with the Commission not
earlier than three years prior to the date hereof and the Registration Statement shall have been declared effective by the Commission.
The Company shall have filed with the Commission the Prospectus on or prior to the date of this Agreement and any subsequent Base Prospectus
or Prospectus Supplement prior to any Applicable Time and related Settlement Date, as applicable, in each case in the manner and within
the time period required by Rule 424(b), and each Issuer Free Writing Prospectus, if any, in the manner and within the time period required
by Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been
issued under the 1933 Act, no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment
thereto pursuant to Rule 401(g)(2) has been received by the Company, no order preventing or suspending the use of any preliminary prospectus
or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted
or are pending or, to the Company’s knowledge, contemplated. The Company shall have complied with any and all requests for additional
information on the part of the Commission to the reasonable satisfaction of the Agents. The Company shall have paid the required Commission
filing fees relating to the Placement ADSs as specified in Section 4(a) hereof.
(c) Opinion
of Counsel for the Agents. On the Capital Increase Registration Date, the Agents shall have received (i) an opinion of Latham &
Watkins LLP, German counsel for the Agents, dated such date and (ii) an opinion and 10b-5 statement of Latham & Watkins (London) LLP,
United States counsel for the Agents, dated such date, with respect to such matters as the Agents may reasonably request. In giving such
opinion or opinions, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the laws of the State of
New York and the federal securities laws of the United States, upon the opinions of counsel satisfactory to the Agents. Such counsel may
also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates
of officers and other representatives of the Company and certificates of public officials.
(d) Opinion
of Counsel to the Company. On the Capital Increase Registration Date, the Agents shall have received (i) an opinion of Noerr Partnerschaftsgesellschaft
mbB, German counsel for the Company, dated such date, and (ii) an opinion and 10b-5 statement of Sullivan & Cromwell LLP, United States
counsel for the Company, dated such date, in each case in form and substance satisfactory to the Agents, and each to such further effect
as the Agents may reasonably request.
(e) Depositary’s
Counsel Legal Opinion. On the Capital Increase Registration Date, the Agents shall have received the favorable written opinion or
opinions of Emmet, Marvin & Martin, LLP counsel for the Depositary, in form and substance satisfactory to the Agents, and to such
further effect as the Agents may reasonably request.
(f) Accountants’
Letter. On the Capital Increase Registration Date, the Agents shall have received a letter from each of Ernst & Young,
société anonyme, and Forvis Mazars, in each case dated such date and in form and substance satisfactory to the Agents,
containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters
with respect to the financial statements and other financial information included in the Registration Statement, the General Disclosure
Package and the Prospectus or any amendment or supplement thereto.
(g) Officers’
Certificate for the Company. On the Capital Increase Registration Date, there shall not have been, since the date of the latest audited
financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus or since the respective
dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, any Material
Adverse Change, and the Agents shall have received a certificate of the Chief Executive Officer or President of the Company and of the
Chief Financial Officer or Chief Accounting Officer of the Company, dated such date, to the effect that (A) there has been no such Material
Adverse Change, (B) the representations and warranties of the Company in this Agreement are true and correct with the same force and effect
as though expressly made on and as of such date, (C) the Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied on or prior to such date and (D) no stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment thereto has been issued under the 1933 Act, no notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) has been received by the Company, no order preventing
or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings
for any of those purposes have been instituted or are pending or, to their knowledge, contemplated.
(h) CFO
Certificate. The Agents shall have received on the Capital Increase Registration Date a certificate of the Chief Financial Officer
of the Company in form and substance satisfactory to the Agents.
(i) Lock-up
Agreements. The lock up agreements, each substantially in the form of Exhibit D hereto, between the Agents and the members of the
Company’s management board (Vorstand) and the chairman of the Company’s supervisory board (Aufsichtsrat), relating
to sales and certain other dispositions of Shares or certain other securities, delivered to the Agents on or before the date hereof, shall
be in full force and effect on the Capital Increase Registration Date and shall not be terminated, rescinded or revoked.
(j) Depositary
Certificate. On or prior to the Capital Increase Registration Date, the Depositary shall have furnished or caused to be furnished
to the Agents a certificate satisfactory to the Agents of one of its authorized officers stating that the Deposit Agreement has been duly
executed and has not been terminated by the Depositary.
(k) On
or prior to the Capital Increase Registration Date, the Agents shall have received copies of the resolution of the management board (Vorstand)
and the supervisory board (Aufsichtsrat) of the Company, authorizing the issuance and the sale of the Placement ADSs and the execution
of this Agreement.
(l) Deposit
Agreement. The Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action
necessary to permit the deposit of Underlying Shares and the issuance of the Placement ADSs in accordance with the Deposit Agreement.
(m) Listing.
The Placement ADSs shall have been approved for listing, subject to official notice of issuance, on the NYSE.
(n) Secretary’s
Certificate. On or prior to the Capital Increase Registration Date, the Agents shall have received a certificate, signed on behalf
of the Company by the Secretary of the Company and attested to by an executive officer of the Company, dated as of such date and in form
and substance satisfactory to the Agents and their counsel, certifying as to (i) articles of association of the Company, as amended, (ii)
the resolutions of the board of directors of the Company or duly authorized committee thereof authorizing the execution, delivery and
performance of this Agreement, the sale of the Placement ADSs and the issuance of the Underlying Shares and (iii) the incumbency of the
officers of the Company duly authorized to execute this Agreement and the other documents contemplated by this Agreement.
(o) Global
Share Certificate. On to the Capital Increase Registration Date, the Company shall have delivered to RBC or a designated nominee of
RBC, in accordance with, and at the time provided for, in Section 2(d) hereof, (A) a duly executed global share certificate evidencing
the Underlying Shares and (B) a certified excerpt from the Commercial Register pertaining to the Company evidencing the capital increase
represented by the Underlying Shares.
(p) FINRA.
FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of
the transactions contemplated hereunder.
(q) DTC.
The Placement ADSs shall be eligible for clearance and settlement through the facilities of DTC.
Section 7. Indemnification.
(a) Indemnification
of the Agents. The Company agrees to indemnify and hold harmless the Agents, their affiliates (as such term is defined in Rule 501(b)
of the 1933 Act Regulations (each, an “Affiliate”)), selling agents, officers and directors and each person, if any,
who controls an Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, in each case including VAT, as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information deemed to be
a part thereof pursuant to Rule 430B, or the omission or alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material
fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus
(or any amendment or supplement thereto) or (B) in any materials or information provided to investors by, or with the approval of, the
Company in connection with the marketing of any offering of Placement ADSs (“Marketing Materials”), including any roadshow
or investor presentations made to investors by the Company (whether in person or electronically), or the omission or alleged omission
in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment
or supplement thereto) or in any Marketing Materials of a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section
7(d) below) any such settlement is effected with the written consent of the Company;
(iii) against
any and all expense whatsoever, as incurred (including reasonable documented fees and disbursements of a single counsel chosen by the
Agents), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any
Governmental Entity, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement
or omission made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant
to Rule 430B, or in the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with information furnished to the Company by the Agents in writing expressly for use therein. This indemnity agreement will
be in addition to any liability which the Agents may otherwise have. The Company acknowledges that (A) the names of the Agents as set
forth in the first sentence of the first paragraph and (B) the statements in the fifteenth paragraph, under the caption “Plan of
Distribution” constitute the only information furnished in writing by or on behalf of the Agents for inclusion in the Registration
Statement, the General Disclosure Package, any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus.
(b) Indemnification
of Company, Directors and Officers. Each Agent, severally and not jointly, agree to indemnify and hold harmless the Company, its directors,
each of its officers, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act against any and all losses, liabilities, claims or damages (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim, as incurred) and expenses described in the
indemnity contained in Section 7(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant
to Rule 430B, or in the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with the information furnished to the Company by such Agents in writing expressly for use therein.
(c) Actions
against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement.
In the case of parties indemnified pursuant to Section 7(a) hereof, counsel to the indemnified parties shall be selected by the Agents,
and, in the case of parties indemnified pursuant to Section 7(b) hereof, counsel to the indemnified parties shall be selected by the Company.
An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the prior written consent of the indemnified party) also be counsel to the indemnified party. In no event
shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from
their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any Governmental Entity, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 7 or Section 8 hereof (whether or not the indemnified parties are actual or potential parties thereto),
unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of any indemnified party.
(d) Settlement
without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(iii) hereof effected without its written consent if (i) such settlement is entered into more than
45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
Section 8. Contribution. If the indemnification
provided for in Section 7 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, on the one hand, and each Agent, on the other hand, from the
applicable offering of Placement ADSs or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company,
on the one hand, and each Agent, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company,
on the one hand, and the Agents, on the other hand, in connection with the applicable offering of Placement ADSs shall be deemed to be
in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company, on the one hand,
bear to the total commissions or underwriting discounts received by each Agent, on the other hand.
The relative fault of the Company, on the one hand,
and of each Agent, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or
by the Agents and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement
or omission.
The Company and the Agents agree that it would
not be just and equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Agents were treated
as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred
to above in this Section 8. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party
and referred to above in this Section 8 shall be deemed to include any reasonable legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any Governmental
Entity, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section
8, no Agent shall be required to contribute any amount in excess of the total commissions or underwriting discounts received by such Agent
in connection with Placement ADSs placed or underwritten by it for sale to the public.
No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 8, each person, if
any, who controls an Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and an Agent’s Affiliates,
selling agents, officers and directors shall have the same rights to contribution as such Agent, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.
Section 9. Survival. All indemnities,
rights of contribution, representations, warranties, covenants and agreements of the Company and the Agents contained in this Agreement
or in certificates of officers of the Company or any subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect regardless of (i) any investigation made by or on behalf of the Agents or their Affiliates, selling agents, officers or directors
or any person controlling such Agent, or the Company or its officers or directors, or any person controlling the Company and (ii) delivery
of and payment for the Placement ADSs or any termination of this Agreement.
Section 10. Termination. RBC as representative
of the Agents may terminate this Agreement by notice given to the Company, if following the execution and delivery of this Agreement,
and prior to each Settlement Date, (i) trading generally shall have been suspended or materially limited on, or by, as the case may be,
any of the New York Stock Exchange, the NASDAQ Global Market or the Frankfurt Stock Exchange, (ii) trading of any securities of the Company
shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities settlement, payment
or clearance services in the United States or the Federal Republic of Germany shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State or German authorities or authorities in the United Kingdom, (v) there
shall have occurred any outbreak or escalation of hostilities, or any change in financial markets, currency exchange rates or controls
or any calamity or crisis that, in RBC’s judgment, acting on behalf of the Agents, is material and adverse and which, singly or
together with any other event specified in this clause (v), makes it, in the judgment of RBC, acting on behalf of the Agents, after
consultation with the Company (to the extent practicable), impracticable or inadvisable to proceed with the offer, sale or delivery of
the Placement ADSs on the terms and in the manner contemplated in the Prospectus or (vi) upon non-occurrence of a condition precedent
referred to in Section 6 above (each of the events set forth in clauses (i) to (vi) of this Section, a “Termination Event”).
In addition, this Agreement shall automatically terminate if no Capital Increase Registration Date has occurred by midnight (24:00 hours
CET) on August 30, 2024, unless the parties hereto mutually agree otherwise in writing.
(a) If
a Termination Event occurs before the Subscription Certificate for the Underlying Shares has been filed with the Commercial Register,
the obligations of the Agents acting through RBC Germany to subscribe for the Underlying Shares for the account of the Agents and the
several obligations of the Agents to purchase the Underlying Shares and the Placement ADSs may be canceled and this Agreement may be terminated
by RBC on behalf of the Agents at its option and in its sole discretion and, in such circumstances, the Company shall return the Subscription
Certificate to RBC Germany and the Bank Certificate to Berenberg Germany and shall instruct Berenberg Germany to release any funds already
credited to the Capital Increase Account for the benefit of RBC Germany acting for the account of the Agents and reimburse the Agents
pursuant to Section 5(f).
(b) If
a Termination Event occurs after the application for the registration of the Capital Increase has been filed with the Commercial Register,
RBC, acting on behalf of the Agents, may at its option and in its sole discretion terminate this Agreement and request from the Company
by written notification to the Company to employ its best efforts to procure a withdrawal of the application for registration of the Capital
Increase from the Commercial Register. If the application is successfully withdrawn, the obligation of RBC Germany to subscribe for the
Underlying Shares for the account of the Agents and the several obligations of the Agents to purchase the Underlying Shares and the Placement
ADSs shall terminate, and the Company shall return the Subscription Certificate to RBC Germany and the Bank Certificate to Berenberg Germany
and shall instruct Berenberg Germany to release any funds already credited to the Capital Increase Account for the benefit of RBC Germany
acting for the account of the Agents, and reimburse the Agents pursuant to Section 5(f).
(c) If
a Termination Event occurs after the Capital Increase Registration Date or on a date on which the application for the registration of
the Capital Increase can no longer be withdrawn, or if despite a request a withdrawal does not occur for other reasons, or if the Agreement
terminates pursuant to Section 11, the following shall apply:
(i) In
such circumstances, the Agents shall be entitled to sell such number of Shares or ADSs, as the case may be, to any other person or persons
as they deem best in their sole discretion provided, however, that such disposition of the Shares or ADSs, as the case may be, will be
made in compliance with applicable requirements under the 1933 Act, the German Stock Corporation Act (Aktiengesetz), the Articles
of Association (Satzung) of the Company taking into account that the Shares were issued under exclusion of the preferential subscription
rights of existing shareholders and subject to certain requirements as set out in the Articles of Association. In addition, to the extent
legally feasible, the Agents shall be entitled to sell these Shares or ADSs by way of a subscription offering to existing holders of Shares
or ADSs. The Agents agree to effect any dispositions in an orderly fashion with a view to placing the Placement ADSs without an undue
influence on the market price of the ADSs already traded and subject to the principles regarding the determination of the placement price.
The Company agrees to, at its own expense, use its best efforts to cooperate with the Agents and support the sale efforts with respect
to the sale of any such Shares or ADSs, as the case may be, held by the Agents following a termination in accordance with this Section
10, including, but not limited to, participating in a reasonable number of investor meetings, entering into customary arrangements (including
indemnification agreements, underwriting agreements or customary purchase agreements), and taking all other actions as may be reasonably
requested, which may include taking customary corporate actions to facilitate the sale of such Shares and/or ADSs, as the case may be,
by the Agents in accordance with applicable German stock corporation law, and assisting the Agents with the registration of such Shares
and/or ADSs, as the case may be, in such amounts and denominations and in the name of any investors following such sale by the Agents,
cooperating with due diligence requests of the Agents and potential investor requests to the extent customary and reasonable, and furnishing
the Agents with a prospectus or customary offering memorandum, as the case may be (and copies thereof as they deem necessary), that (i)
shall not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements
therein not misleading, in the light of the circumstances existing at the time such Prospectus or customary offering memorandum is delivered
to a purchaser of such Shares, as the case may be, and (ii) shall comply with applicable laws at such time such Prospectus or customary
offering memorandum is delivered to a purchaser of these Shares and/or ADSs, as the case may be. In the event of any such sale, the Agents
shall forward to the Company any proceeds received by them from such sale less the amount credited to the Capital Increase Account in
respect of the relevant Shares to the extent not yet deducted pursuant to Section 5(c), and less the underwriting commission. For the
avoidance of doubt, the Agents shall not offer or sell any Placement ADSs while in possession of material non-public information.
(ii) If
the Underlying Shares from the Capital Increase have already been transferred to the Depositary and been registered in the Depositary’s
name, the Company, upon RBC’s request, shall assist RBC in taking all reasonable measures necessary to effect the re-transfer of
such shares to RBC or any other entity designated by RBC, on behalf of the Agents.
(d) Section
5(f) and the provisions set out in Sections 4(h), 7, 8, 15, 16, 17 and 18 of this Agreement shall remain in full force and effect notwithstanding
any termination pursuant to this Section 10.
Section 11. Term. RBC, as representative
of the Agents may, in its sole discretion, terminate this Agreement at any time following the expiry of a period of 45 calendar days following
the Capital Increase Registration Date. Following such termination, the Agents shall be entitled to sell any Placement ADS to any other
person or persons as they deem best in their sole discretion, provided, however, that (i) such disposition of the Placement ADSs will
be made in compliance with applicable requirements under the German Stock Corporation Act (Aktiengesetz), the Articles of Association
(Satzung) of the Company and the 1933 Act as set out under Section 10(c)(i), and (ii) the provisions of Section 10(c) shall apply.
For the avoidance of doubt, the Agents shall not offer or sell any Placement ADSs while in possession of material non-public information.
Section 12. Notices. All notices and other
communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Agents shall be directed to (i) RBC Capital Markets, LLC, 200 Vesey Street, 8th floor, New York,
NY 10281, Attention: Equity Capital Markets, Facsimile: +#-###-###-#####; Email: #########; and (ii) Berenberg Capital Markets LLC, 1251
Avenue of the Americas, 53rd Floor, New York, NY 10020, Attention: Equity Capital Markets, Facsimile: +#-###-###-####; Email:
#########; and notices to the Company shall be directed to ######### and #########, Jumia Technologies AG, Skalitzer Strasse 104,
10997 Berlin, Germany; Email: ######### and #########.
Section 13. No Advisory or Fiduciary Relationship.
The Company acknowledges and agrees that (a) each purchase and sale of Placement ADSs pursuant to this Agreement, including the determination
of the respective initial public offering prices of Placement ADSs, if any, and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company, on the one hand, and the Agents, on the other hand, (b) the Agents have not assumed and will
not assume any advisory or fiduciary responsibility in favor of the Company or any of its subsidiaries or other affiliates with respect
to any offering of Placement ADSs or the process leading thereto (irrespective of whether the Agents have advised or are currently advising
the Company or any of its subsidiaries or other affiliates on other matters) or any other obligation to the Company except the obligations
expressly set forth in this Agreement, (c) the Agents and their affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company, and (d) the Agents have not provided any legal, accounting, financial, regulatory or
tax advice to the Company or any other person or entity with respect to any offering of Placement ADSs and the Company has consulted its
own respective legal, accounting, financial, regulatory and tax advisors to the extent it deemed appropriate.
Section 14. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that any Agent that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Agent of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as
the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that any Agent that is a Covered Entity or a BHC Act Affiliate of such Agent becomes subject to a proceeding under a U.S. Special
Resolution Regime, Default Rights under this Agreement that may be exercised against such Agent are permitted to be exercised to no greater
extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws
of the United States or a state of the United States
For purposes of this Section
14, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance
with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term
is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined
in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in,
and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution
Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the
Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
Section 15. Parties. This Agreement shall
each inure to the benefit of and be binding upon the Agents and the Company and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Agents, their Affiliates and
selling agents, the Company and their respective successors and the controlling persons and officers and directors referred to in Section
7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit
of the Agents, their Affiliates and selling agents, the Company and their respective successors, and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of
Placement ADSs shall be deemed to be a successor by reason merely of such purchase.
Section 16. Trial by Jury. Each of the Company
(on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates), and the Agents hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
Section 17. GOVERNING LAW. THIS AGREEMENT
AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
Section 18. Consent to Jurisdiction; Waiver
of Immunity. Each of the Company and the Agents agrees that any legal suit, action or proceeding arising out of or based upon this
Agreement or the transactions contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts
of the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New
York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and irrevocably
submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any Specified Court
(a “Related Judgment”), as to which such jurisdiction is non-exclusive) of the Specified Courts in any such suit, action
or proceeding. Service of any process, summons, notice or document by mail to a party’s address set forth in Section 12 hereof shall
be effective service of process upon such party for any suit, action or proceeding brought in any Specified Court. Each of the Company
and the Agents irrevocably and unconditionally waives any objection to the laying of venue of any suit, action or proceeding in the Specified
Courts and irrevocably and unconditionally waives and agrees not to plead or claim in any Specified Court that any such suit, action or
proceeding brought in any Specified Court has been brought in an inconvenient forum. The Company irrevocably appoints Puglisi & Associates
as its agent to receive service of process or other legal summons for purposes of any such suit, action or proceeding that may be instituted
in any Specified Court. With respect to any Related Proceeding, each of the Company and the Agents irrevocably waives, to the fullest
extent permitted by applicable law, all immunity (whether on the basis of sovereignty or otherwise) from jurisdiction, service of process,
attachment (both before and after judgment) and execution to which it might otherwise be entitled in the Specified Courts, and, with respect
to any Related Judgment, each of the Company and the Agents waives any such immunity in the Specified Courts or any other court of competent
jurisdiction, and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such Related Proceeding or
Related Judgment, including, without limitation, any immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976,
as amended.
Section 19. TIME. TIME SHALL BE OF THE ESSENCE
OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 20. Counterparts. This Agreement
may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together
constitute one and the same Agreement. Counterparts may be delivered via electronic mail (including in “.pdf” format or any
electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and
Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed
to have been duly and validly delivered and be valid and effective for all purposes.
Section 21. Effect of Headings. The Section
headings herein are for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement between the Agents and the Company in accordance with its terms.
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Very truly yours, |
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Jumia Technologies AG |
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By: |
/s/ Francis Dufay & Antoine Maillet-Mezeray |
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Name: |
Francis Dufay & Antoine Maillet-Mezeray |
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Title: |
CEO & EVP Finance & Operations |
| Accepted as of the date hereof: |
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| RBC CAPITAL MARKETS, LLC |
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| By: |
/s/ John Kolz |
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Name: |
John Kolz |
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Title: |
Managing Director |
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| BERENBERG CAPITAL MARKETS LLC |
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| By: |
/s/ Zachary Brantly |
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Name: |
Zachary Brantly |
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Title: |
Head of U.S. Investment Banking |
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| By: |
/s/ Matt Rosenblatt |
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Name: |
Matt Rosenblatt |
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Title: |
CCO & Ops Principal |
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Execution Version
Exhibit A
FORM OF SUBSCRIPTION CERTIFICATE
Exhibit B
FORM OF BANK CERTIFICATE
Exhibit C
FORM OF GLOBAL SHARE CERTIFICATE
Exhibit D
FORM OF LOCK-UP AGREEMENT
_____________, 2024
RBC Capital Markets, LLC
200 Vesey Street
New York, NY 10281
United States of America
Berenberg Capital Markets LLC
1251 Avenue of the Americas
53rd Floor
New York, NY 10020
Ladies and Gentlemen:
The undersigned understands that RBC Capital
Markets, LLC (“RBC”) and Berenberg Capital Markets LLC (“Berenberg”, and together with RBC, the
“Agents”) propose to enter into a sales agency agreement (the “Sales Agreement”) with Jumia Technologies
AG, a stock corporation (Aktiengesellschaft) incorporated under the laws of the Federal Republic of Germany and registered with
the commercial register (Handelsregister) of the local court (Amtsgericht) in Berlin, Germany, under number HRB 203542
(the “Company”), providing for the issuance and sale to the Agents of [●] ordinary bearer shares with no par
value (auf den Inhaber lautende Stammaktien ohne Nennwert (Stückaktien)) and a notional attributable value (rechnerischer
Nennwert) of €1.00 (the “Stock”) in the form of American Depositary Shares (the “Placement ADSs”),
each representing two shares of Stock.
To induce the Agents to use their efforts in
connection with the sale of the Placement ADSs, the undersigned hereby agrees that, without the prior written consent of RBC (acting on
behalf of the Agents), it will not, prior to the completion of the distribution of the Placement ADSs (as notified to the Company by the
Agents) (the “Restricted Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly
or indirectly, any shares of Stock (including, for the avoidance of doubt, Placement ADSs) beneficially owned (as such term is used in
Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned or any other
securities so owned convertible into or exercisable or exchangeable for Stock, (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of the Stock (including, for the avoidance of
doubt, Placement ADSs), whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Stock or
such other securities, in cash or otherwise, or (3) publicly disclose the intention to do any of the foregoing.
The foregoing sentence shall not apply to (a) transfers
of shares of Stock or any security convertible into or exercisable or exchangeable for Stock as a bona fide gift; (b) if the undersigned
is a corporation, partnership, limited liability company, trust or other business entity, (i) distributions of shares of Stock or any
security convertible into or exercisable or exchangeable for Stock to limited partners, stockholders or similar related parties of the
undersigned or (ii) transfers of shares of Stock or any security convertible into or exercisable or exchangeable for Stock to any entity
that, directly or indirectly, is controlled by, controls or is under common control with, the undersigned, provided that in the
case of any transfer or distribution pursuant to clause (b) or (c), each donee, distributee or transferee shall sign and deliver
a lock-up letter substantially in the form of this lock-up agreement and that no filing under Section 16(a) of the Exchange Act shall
be required or shall be voluntarily made in connection with such transfer; (c) transfers of shares of Stock or any security convertible
into or exchangeable for Stock pursuant to a bona fide third-party tender offer made to all holders of the Company’s share capital,
merger, consolidation or other similar transaction involving a Change of Control (as defined below) of the Company that has been recommended
by the Company’s management board, provided that in the event that such tender offer, merger, consolidation or other such
transaction is not completed, the undersigned’s shares of Stock shall remain subject to the provisions of this lock-up agreement;
(d) sales of shares of Stock under an existing trading plan that complies with Rule 10b5-1 under the Exchange Act, or (e) the establishment
of a trading plan that complies with Rule 10b5-1 under the Exchange Act for the transfer of shares of Stock, provided that (i)
no transfer of shares of Stock occurs during the Restricted Period and (ii) to the extent that a public announcement or filing under the
Exchange Act shall be required or voluntarily made during the Restricted Period regarding the establishment of such trading plan, such
announcement or filing shall include a statement to the effect that no transfer of shares of Stock may be made under such plan during
the Restricted Period.
“Change of Control” as used herein
shall mean the consummation of any bona fide third party tender offer, merger, consolidation or other similar transaction the result of
which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of persons becomes the beneficial
owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act), directly or indirectly, of more than 50% of the total voting power of
the Company.
The undersigned understands that the Company and
the Agents are relying upon this lock-up agreement in proceeding toward consummation of the offering. The undersigned further understands
that this lock-up agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors
and assigns.
Whether or not the offering actually occurs depends
on a number of factors, including market conditions. Any offering will only be made pursuant to a Sales Agreement, the terms of which
are subject to negotiation between the Company and the Agents.
The undersigned acknowledges and agrees that the
Agents have not provided any recommendation or investment advice nor have the Agents solicited any action from the undersigned with respect
to the offering of the Placement ADSs and the undersigned has consulted its own legal, accounting, financial, regulatory and tax advisors
to the extent deemed appropriate. The undersigned further acknowledges and agrees that, although the Agents may be required or choose
to provide certain Regulation Best Interest and Form CRS disclosures to you in connection with the offering, the Agents are not making
a recommendation to you to participate in the offering, enter into this lock-up agreement, or sell any Placement ADSs at the price determined
in the offering, and nothing set forth in such disclosures is intended to suggest that the Agents are making such a recommendation.
This lock-up agreement shall automatically terminate
upon completion of the distribution of the Placement ADSs.
This lock-up agreement and any claim, controversy
or dispute arising under or related to this lock-up agreement shall be governed by and construed in accordance with the laws of the State
of New York.
[Signature page follows.]
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Very truly yours, |
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(Name) |
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(Address) |
[Signature Page to Lock-Up
Letter]
Exhibit 3.1
| Deutsche Fassung |
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Convenience Translation |
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Satzung
der
Jumia Technologies AG |
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Articles of
Association
of
Jumia Technologies AG |
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I.
ALLGEMEINE BESTIMMUNGEN |
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I.
General Provisions |
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§ 1
Firma und Sitz |
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Section 1
Company Name and Registered Seat |
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| (1) |
Die Firma der Gesellschaft lautet Jumia
Technologies AG. |
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(1) |
The name of the Company is Jumia Technologies AG. |
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| (2) |
Die Gesellschaft hat ihren Sitz in Berlin. |
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(2) |
The Company has its registered seat in Berlin. |
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§ 2
Gegenstand des Unternehmens |
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Section 2
Company Purpose |
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| (1) |
Gegenstand des Unternehmens ist die direkte oder indirekte Verwaltung eigener Vermögenswerte, insbesondere die Gründung neuer Unternehmen oder der Erwerb existierender Unternehmen, die Entwicklung und Umsetzung neuer Geschäftskonzepte, der Erwerb, die Verwaltung und die Verfügung über Anteile an anderen Unternehmen und juristischen Personen in Deutschland oder im Ausland sowie die Erbringung von Dienst- und Beratungsleistungen, insbesondere mit Fokussierung auf so unterschiedliche Bereiche wie Internet, Online-Dienste, E-Commerce, Telekommunikation, Medien, Neue Medien, Technologien, Software, IT-Dienstleistungen, Marketing, Vertrieb, Personalbeschaffung, Finanzierung, Programmierung, Projektmanagement sowie Start-Up- und Wachstumsunternehmen. |
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(1) |
The Company’s purpose is the direct or indirect management of its own assets, in particular the incorporation of new companies or the acquisition of existing companies, the development and implementation of new business concepts, the acquisition, management and disposition of shares in other companies and legal entities in Germany or abroad as well as the provision of consulting and other services, in particular with a focus on areas as diverse as Internet, online services, e-commerce, telecommunications, media, new media, technologies, software, IT services, marketing, sales, recruitment, financing, programming, project management and start-up and growth companies. |
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| (2) |
Die Gesellschaft ist zu allen Handlungen und Maßnahmen berechtigt und kann alle Geschäfte betreiben, die mit dem Gegenstand des Unternehmens zusammenhängen oder ihm unmittelbar oder mittelbar zu dienen geeignet sind. Sie kann auch andere Unternehmen im In- und Ausland gründen, erwerben und sich an ihnen beteiligen sowie solche Unternehmen leiten oder sich auf die Verwaltung der Beteiligung beschränken. Sie kann ihren Betrieb, auch soweit es um die von ihr gehaltenen Beteiligungen geht, ganz oder teilweise durch verbundene Unternehmen führen lassen oder auf solche übertragen oder auslagern und sich auf die Tätigkeit als geschäftsleitende Holding beschränken. Die Gesellschaft darf auch Zweigniederlassungen und Betriebsstätten im In- und Ausland errichten. Sie kann ihre Tätigkeit auf einen Teil der in Absatz 1 bezeichneten Tätigkeitsfelder beschränken. |
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(2) |
The Company is entitled to perform all acts and take all steps and conduct all transactions relating to its purpose or which are appropriate to directly or indirectly effect the accomplishment of the Company’s purpose. The Company may also establish or acquire enterprises in Germany or abroad and participate in and manage such enterprises or confine itself to the management of its participation. The Company can completely or partially delegate management of its operations, including its participation in other companies, to affiliated companies or transfer or outsource its operations to such affiliated companies as well as confine itself to operation as a management holding company. The Company may also establish branch offices and permanent establishments in Germany and abroad. The Company may limit its activity to any part of the areas designated in paragraph 1. |
Seite / Page 1/21
Dok-ID 385693
Akte 24-00775
| Deutsche Fassung |
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Convenience Translation |
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§ 3
Bekanntmachungen und
Informationsübermittlung |
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Section 3
Announcements and
Communicating Information |
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| (1) |
Die Bekanntmachungen der Gesellschaft erfolgen im Bundesanzeiger. Sofern gesetzlich zwingend eine andere Bekanntmachungsform erforderlich ist, tritt an die Stelle des Bundesanzeigers diese Bekanntmachungsform. |
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(1) |
Company notices shall be published in the Federal Gazette. If another form of notice is required by mandatory provisions of law, such form shall replace the notice in the Federal Gazette. |
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Informationen an die Aktionäre der Gesellschaft können, soweit gesetzlich zulässig, auch im Wege der Datenfernübertragung übermittelt werden. Die Übermittlung von Mitteilungen nach § 125 Abs. 1 i.V.m. § 128 Abs. 1 AktG sowie nach § 125 Abs. 2 AktG ist auf den Weg elektronischer Kommunikation beschränkt. Der Vorstand ist - ohne dass hierauf ein Anspruch besteht - berechtigt, diese Mitteilungen auch auf anderem Weg zu versenden. |
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(2) |
Notices to the shareholders of the Company may, to the extent permitted by law, also be communicated by data transmission. Notices pursuant to Section 125 para. 1 in conjunction with 128 para. 1 of the German Stock Corporation Act (AktG) as well as pursuant to Section 125 para. 2 of the AktG must be delivered by electronic communication. The Management Board is entitled, but not obliged, to deliver such notices also by other means. |
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II.
Grundkapital UND AKTIEN |
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II.
Share Capital and Shares |
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§ 4
Grundkapital |
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Section 4
Share Capital |
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| (1) |
Das Grundkapital der Gesellschaft beträgt EUR 244.925.650,00 (in Worten: Euro zweihundertvierundvierzig Millionen neunhundertfünfundzwanzigtausend sechshundertfünfzig). Es ist eingeteilt in 244.925.650 Stückaktien (Aktien ohne Nennbetrag). |
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(1) |
The share capital of the Company amounts to EUR 244,925,650.00 (in words: Euro two hundred and forty-four million nine hundred and twenty-five thousand six hundred and fifty). It is divided into 244,925,650 no-par value shares (shares without a nominal value). |
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Das Grundkapital wurde in Höhe von EUR 139.736,00 (in Worten: Euro einhundertneununddreißigtausend siebenhundertsechsunddreißig) durch Formwechsel gemäß §§ 190 ff. UmwG der im Handelsregister des Amtsgerichts Charlottenburg unter HRB 142937 B eingetragenen Africa Internet Holding GmbH mit dem Sitz in Berlin erbracht. |
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The share capital has been provided in the amount of EUR 139,736.00 (spelled out: Euro one hundred thirty-nine thousand seven hundred thirty-six) by way of transformation pursuant to Sections 190 et seq. of the German Transformation Act (UmwG) of Africa Internet Holding GmbH with registered seat in Berlin, registered in the commercial register of the local court of Charlottenburg under registration number HRB 142937 B. |
| Deutsche Fassung |
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Convenience Translation |
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| (2) |
Der Vorstand ist ermächtigt, das Grundkapital der Gesellschaft in der Zeit bis einschließlich 26. Juni 2029 mit Zustimmung des Aufsichtsrats um insgesamt bis zu EUR 58.490.399,00 (in Worten: Euro achtundfünfzig Millionen vierhundertneunzigtausenddreihundertneunundneunzig) durch Ausgabe von bis zu 58.490.399 auf den Inhaber lautenden Stückaktien gegen Bar- und/oder Sacheinlagen, einschließlich Forderungen gegen die Gesellschaft, einmalig oder mehrmals zu erhöhen („Genehmigtes Kapital 2024/I“). |
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(2) |
The Management Board is authorized until June 26, 2029 (inclusive) to increase, once or repeatedly, and each time with the consent of the Supervisory Board, the share capital of the Company by a total amount of up to EUR 58,490,399.00 (in words: Euro fifty-eight million four hundred and ninety thou-sand three hundred and ninety-nine) through the issuance of up to 58,490,399 new no-par value bearer shares against contributions in cash and/or in kind, including claims against the Com-pany (“Authorized Capital 2024/I“). |
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Den Aktionären ist grundsätzlich ein Bezugsrecht einzuräumen. Die Aktien können dabei nach § 186 Abs. 5 AktG auch von einem oder mehreren Kreditinstitut(en), Wertpapierinstitut(en) oder gemäß § 53 Abs. 1 Satz 1 oder § 53b Abs. 1 Satz 1 oder Abs. 7 des Gesetzes über das Kreditwesen tätigen Unternehmen mit der Verpflichtung übernommen werden, sie den Aktionären der Gesellschaft zum Bezug anzubieten (mittelbares Bezugsrecht). |
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In principle, the shareholders are to be granted subscription rights. The shares may also be subscribed for by one or more credit institution(s), securities institution(s) or one or more enterprise(s) operating pursuant to sections 53(1) sentence 1, 53b(1) sentence 1 or 53b(7) of the German Banking Act (Gesetz über das Kreditwesen) with the obligation to offer the shares to the shareholders of the Company pursuant to section 186(5) of the German Stock Corporation Act (indirect subscription right). |
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Das Bezugsrecht der Aktionäre ist für eine oder mehrere Kapitalerhöhungen im Rahmen des Genehmigten Kapitals 2024/I ausgeschlossen, wenn |
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The shareholders’ subscription
rights are excluded for one or more capital increases in the context of the Authorized Capital 2024/I, |
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die Ausnutzung des Genehmigten Kapitals 2024/I erfolgt, um bis zu maximal 5.068.510 neue Aktien der Gesellschaft
nach Wahl der Gesellschaft zur Bedienung von Zahlungsansprüchen aus erdienten Virtual Restricted Stock Units, die unter dem Virtual
Restricted Stock Unit Program 2021 der Gesellschaft („VRSUP 2021“) an Mitglieder des Vorstands und Arbeit-nehmer der
Gesellschaft sowie an Mitglieder der Geschäftsführungen und Arbeitnehmer von mit der Gesellschaft verbundenen Unternehmen im
Sinne des § 15 AktG bzw. deren Investmentvehikel nach näherer Maßgabe des VRSUP 2021 gewährt wurden, jeweils gegen
Einlage dieser Zah-lungsansprüche aus den Virtual Restricted Stock Units auszugeben; und/oder; |
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if the utilization of the Authorized Capital 2024/I occurs in order to issue up to a maximum of 5,068,510
new shares of the Company to settle, at the discretion of the Company, claims from vested Virtual Restriced Stock Units granted under
the Virtual Restricted Stock Unit Program 2021 of the Company (“VRSUP 2021”) to members of the Management Board of
the Company and employees of the Company, as well as members of the management and employees of companies affiliated with the Company
within the meaning of section 15 of the German Stock Corporation Act or their investment vehicles, subject to the details of the VRSUP
2021, in each case against contribution of the claims for payments originated under the Virtual Restricted Stock Units; and/or |
| Deutsche Fassung |
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Convenience Translation |
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die Ausnutzung des Genehmigten Kapitals 2024/I erfolgt, um bis zu maximal 6.422.600 neue Aktien der Gesellschaft
nach Wahl der Gesellschaft zur Bedienung von Zahlungsansprüchen aus erdienten Virtual Restricted Stock Units, die unter dem Virtual
Restricted Stock Unit Program 2023 der Gesellschaft („VRSUP 2023“) an Mitglieder des Vorstands und Arbeit-nehmer der
Gesellschaft sowie an Mitglieder der Geschäftsführungen und Arbeitnehmer von mit der Gesellschaft verbundenen Unternehmen im
Sinne des § 15 AktG bzw. deren Investmentvehikel nach näherer Maßgabe des VRSUP 2023 gewährt wurden, jeweils gegen
Einlage dieser Zah-lungsansprüche aus den Virtual Restricted Stock Units auszugeben. |
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if the utilization of the Authorized Capital 2024/I occurs in order to issue up to a maximum of 6,422,600
new shares of the Company to settle, at the discretion of the Company, claims from vested Virtual Restricted Stock Units granted under
the Virtual Restricted Stock Unit Program 2023 of the Company (“VRSUP 2023”) to members of the Management Board
of the Company and employees of the Company, as well as members of the management and employees of companies affiliated with the Company
within the meaning of section 15 of the German Stock Corporation Act or their investment vehicles, subject to the details of the
VRSUP 2023, in each case against contribution of the claims for payments originated under the Virtual Restricted Stock Units. |
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In diesen Fällen darf der auf die ausgegebenen neuen Aktien entfallende anteilige Betrag des Grundkapitals insgesamt 10 % des Grundkapitals der Gesellschaft, das im Zeitpunkt der Beschlussfassung über das Genehmigte Kapital 2024/I vorhanden ist oder, falls dieser Betrag niedriger ist, das im Zeitpunkt der Ausübung des Genehmigten Kapitals 2024/I vorhanden ist, nicht überschreiten. Auf diese 10 %-Grenze ist der anteilige Betrag des Grundkapitals anzurechnen, der auf Aktien entfällt, die seit der Beschlussfassung über das Genehmigte Kapital 2024/I aus genehmigtem Kapital, bedingtem Kapital oder aus eigenen Aktien an Mitglieder des Vorstands und Arbeitnehmer der Gesellschaft sowie an Mitglieder der Geschäftsführungen und Arbeitnehmer von mit der Gesellschaft verbundenen Unternehmen im Sinne des § 15 AktG bzw. deren Investmentvehikel zur Bedienung von Ansprüchen aus Beteiligungsprogrammen ausgegeben oder übertragen wurden. |
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In these cases, the pro rata amount of the share capital attributable to the new shares issued may not exceed 10% of the share capital of the Company existing at the time of the adoption of the resolution on the Authorized Capital 2024/I or, if this amount is lower, existing at the time of the exercise of the Authorized Capital 2024/I. Towards this 10%-limit shall count the pro-rata amount of the share capital attributable to any shares that were issued or transferred from authorized capital, conditional capital or from treasury shares to members of the Management Board of the Company and employees of the Company, as well as members of the management and employees of companies affiliated with the Company within the meaning of section 15 of the German Stock Corporation Act or their investment vehicles to settle claims under participation programs since the resolution on the Authorized Capital 2024/I was adopted. |
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Ferner ist der Vorstand ermächtigt, das Bezugsrecht der Aktionäre mit Zustimmung des Aufsichtsrats für eine oder mehrere Kapitalerhöhungen im Rahmen des Genehmigten Kapitals 2024/I auszuschließen, |
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Further, the Management Board is authorized to exclude the shareholders’ subscription rights with the consent of the Supervisory Board for one or more capital increases in the context of the Authorized Capital 2024/I,
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um Spitzenbeträge vom Bezugsrecht auszunehmen; |
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in order to exclude fractional amounts from the subscription right; |
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soweit es erforderlich ist, um Inhabern bzw. Gläubigern von Wandelschuldverschreibungen, Optionsschuldverschreibungen,
Genussrechten und/oder Gewinnschuldverschreibungen (bzw. Kombinationen dieser Instrumente) (nachstehend gemeinsam „Schuldverschreibungen“),
die mit Wandlungs- oder Optionsrechten bzw. Wandlungs- oder Optionspflichten ausgestattet sind und die von der Gesellschaft oder einer
unmittelbaren oder mittelbaren Beteiligungsgesellschaft ausgegeben wurden oder noch werden, ein Bezugsrecht auf neue, auf den Inhaber
lautende Stückaktien der Ge-sellschaft in dem Umfang zu gewähren, wie es ihnen nach Ausübung der Options- oder Wandlungsrechte
bzw. nach Erfüllung von Wandlungs- oder Optionspflichten als Aktionär zustünde oder soweit die Gesellschaft ein Wahlrecht
bezüglich solcher Schuldverschreibungen ausübt, ganz oder teilweise Aktien der Gesellschaft anstelle der Zahlung des fälligen
Geldbetrags zu gewähren; |
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to the extent necessary to grant holders or creditors of convertible bonds, options, profit rights and/or
profit bonds (or combinations of these instruments) (hereinafter together “Bonds”) with conversion or option rights,
or conversion or option obligations, and which were or will be issued by the Company or a direct or indirect subsidiary, subscription
rights to new no-par value bearer shares of the Company in the amount to which they would be entitled as shareholders after the exercise
of the option or conversion rights, or after fulfilment of the conversion or option obligations or to the extent the Company exercises
with regard to such Bonds its right to grant, totally or in part, shares of the Company in lieu of payment of the amount due; |
| Deutsche Fassung |
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Convenience Translation |
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zur
Ausgabe von Aktien gegen Bareinlagen, wenn der Ausgabepreis der neuen Aktien den Börsenpreis der bereits börsennotierten Aktien
der Gesell-schaft nicht wesentlich im Sinne der §§ 203 Abs. 1 und Abs. 2, 186 Abs. 3 Satz 4 AktG unterschreitet und der auf
die unter Ausschluss des Bezugsrechts gemäß § 186 Abs. 3 Satz 4 AktG ausgegebenen neuen Aktien entfallende anteilige
Betrag des Grundkapitals insgesamt 20 % des Grundkapitals der Gesellschaft nicht überschreitet, und zwar weder zum Zeitpunkt des
Wirksamwerdens noch – wenn dieser Betrag geringer ist – im Zeitpunkt der Ausübung des Genehmigten Kapitals 2024/I. Auf
diese Begrenzung von 20 % des Grundkapitals ist der anteilige Betrag des Grundkapitals anzurechnen, der auf Aktien entfällt, (i)
die während der Laufzeit des Genehmigten Kapitals 2024/I aufgrund einer Ermächtigung zur Veräuße-rung eigener Aktien
gemäß § 71 Abs. 1 Nr. 8 Satz 5 Halbsatz 2 AktG in Verbindung mit § 186 Abs. 3 Satz 4 AktG unter Ausschluss des Bezugsrechts
der Aktionäre veräußert werden; (ii) die zur Bedienung von Schuldverschreibungen mit Wandlungs- oder Optionsrechten bzw.
Wandlungs- oder Optionspflichten ausgegeben werden oder auszugeben sind, sofern diese Schuldverschreibungen in entsprechender Anwendung
des § 186 Abs. 3 Satz 4 AktG während der Laufzeit des Genehmigten Kapitals 2024/I unter Ausschluss des Bezugsrechts der Aktionäre
ausgegeben werden; (iii) die während der Laufzeit des Genehmigten Kapitals 2024/I aus anderem genehmigten Kapital unter Ausschluss
des Bezugsrechts der Aktionäre gemäß § 203 Abs. 2 Satz 1 in Verbindung mit § 186 Abs. 3 Satz 4 AktG oder auf
der Grundlage sonstiger Kapitalmaßnahmen unter Ausschluss des Bezugsrechts der Aktionäre in entsprechender Anwendung von §
186 Abs. 3 Satz 4 AktG ausgegeben werden; |
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to
issue shares for cash contributions, provided that the issue price of the new shares is not significantly lower than the stock exchange
price of the shares of the Company already listed on the stock exchange in the meaning of sections 203(1) and (2), 186(3) sentence 4
of the German Stock Corporation Act and that the proportional amount of the share capital attributable to the new shares issued under
the exclusion of subscription rights in accordance with section 186(3) sentence 4 of the German Stock Corporation Act does not exceed
a total of 20% of the share capital of the Company, whether at the time the Authorized Capital 2024/I comes into effect or – in
case such amount is lower – is exercised. Towards the above threshold of 20% of the share capital shall also count the pro-rata
amount of the share capital attributable to any shares, (i) that are sold during the term of the Au-thorized Capital 2024/I on the basis
of an authorization to sell treasury shares pursuant to section 71(1) no. 8 sentence 5 second half sentence in conjunction with section
186(3) sentence 4 of the German Stock Corporation Act subject to the exclusion of shareholders’ subscription rights; (ii) that
are issued to satisfy Bonds with conversion or option rights, or conversion or option obligations, provided that such Bonds were issued
in analogous application of section 186(3) sentence 4 of the German Stock Corporation Act during the term of the Authorized Capital 2024/I
subject to the exclusion of the shareholders’ subscription rights; or (iii) that are issued during the term of the Authorized Capital
2024/I on the basis of other authorized capital, provided that such shares are issued subject to the exclusion of the shareholders’
subscription rights pursuant to section 203(2) sentence 1 in conjunction with section 186(3) sentence 4 of the German Stock Corporation
Act or on the basis of other capital measures subject to the exclusion of the shareholders’ subscription rights in analogous application
of section 186(3) sentence 4 of the German Stock Corporation Act; |
| Deutsche Fassung |
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Convenience Translation |
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zur Ausgabe von Aktien gegen Sacheinlagen insbesondere – aber ohne Beschränkung hierauf –
im Rahmen von Unternehmenszusammenschlüssen oder zum Zwecke des (auch mittelbaren) Erwerbs von Unternehmen, Be-trieben, Unternehmensteilen,
Beteiligungen an Unternehmen oder von sonstigen Vermögensgegenständen, einschließlich Forderungen gegen die Gesellschaft
oder ihre Konzerngesellschaften, oder zur Bedienung von Schuldverschreibungen, die gegen Sacheinlagen ausgegeben werden; |
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to
issue shares for contributions in kind, in particular – but not limited thereto – in the context of mergers or for the purpose
of (including in-direct) acquisitions of companies, businesses, parts of companies, in-terests in companies or other assets, including
claims against the Company or any of its group companies, or to satisfy Bonds issued for contributions in kind or; |
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zur Durchführung einer Aktiendividende, in deren Rahmen Aktien der Gesellschaft (auch teilweise und/oder
wahlweise) gegen Einlage von Dividendenansprüchen der Aktionäre ausgegeben werden (Aktiendividende). |
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in order to distribute a dividend in kind, in the context of which
shares of the Company (also in part or subject to election) may be issued against contribution of dividend claims (scrip dividend). |
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Der Vorstand ist ermächtigt, mit Zustimmung des Aufsichtsrats den weiteren Inhalt der Aktienrechte und die Bedingungen der Aktienausgabe festzulegen; dies umfasst auch die Festlegung der Gewinnanteilsberechtigung der neuen Aktien, welche abweichend von § 60 Abs. 2 AktG auch für ein bereits abgelaufenes Geschäftsjahr festgelegt werden kann. |
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The Management Board is authorized, with the consent of the Supervisory Board, to determine any additional content of the rights attached to the shares and the conditions of the share issue; this includes the determination of the profit participation of the new shares, which may, in deviation from section 60(2) of the German Stock Corporation Act, also participate in the profit of completed fiscal years. |
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Der Aufsichtsrat ist ermächtigt, nach jeder teilweisen oder der vollständigen Ausnutzung des Genehmigten Kapitals 2024/I oder nach Ablauf der Frist für die Ausnutzung des Genehmigten Kapitals 2024/I die Fassung der Satzung entsprechend anzupassen. |
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The Supervisory Board is authorized to adjust the wording of the Articles of Association accordingly following any partial or the complete utilization of the Authorized Capital 2024/I or upon expiry of the period for the utilization of the Authorized Capital 2024/I. |
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| (3) |
Das Grundkapital der Gesellschaft ist um bis zu EUR 89.799.708,00 (in Worten: Euro neunundachtzig Millionen siebenhundertneunundneunzigtausend siebenhundertacht) durch Ausgabe von bis zu 89.799.708 auf den Inhaber lautenden Stückaktien bedingt erhöht („Bedingtes Kapital 2021/II“). |
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(3) |
The share capital of the Company is conditionally increased by up to EUR 89,799,708.00 (spelled out: Euro eighty-nine million seven hundred ninety-nine thousand seven hundred eight) by issuing up to 89,799,708 no-par value bearer shares (“Conditional Capital 2021/II”). |
| Deutsche Fassung |
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Convenience Translation |
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Das Bedingte Kapital 2021/II dient der Gewährung von Aktien bei der Ausübung von Wandlungs- oder Optionsrechten bzw. bei der Erfüllung von Wandlungs- oder Optionspflichten an die Inhaber bzw. Gläubiger von Wandelschuldverschreibungen, Optionsschuldverschreibungen, Genussrechten und/oder Gewinnschuldverschreibungen (bzw. Kombinationen dieser Instrumente) (nachstehend gemeinsam „Schuldverschreibungen“), die aufgrund des Ermächtigungsbeschlusses der Hauptversammlung vom 9. Juni 2021 ausgegeben worden sind. |
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The purpose of Conditional Capital 2021/II is to grant shares to holders or creditors of convertible bonds, options, profit rights and/or profit bonds (or combinations of these instruments) (together “Bonds”) issued on the basis of the authorization granted by the General Meeting of 9 June 2021 upon the exercise of conversion or option rights or the fulfilment of conversion or option obligations. |
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Die Ausgabe der neuen Aktien erfolgt zu dem nach Maßgabe des Ermächtigungsbeschlusses der Hauptversammlung vom 9. Juni 2021 jeweils festzulegenden Wandlungs- oder Optionspreis. Die bedingte Kapitalerhöhung wird nur insoweit durchgeführt, wie die Inhaber bzw. Gläubiger von Schuldverschreibungen, die von der Gesellschaft oder einer von der Gesellschaft abhängigen oder in ihrem unmittelbaren oder mittelbaren Mehrheitsbesitz stehenden Gesellschaft aufgrund des Ermächtigungsbeschlusses der Hauptversammlung vom 9. Juni 2021 bis einschließlich 8. Juni 2026 ausgegeben bzw. garantiert werden, von ihren Wandlungs- oder Optionsrechten Gebrauch machen bzw. Wandlungs- oder Optionspflichten aus solchen Schuldverschreibungen erfüllen oder soweit die Gesellschaft anstelle der Zahlung des fälligen Geldbetrags Aktien der Gesellschaft gewährt und soweit die Wandlungs- oder Optionsrechte bzw. Wandlungs- oder Optionspflichten nicht durch eigene Aktien, durch Aktien aus genehmigtem Kapital oder durch andere Leistungen bedient werden. |
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The new shares are issued based on the conversion or option price to be determined in accordance with the authorization granted by the General Meeting of 9 June 2021. The conditional capital increase will only be implemented to the extent that the holders or creditors of Bonds, which are issued or guaranteed by the Company, dependent companies or by companies in which the Company owns a majority interest either directly or indirectly by including 8 June 2026 based on the authorization granted by the General Meeting of 9 June 2021, exercise any conversion or option right or fulfill any conversion or option obligation under Bonds, or to the extent the Company grants shares in the Company instead of paying the amount due as well as to the extent the conversion or option rights or the conversion or option obligations are not serviced by treasury shares but rather by shares from authorized capital or other consideration. |
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Die neuen Aktien nehmen von dem Beginn des Geschäftsjahrs an, in dem sie entstehen, und für alle nachfolgenden Geschäftsjahre am Gewinn teil. |
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The new shares have the right to participate in any profits from the beginning of the financial year in which they are created and for all subsequent financial years. |
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Der Vorstand ist ermächtigt, die weiteren Einzelheiten der Durchführung der bedingten Kapitalerhöhung festzusetzen. |
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The Management Board is authorized to determine the further details of the implementation of the conditional capital increase. |
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Der Aufsichtsrat ist ermächtigt, die Fassung der Satzung entsprechend der jeweiligen Inanspruchnahme des Bedingten Kapitals 2021/II und nach Ablauf sämtlicher Options- und Wandlungsfristen entsprechend anzupassen. |
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The Supervisory Board is authorized to amend the Articles of Association accordingly after any utilization of the Conditional Capital 2021/II and upon expiration of all option or conversion periods. |
| Deutsche Fassung |
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Convenience Translation |
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§ 5
Aktien |
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Section 5
Shares |
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Die Aktien lauten auf den Inhaber. |
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The shares are bearer shares. |
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Ein Anspruch der Aktionäre auf Verbriefung ihrer Anteile ist ausgeschlossen, soweit dies gesetzlich zulässig und nicht eine Verbriefung nach den Regeln einer Börse erforderlich ist, an der die Aktie zum Handel zugelassen ist. Die Gesellschaft ist berechtigt, Aktienurkunden auszustellen, die einzelne Aktien (Einzelaktien) oder mehrere Aktien (Sammelaktien) verkörpern. Ein Anspruch der Aktionäre auf Ausgabe von Gewinnanteil- und Erneuerungsscheinen ist ausgeschlossen. |
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(2) |
As far as legally permissible and not required by the rules and procedures of a stock exchange on which the shares are admitted for trading, the right of shareholders to receive share certificates shall be excluded. The Company is entitled to issue share certificates representing individual shares (individual share certificates) or several shares (global share certificates). The shareholders shall have no claim to the issue of dividend or renewal coupons. |
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| (3) |
Die Form und den Inhalt von Aktienurkunden, etwaigen Gewinnanteils- und Erneuerungsscheinen setzt der Vorstand fest. Das gleiche gilt für Schuldverschreibungen und Zinsscheine. |
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Form and content of share certificates as well as dividend and renewal coupons, if any, shall be determined by the Management Board. The same applies with regard to bonds and interest coupons. |
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III.
VORSTAND |
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III.
MANAGEMENT BOARD |
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§ 6
Zusammensetzung und Geschäftsordnung |
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Section 6
Composition and Rules of Procedure |
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Der Vorstand besteht aus einem oder mehreren Mitgliedern. Der Aufsichtsrat bestimmt die Zahl der Mitglieder des Vorstands. |
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The Management Board consists of one or several members. The number of members of the Management Board shall be determined by the Supervisory Board. |
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Der Aufsichtsrat kann einen Vorsitzenden oder mehrere Vorsitzende des Vorstands sowie einen stellvertretenden Vorsitzenden ernennen. |
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(2) |
The Supervisory Board may appoint a Chairperson or several Chairpersons as well as a Deputy Chairperson of the Management Board. |
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Die Bestellung von Vorstandsmitgliedern, der Abschluss der Anstellungsverträge und der Widerruf der Bestellung sowie die Änderung und Beendigung der Anstellungsverträge erfolgen durch den Aufsichtsrat. Der Aufsichtsrat kann für den Vorstand eine Geschäftsordnung erlassen. |
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The Supervisory Board is responsible for the appointment of members of the Management Board, the conclusion of their employment contracts and the revocation of appointments as well as for any amendment to or termination of Management Board employment contracts. The Supervisory Board may adopt Rules of Procedure for the Management Board. |
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Convenience Translation |
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§ 7
Geschäftsführung und Vertretung der Gesellschaft |
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Section 7
Management and Representation of the Company |
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Der Vorstand leitet die Gesellschaft in eigener Verantwortung. Er hat die Geschäfte der Gesellschaft nach Maßgabe des Gesetzes, der Satzung und der Geschäftsordnung für den Vorstand zu führen. Unbeschadet der Gesamtverantwortung des Vorstands leitet jedes Vorstandsmitglied den ihm durch die Geschäftsordnung zugewiesenen Geschäftsbereich selbstständig. |
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The Management Board shall have sole responsibility for the management of the Company. The Management Board shall manage the Company’s business in accordance with the law, the Articles of Association and the Rules of Procedure for the Management Board. Notwithstanding the collective responsibility of the Management Board, the various board members are individually responsible for the management of their respective business divisions as outlined in the Management Board Rules of Procedure. |
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| (2) |
Besteht der Vorstand aus mehreren Personen, so wird die Gesellschaft durch zwei Vorstandsmitglieder oder durch ein Vorstandsmitglied gemeinsam mit einem Prokuristen im Sinne der §§ 48 ff. HGB gesetzlich vertreten. Ist nur ein Vorstandsmitglied bestellt oder hat der Aufsichtsrat ein Vorstandsmitglied zur Alleinvertretung ermächtigt, so vertritt es die Gesellschaft allein. |
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(2) |
If the Management Board consists of several members, the Company shall be legally represented by two members of the Management Board or by one member of the Management Board together with the holder of a general commercial power of attorney within the meaning of Section 48 et seq. of the German Commercial Code (HGB). If only one member of the Management Board is appointed or if the Supervisory Board has authorized one member of the Management Board to represent the Company alone, such member shall solely represent the Company. |
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| (3) |
Der Aufsichtsrat kann alle oder einzelne Vorstandsmitglieder generell oder für den Einzelfall vom Verbot der Mehrfachvertretung gemäß § 181 2. Alternative BGB befreien; § 112 AktG bleibt unberührt. Im Übrigen wird die Gesellschaft durch Prokuristen im Sinne der §§ 48 ff. HGB oder andere Zeichnungsberechtigte nach näherer Bestimmung des Vorstands vertreten. |
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(3) |
The Supervisory Board may generally or in specific cases issue to all members or to specific members of the Management Board an exemption from the prohibition of representing more than one party pursuant to Section 181 2nd alternative of the German Civil Code (BGB); Section 112 of the AktG remains unaffected. The Company is otherwise represented by holders of a general commercial power of attorney within the meaning of Section 48 et seq. of the HGB (Prokuristen) or by other authorized signatories (andere Zeichnungsberechtigte) to be determined by the Management Board. |
| Deutsche Fassung |
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Convenience Translation |
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IV.
AUFSICHTSRAT |
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IV.
SUPERVISORY BOARD |
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§ 8
Zusammensetzung, Wahlen, Amtsdauer |
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Section 8
Composition, Elections, Term of Office |
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Der Aufsichtsrat besteht aus sechs (6) Mitgliedern, die von der Hauptversammlung gewählt werden. |
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(1) |
The Supervisory Board consists of six (6) members who shall be elected by the General Meeting. |
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| (2) |
Die Mitglieder des Aufsichtsrats werden vorbehaltlich einer anderweitigen Festlegung der Amtszeit bei der Wahl bis zur Beendigung der Hauptversammlung bestellt, die über die Entlastung für das vierte Geschäftsjahr nach dem Beginn der Amtszeit beschließt. Das Geschäftsjahr, in welchem die Amtszeit beginnt, wird hierbei nicht mitgerechnet. |
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(2) |
Unless otherwise specified at the time of their election, the members of the Supervisory Board are elected for a period terminating at the end of the General Meeting that resolves on the formal approval of the members' acts for the fourth fiscal year following the commencement of their term of office. The fiscal year in which the term of office begins shall not be included in this calculation. |
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| (3) |
Die Wahl eines Nachfolgers eines vor Ablauf der Amtszeit ausgeschiedenen Mitglieds erfolgt für den Rest der Amtszeit des ausgeschiedenen Aufsichtsratsmitglieds, soweit die Hauptversammlung die Amtszeit des Nachfolgers nicht abweichend bestimmt. Entsprechendes gilt, falls eine Nachwahl wegen Wahlanfechtung notwendig wird. |
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(3) |
If a member of the Supervisory Board leaves office before the end of his/her term, a successor shall be elected for the remaining term of the member who has left office unless the General Meeting specifies a different term of office for such a successor. The same procedure applies if a re-election becomes necessary due to the challenge of an election. |
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| (4) |
Die Hauptversammlung kann gleichzeitig Ersatzmitglieder bestellen, die in einer bei der Wahl festzulegenden Reihenfolge an die Stelle vorzeitig oder aufgrund von Wahlanfechtung ausscheidender Aufsichtsratsmitglieder treten. Tritt ein Ersatzmitglied an die Stelle des ausgeschiedenen Mitglieds, so erlischt sein Amt mit Ende der Hauptversammlung, in der eine Nachwahl nach vorstehendem § 8 Abs. 3 stattfindet, spätestens jedoch mit Ablauf der Amtszeit des ausgeschiedenen Aufsichtsratsmitglieds. War das infolge einer Nachwahl ausgeschiedene Ersatzmitglied für mehrere Aufsichtsratsmitglieder bestellt worden, lebt seine Stellung als Ersatzmitglied wieder auf. |
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(4) |
For members of the Supervisory Board, the General Meeting may, at the time of their election, appoint substitute members who shall replace members of the Supervisory Board leaving office before the end of their term or whose election has been successfully contested in an order to be determined at the time at which such substitute members are appointed. The term of office of such substitute members shall terminate at the end of the General Meeting in which a successor is elected in accordance with Section 8 para. 3 above and at the latest at the end of the term of office of the leaving member. If the substitute member whose term of office has terminated due to the election of a successor was appointed as a substitute member for several members of the Supervisory Board, his/her position as a substitute member shall renew. |
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| (5) |
Jedes Aufsichtsratsmitglied und Ersatzmitglied kann sein Amt auch ohne wichtigen Grund durch schriftliche Erklärung gegenüber dem Vorstand oder dem Vorsitzenden des Aufsichtsrats oder, im Falle einer Amtsniederlegung durch den Vorsitzenden, seinem Stellvertreter, mit einer Frist von einem Monat niederlegen. Der Aufsichtsratsvorsitzende kann den Vorsitz gegenüber dem Stellvertreter und der Stellvertreter kann das Stellvertreteramt gegenüber dem Vorsitzenden durch schriftliche Erklärung ohne wichtigen Grund mit einer Frist von einem Monat niederlegen. Der Vorstand, der Aufsichtsratsvorsitzende oder, im Falle der Niederlegung durch den Aufsichtsratsvorsitzenden, sein Stellvertreter, kann einer Verkürzung der vorgenannten Niederlegungsfristen oder einem Verzicht auf die Wahrung der Niederlegungsfristen zustimmen. |
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(5) |
Each member of the Supervisory Board and each substitute member may resign from office even without good cause by providing one month’s written notice to the Management Board, the Chairperson of the Supervisory Board or, in case of a resignation by the Chairperson, to his/her deputy. The Chairperson of the Supervisory Board can resign from chairmanship with written notice issued to the Deputy and his/her Deputy can resign from his/her Deputy position with written notice issued to the Chairperson, in each case, with or without good cause by providing one month’s notice. The Management Board, the Chairperson of the Supervisory Board, or in case of a resignation by the Chairperson his/her Deputy, may consent to a shortening or waiving the aforementioned periods. |
| Deutsche Fassung |
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Convenience Translation |
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§ 9
Vorsitzender und Stellvertreter |
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Section 9
Chairman and Deputy Chairman |
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Der Aufsichtsrat wählt aus seiner Mitte einen Vorsitzenden und einen Stellvertreter. Die Wahl soll im Anschluss an die Hauptversammlung, in der die Aufsichtsratsmitglieder neu gewählt worden sind, erfolgen; zu dieser Sitzung bedarf es keiner besonderen Einladung. Die Amtszeit des Vorsitzenden und des Stellvertreters entspricht, soweit nicht bei ihrer jeweiligen Wahl eine kürzere Amtszeit bestimmt wird, ihrer Amtszeit als Mitglied des Aufsichtsrats. |
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(1) |
The Supervisory Board elects from among its members a Chairperson and a Deputy Chairperson. The election shall take place following the General Meeting that has elected the new members of the Supervisory Board; no special invitation is necessary for this meeting. The term of office of the Chairperson and his/her Deputy corresponds to their term of office as members of the Supervisory Board unless a shorter term is determined at the time of their respective election. |
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Scheidet der Vorsitzende oder sein Stellvertreter vorzeitig aus diesem Amt aus, so hat der Aufsichtsrat jeweils unverzüglich eine Neuwahl vorzunehmen. |
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If the Chairperson or his/her Deputy leaves such office before the end of its term, the Supervisory Board shall conduct a new election without undue delay. |
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| (3) |
Der Stellvertreter des Vorsitzenden hat in allen Fällen, in denen er bei Verhinderung des Vorsitzenden in dessen Stellvertretung handelt, vorbehaltlich anderer Reglungen in dieser Satzung, die gleichen Rechte und Pflichten wie der Vorsitzende. |
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In all cases in which the Chairperson being absent or prevented from performing his office and the Deputy acts on his/her behalf, subject to other provisions of these Articles of Association, he/she has the same rights and obligations as the Chairperson. |
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| (4) |
Willenserklärungen des Aufsichtsrats sind im Namen des Aufsichtsrats von dem Vorsitzenden, im Falle seiner Verhinderung von seinem Stellvertreter abzugeben. Der Vorsitzende ist ermächtigt, Erklärungen für den Aufsichtsrat entgegen zu nehmen. |
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The Chairperson and, where he is unable to do so, the Deputy Chairperson shall be authorized to submit declarations of intention in the name of the Supervisory Board. The Chairperson is authorized to accept declarations on behalf of the Supervisory Board. |
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§ 10
Rechte und Pflichten des Aufsichtsrats |
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Section 10
Rights and Obligations of the Supervisory Board |
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Der Aufsichtsrat hat alle Aufgaben und Rechte, die ihm durch Gesetz und die Satzung zugewiesen werden. |
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The Supervisory Board shall have all rights and obligations assigned to it by law and by these Articles of Association. |
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Der Aufsichtsrat hat in der Geschäftsordnung für den Vorstand oder den Aufsichtsrat oder durch Beschluss zu bestimmen, dass bestimmte Geschäfte oder Arten von Geschäften nur mit seiner Zustimmung vorgenommen werden dürfen. |
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The Supervisory Board shall determine within the Rules of Procedure of the Management Board or of the Supervisory Board or by a resolution of its members that certain transactions or types of transactions shall be subjected to its approval. |
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Der Aufsichtsrat kann die Zustimmung zu einem bestimmten Kreis von Geschäften widerruflich allgemein oder für den Fall, dass das einzelne Geschäft bestimmten Anforderungen genügt, im Voraus erteilen. |
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The Supervisory Board may give revocable consent in advance to a certain group of transactions in general or to individual transactions that meet certain requirements. |
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Der Aufsichtsrat ist befugt, Änderungen der Satzung zu beschließen, die nur deren Fassung betreffen. |
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(4) |
The Supervisory Board is entitled to resolve amendments to the Articles of Association if such amendments relate only to the wording of the Articles. |
| Deutsche Fassung |
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Convenience Translation |
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§ 11
Geschäftsordnung und Ausschüsse |
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Section 11
Rules of Procedure and Committees |
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Der Aufsichtsrat gibt sich eine Geschäftsordnung im Rahmen der gesetzlichen Vorschriften und der Bestimmungen dieser Satzung. |
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The Supervisory Board shall adopt its own Rules of Procedure in accordance with the law and the provisions of these Articles of Association. |
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Der Aufsichtsrat kann nach Maßgabe der gesetzlichen Vorschriften Ausschüsse bilden. Soweit das Gesetz oder die Satzung es zulassen, kann der Aufsichtsrat ihm obliegende Aufgaben, Entscheidungsbefugnisse und Rechte auf seinen Vorsitzenden, einzelne seiner Mitglieder oder aus seiner Mitte gebildete Ausschüsse übertragen. Zusammensetzung, Befugnisse und Verfahren der Ausschüsse werden vom Aufsichtsrat festgelegt. |
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The Supervisory Board may set up committees in accordance with the law. To the extent permitted by law or by these Articles of Association, the Supervisory Board may delegate any of its duties, decision-making powers and rights to its Chairperson, to one of its members or to committees established from among its members. The Supervisory Board shall determine the composition, powers and procedures of such committees. |
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§ 12
Sitzungen und Beschlussfassung des Aufsichtsrats |
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Section 12
Meetings and Resolutions of the Supervisory Board |
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Die Sitzungen des Aufsichtsrats werden vom Vorsitzenden des Aufsichtsrats unter Einhaltung einer Frist von mindestens sieben Tagen einberufen, wobei der Tag der Absendung der Einladung und der Tag der Sitzung nicht mitgerechnet werden. Die Einberufung kann schriftlich, per Telefax, per E-Mail oder mittels sonstiger gebräuchlicher (einschließlich elektronischer) Kommunikationsmittel erfolgen. Der Vorsitzende kann diese Frist in dringenden Fällen abkürzen und die Sitzung mündlich oder fernmündlich einberufen. Im Übrigen gelten hinsichtlich der Einberufung des Aufsichtsrats die gesetzlichen Bestimmungen sowie die Regelungen der Geschäftsordnung für den Aufsichtsrat. |
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The Chairperson of the Supervisory Board shall convene the meetings of the Supervisory Board by providing at least seven days’ notice, not including the day on which the invitation is sent and the day of the meeting itself. Notice of meetings may be given in writing, by telefax, by email or any other customary means of communication (including electronic means of communication). In urgent cases the Chairperson may shorten this notice period and may call the meeting orally or by telephone. In all other respects regarding the calling of Supervisory Board meetings the rules provided by law as well as by the Rules of Procedure of the Supervisory Board shall apply. |
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Die Sitzungen des Aufsichtsrats werden vom Vorsitzenden geleitet. |
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Meetings of the Supervisory Board are chaired by the Chairperson. |
| Deutsche Fassung |
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Convenience Translation |
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Beschlüsse des Aufsichtsrats werden in der Regel in Sitzungen gefasst. Auf Anordnung des Vorsitzenden oder mit Zustimmung aller Mitglieder des Aufsichtsrats können Sitzungen auch in Form einer Telefonkonferenz oder mittels sonstiger elektronischer Kommunikationsmittel (insbesondere Videokonferenz) abgehalten und einzelne Aufsichtsratsmitglieder telefonisch oder mittels sonstiger elektronischer Kommunikationsmittel (insbesondere Videokonferenz) zugeschaltet werden; in diesen Fällen kann die Beschlussfassung im Wege der Telefonkonferenz oder mittels sonstiger elektronischer Kommunikationsmittel (insbesondere Videokonferenz) erfolgen. Abwesende bzw. nicht an der Konferenzschaltung mittels Telefon oder Videokonferenz teilnehmende Aufsichtsratsmitglieder können auch dadurch an der Beschlussfassung des Aufsichtsrats teilnehmen, dass sie schriftliche Stimmabgaben durch ein anderes Aufsichtsratsmitglied überreichen lassen. Darüber hinaus können abwesende Mitglieder ihre Stimme auch im Vorfeld der Sitzung, während der Sitzung oder nachträglich innerhalb einer vom Vorsitzenden des Aufsichtsrats zu bestimmenden angemessenen Frist abgeben. Solche Stimmen können mündlich, fernmündlich, per Telefax, per E-Mail oder mittels sonstiger gebräuchlicher (einschließlich elektronischer) Kommunikationsmittel abgegeben werden. Ein Recht zum Widerspruch gegen die vom Vorsitzenden angeordnete Form der Beschlussfassung besteht nicht. |
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Resolutions of the Supervisory Board shall generally be passed in meetings. At the order of the Chairperson or with the consent of all Supervisory Board members, the meetings of the Supervisory Board may also be held in the form of a telephone conference or by other electronic means of communication (especially by video conference); individual members of the Supervisory Board may connect to the meetings via telephone or by other electronic means of communication (especially by video conference); in such cases resolutions may also be passed by way of the telephone conference or by other electronic means of communication (especially by video conference). Members of the Supervisory Board who are absent from a meeting or who do not participate in a meeting via telephone or video conference can also participate in the passing of resolutions by submitting their votes in writing by way of another Supervisory Board member. In addition, absent members are permitted to cast their vote prior to or during the meeting or following the meeting within a reasonable period as determined by the Chairperson of the Supervisory Board. Such votes may be cast in oral form, by telephone, by telefax, by email or any other customary means of communication (including electronic means of communication). Objections to the form of voting determined by the Chairperson are not permitted. |
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| (4) |
Eine Beschlussfassung über Gegenstände der Tagesordnung, die nicht in der der Einladung beigefügten Tagesordnung enthalten waren und auch nicht bis zum dritten Tag vor der Sitzung mitgeteilt worden sind, falls nicht ein dringender Fall eine spätere Mitteilung rechtfertigt, ist nur zulässig, wenn kein Aufsichtsratsmitglied widerspricht. Abwesenden Mitgliedern ist in einem solchen Fall Gelegenheit zu geben, binnen einer vom Vorsitzenden des Aufsichtsrats zu bestimmenden angemessenen Frist schriftlich, mündlich, fernmündlich, per Telefax, per E-Mail oder mittels sonstiger gebräuchlicher (einschließlich elektronischer) Kommunikationsmittel der Beschlussfassung zu widersprechen oder ihre Stimme abzugeben. Der Beschluss wird erst wirksam, wenn kein abwesendes Aufsichtsratsmitglied innerhalb der Frist widersprochen hat. Telefonisch oder mittels sonstiger elektronischer Kommunikationsmittel zugeschaltete Mitglieder des Aufsichtsrats gelten als anwesend. |
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(4) |
Resolutions on matters not included in the agenda enclosed with the meeting invitation and for which notice has not been provided at least three days prior to the meeting, except in situations where later notification is justified by urgent circumstances, shall only be permitted for consideration if no member of the Supervisory Board objects thereto. In such a case, absent members must be given the opportunity to object to the adoption of such resolutions or to cast their vote in writing, orally, by telephone, telefax, email or any other customary means of communication (including electronic means of communication) within an adequate period of time to be determined by the Chairperson. Such resolutions become effective only after no absent Supervisory Board member has objected within such a period. Members of the Supervisory Board taking part via telephone or other electronic means of communication are considered to be present. |
| Deutsche Fassung |
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Convenience Translation |
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| (5) |
Beschlüsse können auch außerhalb von Sitzungen (im Sinne von § 12 Abs. 3) schriftlich, mündlich, fernmündlich, per Telefax, per E-Mail oder mittels sonstiger vergleichbarer Kommunikationsmittel sowie in Kombination der vorgenannten Formen, einschließlich im Umlaufverfahren, und in Kombination mit einer Beschlussfassung in einer Sitzung gefasst werden, wenn der Vorsitzende des Aufsichtsrats dies unter Beachtung einer angemessenen Frist anordnet oder sich alle Aufsichtsratsmitglieder an der Beschlussfassung beteiligen. Mitglieder, die sich bei der Beschlussfassung der Stimme enthalten, nehmen in diesem Sinne an der Beschlussfassung teil. Ein Recht zum Widerspruch gegen die vom Vorsitzenden angeordnete Form der Beschlussfassung besteht nicht. |
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(5) |
Resolution may also be adopted outside of meetings (in the meaning of Section 12 para. 3) in writing, orally, by telephone, by telefax or by email or any other comparable means of communication, whereas the aforementioned forms may also be combined, including by way of circular resolution, or in combination with adopting the resolution in a meeting at the order of the Chairperson of the Supervisory Board if preceded by reasonable notice or if all members of the Supervisory Board participate in the adoption of the resolution. Members who abstain from voting are considered to take part in the resolution. Objections to the form of voting determined by the Chairperson are not permitted. |
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Der Aufsichtsrat ist beschlussfähig, wenn mindestens die Hälfte seiner Mitglieder an der Beschlussfassung teilnimmt. Abwesende bzw. nicht telefonisch oder über sonstige elektronische Kommunikationsmittel (insbesondere Videokonferenz) teilnehmende oder zugeschaltete Aufsichtsratsmitglieder, die nach Maßgabe von § 12 Abs. 3 bzw. Abs. 5 ihre Stimme abgeben, sowie Mitglieder, die sich bei der Beschlussfassung der Stimme enthalten, nehmen in diesem Sinne an der Beschlussfassung teil. |
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(6) |
The Supervisory Board has a quorum if at least half of its members take part in the voting. Absent members of the Supervisory Board or members who do not participate or are connected via telephone or via other electronic means of communication (especially via video conference) and who cast their vote in accordance with Section 12 para. 3 or para. 5 above, as well as members who abstain from voting, are considered to take part in the voting for this purpose. |
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Beschlüsse des Aufsichtsrats werden, soweit das Gesetz nicht zwingend etwas anderes bestimmt, mit einfacher Mehrheit der abgegebenen Stimmen gefasst. Stimmenthaltungen gelten in diesem Sinne nicht als abgegebene Stimmen. Ergibt eine Abstimmung im Aufsichtsrat Stimmengleichheit, gibt die Stimme des Vorsitzenden des Aufsichtsrats den Ausschlag. Im Falle der Verhinderung des Vorsitzenden des Aufsichtsrats steht dieses Recht seinem Stellvertreter zu. |
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Unless otherwise provided by mandatory law, resolutions of the Supervisory Board are passed with a simple majority of the votes cast. Abstentions shall not count as a vote cast in this case. If any vote of the Supervisory Board results in a tie, the vote of the Chairperson of the Supervisory Board shall be decisive. In the absence of the Chairperson of the Supervisory Board, the Deputy Chairperson’s vote shall be decisive. |
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Über die Beschlüsse und Sitzungen des Aufsichtsrats (im Sinne von § 12 Abs. 3) sowie über in diesen Sitzungen verabschiedete Beschlüsse sind Niederschriften zu fertigen, die vom Vorsitzenden zu unterzeichnen sind. Beschlüsse außerhalb von Sitzungen (im Sinne von § 12 Abs. 3) werden vom Vorsitzenden schriftlich festgehalten und allen Aufsichtsratsmitgliedern zugeleitet. In der Niederschrift sind Ort und Tag der Sitzung, die Teilnehmer und die Art und Weise ihrer Teilnahme, die Gegenstände der Tagesordnung, der wesentliche Inhalt der Verhandlung und die Beschlüsse des Aufsichtsrats wiederzugeben. |
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(8) |
Minutes shall be taken of the resolutions and meetings of the Supervisory Board (in the meaning of Section 12 para. 3) and of the resolutions adopted in such meetings. Such minutes shall be signed by the Chairperson. Resolutions which were adopted outside meetings (in the meaning of Section 12 para. 3) must to be recorded by the Chairperson in writing and shall be made available to all members of the Supervisory Board. The minutes of meetings shall state the place and date of the meeting, the participants and the manner of their participation, the items on the agenda, the principal contents of the proceedings and the resolutions of the Supervisory Board. |
| Deutsche Fassung |
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Convenience Translation |
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§ 13
Vergütung |
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Section 13
Compensation |
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Die Vergütung der Mitglieder des Aufsichtsrats wird von der Hauptversammlung bewilligt. |
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The compensation of the members of the Supervisory Board is approved by the General Meeting. |
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V.
HAUPTVERSAMMLUNG |
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V.
General Meeting |
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§ 14
Ort und Einberufung |
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Section 14
Place and Convocation |
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Innerhalb der ersten acht Monate jedes Geschäftsjahres findet eine ordentliche Hauptversammlung der Aktionäre statt. |
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An annual General Meeting shall be held within the first eight months of each fiscal year. |
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Die Hauptversammlung wird vorbehaltlich der gesetzlichen Einberufungsrechte des Aufsichtsrats und einer Aktionärsminderheit durch den Vorstand einberufen. Die Hauptversammlung findet nach Wahl des einberufenden Organs am Sitz der Gesellschaft oder am Sitz einer deutschen Wertpapierbörse statt. |
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Subject to any existing legal rights authorizing the Supervisory Board and a minority of the shareholders to convene the General Meeting, the General Meeting shall be convened by the Management Board. The General Meeting shall be held, at the option of the body convening the General Meeting, either at the registered seat of the Company or at the place of a German stock exchange. |
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Die Hauptversammlung ist mindestens mit der gesetzlich vorgeschriebenen Mindestfrist einzuberufen. |
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The General Meeting shall be at least convened within the statutory minimum period. |
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§ 15
Teilnahme und Ausübung des Stimmrechts |
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Section 15
Attending and exercise of voting right |
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Zur Teilnahme an der Hauptversammlung und zur Ausübung des Stimmrechts sind die Aktionäre berechtigt, die sich rechtzeitig angemeldet und ihren Aktienbesitz nachgewiesen haben. Die Anmeldung muss der Gesellschaft unter der in der Einberufung hierfür mitgeteilten Adresse mindestens sechs Tage vor der Hauptversammlung (Anmeldefrist) zugehen. In der Einberufung kann eine kürzere, in Tagen zu bemessende Frist vorgesehen werden. Der Tag der Hauptversammlung und der Tag des Zugangs der Einberufungsmitteilung sind jeweils nicht mitzurechnen. |
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All shareholders who have duly submitted notification of attendance and of evidence of shareholding shall be entitled to attend the General Meeting. This registration must be received by the Company at the address specified in the convening notice at least six days prior to the day of the General Meeting (registration period). The convening notice of the General Meeting may provide for a shorter period to be measured in days. This period does not include the day of the General Meeting or the day of receipt of the convening notice. |
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Die Anmeldung muss in Textform (§ 126b BGB) oder auf einem sonstigen, von der Gesellschaft näher zu bestimmenden elektronischen Weg in deutscher oder englischer Sprache erfolgen. |
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A shareholder’s registration notification must be in text form (Section 126b German Civil Code (BGB)) or by way of other electronic means as specified by the Company in greater detail and must be in German or English. |
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Der Nachweis des Aktienbesitzes nach § 15 Abs. 1 ist durch Vorlage eines in Textform (§ 126b BGB) in deutscher oder englischer Sprache erteilten besonderen Nachweises über den Anteilsbesitz durch das depotführende Institut zu erbringen; hierzu genügt eine Bestätigung gemäß § 67c Abs. 3 AktG. Der besondere Nachweis über den Anteilsbesitz hat sich auf den gesetzlich bestimmten Zeitpunkt vor der Hauptversammlung (Nachweisstichtag) zu beziehen und muss der Gesellschaft unter der in der Einberufung hierfür mitgeteilten Adresse mindestens sechs Tage vor der Hauptversammlung zugehen. In der Einberufung kann eine kürzere, in Tagen zu bemessende Frist vorgesehen werden. Der Tag der Hauptversammlung und der Tag des Zugangs der Einberufungsmitteilung sind jeweils nicht mitzurechnen. |
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The evidence of shareholding pursuant to section 15(1) is to be submitted in the form of proof prepared by a depository institution in text form (section 126b BGB) in the German or English language; hereto a confirmation in accordance with section 67c(3) AktG shall be sufficient. The special proof of ownership of shares must refer to the point in time prior to the General Meeting as stipulated by law (record date) and be received by the Company at the address specified in the notice of the General Meeting at least six days prior to the General Meeting. The convening notice of the General Meeting may provide for a shorter period to be measured in days. This period does not include the day of the General Meeting or the day of receipt of the notice. |
| Deutsche Fassung |
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Convenience Translation |
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| (4) |
Das Stimmrecht kann durch Bevollmächtigte ausgeübt werden. Die Erteilung einer Vollmacht, ihr Widerruf und der Nachweis der Bevollmächtigung gegenüber der Gesellschaft bedürfen der Textform (§ 126b BGB), sofern in der Einberufung keine Erleichterungen bestimmt werden. Die Einzelheiten für die Erteilung der Vollmachten, ihren Widerruf und ihren Nachweis gegenüber der Gesellschaft werden mit der Einberufung der Hauptversammlung bekannt gemacht. § 135 AktG bleibt unberührt. |
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Voting rights may be exercised by proxy. The granting of a proxy, its revocation and the evidence of authority must be provided to the Company in text form (Section 126b BGB) unless the convening notice provides for a less strict form. Details on the granting of the proxy, its revocation and the evidence provided to the Company shall be announced together with the notice convening the General Meeting. Section 135 of the AktG remains unaffected. |
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Der Vorstand ist ermächtigt vorzusehen, dass Aktionäre ihre Stimmen, ohne an der Hauptversammlung teilzunehmen, schriftlich oder im Wege elektronischer Kommunikation abgeben dürfen (Briefwahl). Der Vorstand ist auch ermächtigt, Bestimmungen zum Umfang und Verfahren der Rechtsausübung von abwesenden Aktionären nach Satz 1 zu treffen. |
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The Management Board is authorized to provide that shareholders may cast their votes in writing or by electronic communication without attending the General Meeting (absentee vote). The Management Board is also authorized to determine the scope and procedure of the exercise of absentee voting rights according to sentence 1. |
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Der Vorstand ist ermächtigt vorzusehen, dass Aktionäre an der Hauptversammlung auch ohne Anwesenheit an deren Ort und ohne einen Bevollmächtigten teilnehmen und sämtliche oder einzelne ihrer Rechte ganz oder teilweise im Wege elektronischer Kommunikation ausüben können (Online-Teilnahme). Der Vorstand ist auch ermächtigt, Bestimmungen zum Umfang und Verfahren der Teilnahme und Rechtsausübung der abwesenden Aktionäre nach Satz 1 zu treffen. |
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(6) |
The Management Board is authorized to provide that shareholders may participate in the General Meeting without being present in person at the place of the General Meeting or being represented and may exercise all or specific shareholders' rights in total or in part by electronic communication (online participation). The Management Board is also authorized to determine the scope and the procedure of the exercise of online participation rights of absent shareholders according to sentence 1. |
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§ 16
Leitung der Hauptversammlung |
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Section 16
Chair of the General Meeting |
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| (1) |
Den Vorsitz in der Hauptversammlung führt der Vorsitzende des Aufsichtsrats. Die Hauptversammlung kann auch von einem anderen Mitglied des Aufsichtsrats oder einem externen Dritten geleitet werden, wenn das Mitglied des Aufsichtsrats oder der externe Dritte vom Aufsichtsrat zu diesem Zweck im Voraus für den Einzelfall oder für eine Mehrzahl von Fällen bestimmt worden ist. Übernimmt weder der Vorsitzende des Aufsichtsrats, noch ein anderes vorher bestimmtes Mitglied des Aufsichtsrats bzw. ein externer Dritter den Vorsitz der Hauptversammlung, wird der Versammlungsleiter unter dem Vorsitz des Aktionärs mit dem höchsten in der Hauptversammlung erschienenen Anteilsbesitz oder seines Vertreters durch die Hauptversammlung gewählt. |
|
(1) |
The General Meeting is chaired by the Chairperson of the Supervisory Board. The General Meeting may also be chaired by any other member of the Supervisory Board or a third party who have been designated in advance by the Supervisory Board for a single instance or multiple instances. If neither the Chairperson of the Supervisory Board, nor another previously-designated member of the Supervisory Board nor another previously designated third party takes the chair of the General Meeting, then the Chairperson of the General Meeting shall be elected by the General Meeting, which election shall be chaired by the shareholder with the highest number of shares present at the General Meeting, or his/her representative. |
| Deutsche Fassung |
|
Convenience Translation |
| |
|
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| (2) |
Der Versammlungsleiter leitet die Verhandlungen und regelt den Ablauf der Hauptversammlung. Er kann sich hierbei, insbesondere bei der Ausübung des Hausrechts, der Unterstützung von Hilfspersonen bedienen. Er bestimmt die Reihenfolge der Redner und der Behandlung der Tagesordnungspunkte sowie die Form, das Verfahren und die weiteren Einzelheiten der Abstimmung und kann, soweit gesetzlich zulässig, über die Zusammenfassung von sachlich zusammengehörigen Beschlussgegenständen zu einem Abstimmungspunkt entscheiden. |
|
(2) |
The Chairperson of the General Meeting chairs the proceedings of the General Meeting and directs the course of the proceedings at the General Meeting. He/she may, particularly in exercising rules of order, make use of assistants. He/she shall determine the sequence of speakers and the consideration of the items on the agenda as well as the form, the procedure and the further details of voting; he/she may also, to the extent permitted by law, decide on the bundling of factually-related resolution items into a single voting item. |
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| (3) |
Der Versammlungsleiter ist ermächtigt, das Rede- und Fragerecht zeitlich angemessen zu beschränken. Er kann dabei insbesondere Beschränkungen der Redezeit, der Fragezeit oder der zusammengenommenen Rede- und Fragezeit sowie den angemessenen zeitlichen Rahmen für den ganzen Hauptversammlungsverlauf, für einzelne Gegenstände der Tagesordnung und für einzelne Redner zu Beginn oder während des Verlaufs der Hauptversammlung angemessen festlegen; das schließt insbesondere auch die Möglichkeit ein, erforderlichenfalls die Wortmeldeliste vorzeitig zu schließen und den Schluss der Debatte anzuordnen. |
|
(3) |
The Chairperson of the General Meeting is authorized to impose a reasonable time limit on the right to ask questions and to speak. In particular, he may establish at the beginning of or at any time during the General Meeting, a limit on the time allowed to speak or ask questions or on the combined time to speak and ask questions, determine an appropriate time frame for the course of the entire General Meeting, for individual items on the agenda or individual speakers; he may also, if necessary, close the list of requests to speak and order the end of debate. |
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§ 17
Übertragung der Hauptversammlung |
|
Section 17
Transmission of the General Meeting |
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| (1) |
Der Vorstand ist ermächtigt, die Bild- und Tonübertragung der Hauptversammlung zuzulassen. Die näheren Einzelheiten regelt der Vorstand. |
|
(1) |
The Management Board is authorized to allow an audio-visual transmission of the General Meeting. The details shall be determined by the Management Board. |
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| (2) |
Die Teilnahme von Mitgliedern des Aufsichtsrats an der Hauptversammlung kann in Abstimmung mit dem Versammlungsleiter im Wege der Bild- und Tonübertragung erfolgen, sofern das Mitglied des Aufsichtsrats seinen Wohnsitz im Ausland hat oder am Tag der Hauptversammlung an der Teilnahme der Hauptversammlung verhindert ist. |
|
(2) |
Members of the Supervisory Board may be allowed to participate in the General Meeting by means of audio and video transmission in coordination with the Chairperson of the General Meeting, provided that the member of the Supervisory Board resides abroad or is unable to attend the General Meeting on the day of the General Meeting. |
| Deutsche Fassung |
|
Convenience Translation |
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§ 18
Beschlussfassung |
|
Section 18
Voting |
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| (1) |
Jede Aktie gewährt in der Hauptversammlung eine Stimme. |
|
(1) |
Each share carries one vote in the General Meeting. |
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| (2) |
Beschlüsse der Hauptversammlung werden mit einfacher Mehrheit der abgegebenen Stimmen und, soweit eine Kapitalmehrheit erforderlich ist, mit der einfachen Mehrheit des bei der Beschlussfassung vertretenen Grundkapitals gefasst, sofern nicht das Gesetz oder diese Satzung zwingend etwas anderes vorschreibt; dies gilt insbesondere für Kapitalerhöhungen gegen Einlagen (§ 182 Abs. 1 Satz 2 AktG), Kapitalerhöhungen aus Gesellschaftsmitteln (§§ 207 Abs. 2 Satz 1, 182 Abs. 1 Satz 2 AktG) und Satzungsänderungen mit Ausnahme der Änderung des Gegenstands des Unternehmens (§ 179 Abs. 2 Satz 2 AktG). |
|
(2) |
Resolutions of the General Meeting shall pass with a simple majority of the votes cast, and, in so far as a majority of the share capital is necessary for a passing vote, with a simple majority of the registered share capital represented at the voting, unless mandatory law or these Articles of Association stipulate otherwise; this applies in particular to capital increases against contributions (Section 182 para. 1 sentence 2 of the AktG), capital increases from the Company’s own funds (Sections 207 para. 2 sentence 1, 182 para. 1 sentence 2 of the AktG) and amendments to these Articles of Association, except for a change of the company purpose (Section 179 para. 2 sentence 2 of the AktG). |
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VI.
JAHRESABSCHLUSS und Gewinnverwendung |
|
VI.
annual Financial Statements and Appropriation of Profit |
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§ 19
Geschäftsjahr |
|
Section 19
Fiscal Year |
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| Das Geschäftsjahr der Gesellschaft ist das Kalenderjahr. |
|
The fiscal year of the Company is the calendar year. |
| Deutsche Fassung |
|
Convenience Translation |
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|
§ 20
Jahresabschluss |
|
§ 20
Annual Financial Statements |
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| (1) |
Der Vorstand hat den Jahresabschluss und den Lagebericht sowie, soweit gesetzlich vorgeschrieben, den Konzernabschluss und den Konzernlagebericht für das vergangene Geschäftsjahr innerhalb der gesetzlichen Fristen aufzustellen und diese Unterlagen unverzüglich dem Aufsichtsrat und dem Abschlussprüfer vorzulegen. Zugleich hat der Vorstand dem Aufsichtsrat einen Vorschlag vorzulegen, den er der Hauptversammlung für die Verwendung des Bilanzgewinns machen will. |
|
(1) |
The Management Board shall prepare the annual financial statements and the management report as well as, where required by law, the consolidated financial statements and the group management report for the preceding fiscal year within the statutory terms, and submit these documents without undue delay to the Supervisory Board and the auditors. At the same time the Management Board shall submit to the Supervisory Board a proposal for the appropriation of the distributable profit (Bilanzgewinn) that shall be presented to the General Meeting. |
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| (2) |
Sofern Vorstand und Aufsichtsrat den Jahresabschluss feststellen, sind sie ermächtigt, den Jahresüberschuss, der nach Abzug der in die gesetzliche Rücklage einzustellenden Beträge und eines Verlustvortrags verbleibt, zum Teil oder ganz in andere Gewinnrücklagen einzustellen. Die Einstellung eines größeren Teils als der Hälfte des Jahresüberschusses ist nicht zulässig, soweit die anderen Gewinnrücklagen die Hälfte des Grundkapitals übersteigen oder nach der Einstellung übersteigen würden. |
|
(2) |
If the Management Board and the Supervisory Board approve the annual financial statements, they shall be authorized to allocate the net income for the financial year, which remains after deduction of the amounts which must be allocated to statutory reserves and losses carried forward, in whole or in part, to other retained earnings. They shall not be permitted to allocate to retained earnings an amount exceeding half of the net income for the financial year to the extent that other retained earnings exceed half of the registered share capital or after such allocation would exceed half of the registered share capital. |
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§ 21
Gewinnverwendung und ordentliche Hauptversammlung |
|
§ 21
Appropriation of Profit and Ordinary General Meeting |
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| (1) |
Die Hauptversammlung beschließt alljährlich in den ersten acht Monaten des Geschäftsjahres über die Verwendung des Bilanzgewinns, über die Entlastung der Mitglieder des Vorstands und des Aufsichtsrats und über die Wahl des Abschlussprüfers (ordentliche Hauptversammlung) sowie in den im Gesetz vorgesehenen Fällen über die Feststellung des Jahresabschlusses. |
|
(1) |
The appropriation of distributable profits, formal approval of the acts of members of the Management Board and the Supervisory Board, the election of the auditor (ordinary General Meeting) and, to the extent required by law, the approval of financial statements shall be determined annually by a resolution of the General Meeting within the first eight months of each fiscal year. |
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| (2) |
Die Anteile der Aktionäre am Gewinn bestimmen sich nach dem Anteil am Grundkapital des jeweiligen Aktionärs. |
|
(2) |
Shareholder profits shares are determined in proportion to the number of shares in the registered share capital held by each respective shareholder. |
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| (3) |
Im Falle der Erhöhung des Grundkapitals kann die Gewinnbeteiligung der neuen Aktien abweichend von § 60 Abs. 2 AktG bestimmt werden. |
|
(3) |
In case of an increase in share capital, the participation of the new shares in the profit sharing may be determined in divergence from Section 60 para. 2 of the AktG. |
| Deutsche Fassung |
|
Convenience Translation |
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| (4) |
Die Hauptversammlung kann anstelle oder neben einer Barausschüttung eine Verwendung des Bilanzgewinns im Wege einer Sachausschüttung beschließen. Sie kann in dem Beschluss über die Verwendung des Bilanzgewinns Beträge in Gewinnrücklagen einstellen oder als Gewinn vortragen. |
|
(4) |
The General Meeting may resolve to distribute the distributable profit by way of a dividend in kind in addition to or instead of a cash dividend. The General Meeting may allocate further amounts to retained earnings or carry such amounts forward as profit in the resolution on the appropriation of distributable profits. |
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VII.
SCHLUSSBESTIMMUNGen |
|
VII.
Final Provisions |
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§ 22
Formwechselaufwand |
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§ 22
Costs of Transformation |
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| Die Kosten des Formwechsels der Gesellschaft in die Rechtsform der Aktiengesellschaft (insbesondere Notar- und Gerichtsgebühren, Kosten der Veröffentlichung, Steuern, Prüfungs- und Beratungskosten) trägt die Gesellschaft bis zu einem Betrag von EUR 200.000,00. |
|
The costs associated with changing the legal form of the Company into a stock corporation (in particular the notary and court fees, publication fees, taxes, audit fees and consultants fees) shall be borne by the Company in an amount up to EUR 200,000.00. |
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§ 23
Sprachfassung |
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§ 23
Language Version |
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| Die deutsche Sprachfassung dieser Satzung ist maßgeblich. Die englische Sprachfassung ist nicht Teil der Satzung und nur eine unverbindliche Übersetzung. |
|
The German language version of these Articles of Association shall prevail. The English version is not part of these Articles of Association and only a non-binding convenience translation. |
| Deutsche Fassung |
|
|
Convinience Translation |
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Bescheinigung gem. § 181 AktG
|
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Certificate according to Sec. 181 AktG (German Stock
Corporation Act) |
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Zu dem vorstehend wiedergegebenen Wortlaut
der Satzung bescheinige ich, dass die geänderten Bestimmungen der Satzung mit dem Beschluss des Aufsichtsrats vom 23. Juli 2024
und die unveränderten Bestimmungen mit der zuletzt zum Handelsregister eingereichten Fassung der Satzung übereinstimmen. |
|
|
With regard to the text of the Articles of Association
as quoted above, I hereby certify that the amended provisions of the Articles of Association correspond to the resolution of the supervisory
board dated 23 July 2024 and that the provisions which have not been amended correspond to the version of the Articles of Association
that was last submitted to the Commercial Register. |
Berlin, 30. Juli 2024 / 30 July 2024
L.S.
gez. C. Steinke
Christian Steinke, Notar / Notary
Seite / Page 21/21
Exhibit 5.1
| Noerr Partnerschaftsgesellschaft mbB / Börsenstraße 1 / 60313 Frankfurt am Main |
|
Dr. Julian Schulze De la Cruz
Rechtsanwalt |
| Jumia Technologies AG |
|
|
|
Skalitzer Straße 104
10997 Berlin
Germany |
|
Noerr
Partnerschaftsgesellschaft mbB
Rechtsanwälte Steuerberater
Wirtschaftsprüfer
Börsenstraße 1
60313 Frankfurt am Main
Germany
noerr.com |
| |
|
|
| Frankfurt am Main, August 6, 2024 |
|
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| |
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| Dear Ladies and Gentlemen: |
|
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|
We are acting as German legal counsel to Jumia Technologies AG, Berlin
(“Company”), a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany
(“Germany”), as to matters of German law in connection with the offering of 20,227,736 American Depositary Shares of
the Company (“ADSs”), each ADS representing the right to receive two ordinary bearer shares with no par value of the
Company. The ADSs represent a total of 40,455,472 ordinary bearer shares with a notional amount attributable to each ordinary bearer share
of EUR 1.00 per share (“New Shares”) from a capital increase from authorized capital against contributions in cash
(“Capital Increase”), resolved by the management board of the Company (“Management Board”) on July 22,
2024, with approval of the supervisory board of the Company (“Supervisory Board”) on July 23, 2024.
The New Shares underlying the ADSs will be issued pursuant to
a registration statement on Form F-3 (“Registration Statement”), filed with the Securities and Exchange Commission (“Commission”)
pursuant to the Securities Act of 1933, as amended through the date hereof (“Securities Act”), which was declared effective
by the Commission on August 29, 2023, the prospectus contained therein, and the prospectus supplement to be filed with the Commission
on August 6, 2024 pursuant to Rule 424(b) under the Securities Act (“Prospectus Supplement”). The information
contained in the Company’s current report on Form 6-K filed on August 6, 2024 (excluding Exhibit 99.1) is incorporated by reference
into the Registration Statement (“Current Report”). |
|
Assistant Carolin Herrmann
T +49 69 971477231 (ext.)
T +49 69 9714770
F +49 69 971477100
Julian.SchulzeDelaCruz@noerr.com
Our Ref:
JSCH
|
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I.
Scope of Inquiry
For the purpose of rendering this Opinion, we have examined and relied
upon the following documents (“Documents”):
(1)
a copy of the current articles of association (Satzung) of the Company with notarial certificate pursuant to section 181 AktG
dated July 30, 2024 and as registered with the commercial register (Handelsregister) of the local court
(Amtsgericht) of Charlottenburg, Germany (“Commercial Register”) on August 6, 2024
(“Articles of Association”); |
|
Noerr Partnerschaftsgesellschaft mbB has its registered
office in Munich, Germany, and is entered in the partnership register of the Local Court in Munich, Germany (Amtsgericht Muenchen) under
no. PR 512.
For further information, please refer to noerr.com. For
information on data protection at Noerr, please refer to noerr.com/data-protection.
Further details overleaf |
| (2) | a copy of an electronic excerpt from the Commercial Register, docket number HRB 203542 B, relating to
the Company dated August 6, 2024; |
| (3) | a copy of the certified (notariell beurkundet) protocol of the Company’s annual general meeting
(ordentliche Hauptversammlung) held on 27 June 2024, including the resolution on the creation of the Authorized Capital 2024/I
(Genehmigtes Kapital 2024/I); |
| (4) | a copy of the Management Board’s rules of procedure (Geschäftsordnung des Vorstands) dated
December 8, 2022; |
| (5) | a copy of the Supervisory Board’s rules of procedure (Geschäftsordnung des Aufsichtsrats)
dated June 9, 2020; |
| (6) | a copy of the minutes of the resolution of the Management Board on the Capital Increase dated July 22,
2024 (“MB Resolution”); |
| (7) | a copy of the minutes of the resolution of the Supervisory Board dated July 23, 2024, approving the
MB Resolution and resolving corresponding amendments of the Articles of Association (“SB Resolution” and, together with
the SB Resolution, “Resolutions”); |
| (8) | a copy of the subscription certificate (Zeichnungsschein) relating to the New Shares dated July
30, 2024; |
| (9) | a copy of the bank certificate (Einzahlungsbestätigung) regarding the payment of the aggregate
issue price (Gesamtausgabebetrag) for the New Shares (“Aggregate Issue Price”) dated July 30, 2024; |
| (10) | a copy of the global share certificate (Globalurkunde) representing the New Shares; |
| (11) | a copy of the commercial registration application (Handelsregisteranmeldung) relating to the issuance
of the New Shares dated July 30, 2024 (together with all relevant attachments thereto); |
| (12) | a draft of the Prospectus Supplement; and |
| (13) | such other documents as we deemed necessary for the purpose of rendering this Opinion. |
II.
Assumptions
In considering the Documents and rendering the
Opinion we have assumed without further inquiry that:
| (1) | the signatures on all Documents submitted to us are genuine signatures of the individuals concerned and
all persons signing, notarizing or otherwise executing the Documents, and instruments in connection therewith on behalf of the parties
thereto or powers of attorney for the execution of them on behalf of the parties thereto (i) were or, as applicable, will be legally capable
to do so (geschäftsfähig), and (ii) (other than representatives of the Company) had or, as applicable, will have proper
authority to do so; |
| (2) | all Documents submitted to us as originals are authentic and complete, and all Documents submitted to
us as certified or conformed copies, facsimile copies, photocopies, electronic copies or other copies conform to the original; |
| (3) | all Documents examined by us in draft form have been or, as applicable, will be executed in the form of
that draft examined by us; |
| (4) | all Documents submitted to us and made as of a specific date have not been altered since such date until
the date hereof; |
| (5) | all Documents are within the capacity and power of, and have been or, as applicable, will be validly authorized,
executed and delivered by and are binding on, the parties thereto (other than the Company) and correctly reflect the facts which they
purport to reflect and that there has been no breach of any of the terms thereof; |
| (6) | all matters that needed to be filed with the Commercial Register have been filed and that no filing procedures
with the Commercial Register with regard to matters that would have an impact on the opinion statements delivered herein are pending; |
| (7) | all Documents have been or, as applicable, will be duly authorized, executed and delivered by each party
(other than the Company) or duly authorized representatives of each of the parties (other than the Company) thereto; |
| (8) | there are no agreements or understandings among the parties, written or oral, and no usage of trade or
course of prior dealing among the parties that would, in either case, define, supplement, change or qualify the terms of any of the Documents
and that there are no other facts relevant for the rendering of this Opinion not disclosed to us; |
| (9) | each party (other than the Company) has obtained all authorizations, permissions, consents and exemptions
by or from any public or semi-public authority or agency of any country (other than Germany) and that each party (other than the Company)
has obtained all authorizations, permissions, consents and exemptions by or from any public authority or agency of Germany which may be
required in connection with the Capital Increase; |
| (10) | the correctness and completeness of all factual matters expressed in the Documents (save as expressly
provided for in, or following from, the statements made herein under IV. below); |
| (11) | none of the Resolutions is affected by any factual circumstance not apparent from the Documents (unless
known to us); |
| (12) | the share capital (Stammkapital) of Africa Internet Holding GmbH at the time of its conversion
into a German stock corporation correctly represented the number of limited liability interests (Geschäftsanteile) in the
company and (b) the reports filed with the commercial register together with the application for the registration of the conversion correctly
reflected the value of the relevant contribution; |
| (13) | the placement price of the ADSs representing the New Shares is not significantly lower than their market
price; |
| (14) | the actual seat (tatsächlicher Verwaltungssitz) of the Company is in Germany; and |
| (15) | nothing in this Opinion is affected by the provisions of any law other than German law or by any regulation
or other agreement of the parties or any other document other than those referred to above, |
(the foregoing items II.(1) to II.(15) together, “Assumptions”).
III.
Laws Considered
The undersigned is a member of the bar association
(Rechtsanwaltskammer) in Frankfurt am Main, Germany, and licensed as an attorney (Rechtsanwalt) in Germany. This Opinion
is, therefore, limited to and is given on the basis of the laws of Germany as they exist at the date hereof. We have not investigated
and do not express or imply an opinion herein with respect to the laws of any other jurisdiction. In particular, we have made no investigation
of the laws applicable in (i) the European Union as it affects any jurisdiction other than Germany, or (ii) the United States (or any
jurisdiction thereof or therein) as a basis for this Opinion.
This Opinion is also based on the assumption that
German law applies irrespective of any foreign law and irrespective of any referral by international private law to any foreign law. We
assume no obligation to advise either you or any other party of changes of law or its interpretation or facts that could occur after the
date hereof even if the change may affect the legal analysis or conclusion given in this Opinion.
IV.
Opinion Statements
Based upon the review of the Documents and the
Assumptions and subject to (i) the qualifications, statements and limitations below, and (ii) the facts, circumstances, events or documents
not disclosed to us, and having regard to such legal considerations as we have deemed relevant, we are of the opinion that:
| (1) | The Company is a German stock corporation (Aktiengesellschaft) duly registered with the Commercial
Register under docket number HRB 203542 B and validly existing under the laws of Germany. |
| (2) | Based upon (i) due authorization of the issuance of the New Shares by all requisite corporate action on
the part of the Company under German corporate law, (ii) subscription of and payment for the New Shares, (iii) registration of the
implementation of the Capital Increase in the Commercial Register, and (iv) due issuance, execution and delivery of the global share certificate
representing the New Shares, the New Shares will be validly issued, fully paid, and non-assessable (nicht nachschusspflichtig). |
| (3) | The statements set forth under the heading “MATERIAL TAX CONSIDERATIONS — German Taxation
— German Taxation of Holders of ADSs” in the Prospectus Supplement, insofar as they purport to constitute a description
or summary of matters of German law or provisions of agreements or other instruments described therein which are governed by German law,
represent fair descriptions or summaries of such matters or provisions and are true and accurate in all material respects. |
We do not express any opinion on the Documents
nor with respect to any other agreement or document or any matter unless specifically and expressly referred to in the foregoing
items IV.(1) to IV.(3) of this Opinion.
V.
Qualifications
The foregoing opinion statements are subject to
the following qualifications:
| (1) | We do not express an opinion as to matters of fact or the accuracy of any presentation of facts, nor do
we assume any obligation to investigate them (save as expressly provided for in, or following from, the statements made herein under IV.
above). |
| (2) | With respect to our opinion statements IV.(2) above, we note that pursuant to Sections 57 et seq. and 71a
AktG, except for dividends or unless explicitly permitted under the AktG, no payments, other distributions, financing arrangements, financial
support, or other services of any kind may be made, directly or indirectly, by a stock corporation (Aktiengesellschaft) to current
or future shareholders in their capacity as such. |
| (3) | Except as expressly stated in our opinion statement IV.(3) above, we have not verified, do not opine upon,
and do not assume any responsibility for the accuracy, completeness, or reasonableness of any statement contained in any offering material
relating to the New Shares or the Company. |
| (4) | With respect to the opinion statement IV.(3) above, we note that such opinion statement may be affected by
amendments to German tax law or to the regulations thereunder or by subsequent judicial or administrative interpretations thereof, which
might be enacted or applied with retroactive effect for the current tax assessment period. |
| (5) | We make no statement as to whether (i) the share capital of the Company or a part of it was repaid to
shareholders, or (ii) transactions took place in connection with increases of the share capital of the Company against cash contribution
which have to be considered as hidden contributions in kind (verdeckte Sacheinlagen). Based on our review of certain files and
corporate documents which were made available to us by the Company, no circumstances came to our attention which give rise to the suspicion
that repayments of the share capital or aforementioned transactions took place. |
This Opinion is furnished by us as German counsel
to the Company, speaks as of its date and may be relied upon by you only in connection with the Capital Increase, including any proceedings
in connection therewith or where required by any relevant laws or regulations. We do not assume any obligation to update this Opinion
or to inform you of any changes to facts or laws. Please note that such changes may have retrospective or retroactive effect.
All terms used herein are construed
in accordance with substantive German law. In this Opinion, German legal concepts are sometimes expressed in English terms and not in
their original German terms. The German legal concepts referred to may not be identical to the legal concepts described by the same English
terms as they exist under the laws of other jurisdictions. This Opinion may, therefore, only be relied upon under the express condition
that any issues of interpretation or liability arising thereunder will be exclusively governed by, limited to and construed in accordance
with, substantive German law without recourse to its rules on conflicts of law. The exclusive place of jurisdiction for any disputes arising
under or in connection with this Opinion is Frankfurt am Main, Germany.
This opinion is being furnished to you for submission
to the Commission as an exhibit to the Company’s current report on Form 6-K (“Current Report”) to be submitted
to the Commission on or about 6 August 2024, which is incorporated by reference in the Registration Statement. We hereby consent
to the filing of this opinion letter as an exhibit to the Current Report and its incorporation by reference and the reference to us under
the heading “Legal Matters” in the Prospectus Supplement. In giving such consent, we do not admit that we are in the category
of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Noerr Partnerschaftsgesellschaft mbB
Page 6/6
Exhibit 99.1
DESCRIPTION OF SHARE CAPITAL AND ARTICLES
OF ASSOCIATION
The following description
of the capital stock of Jumia Technologies AG (herein referred to as “we”, “us”, “our” and the “Company”)
is a summary of the rights of our ordinary shares and certain provisions of our articles of association in effect as of August 6, 2024.
This description supplements and updates the information contained in relevant sections of Exhibit 2.3 to our Annual Report on Form 20-F
for the fiscal year ended December 31, 2023 titled “Description of Securities”, which we filed with the Securities and Exchange
Commission, or SEC, on March 28, 2024 (the “Annual Report”). This summary does not purport to be complete and is qualified
in its entirety by the provisions of our articles of association filed with the Securities and Exchange Commission as an exhibit to the
Current Report on Form 6-K filed on August 6, 2024, as well as to the applicable provisions of German legislation on stock corporations.
Exhibit 2.3 of the Annual Report titled “Description of Securities”, our articles of association and applicable German legislation
on stock corporations should be read carefully and in conjunction with the below.
Share Capital
As of August 6, 2024, our
share capital as registered in the commercial register (Handelsregister) amounts to €244,925,650.00,
which is divided into 244,925,650 ordinary bearer shares (Inhaberaktien). All shares
are shares with no par value (Stückaktien ohne Nennbetrag) with a notional amount
attributable to each ordinary share of €1.00.
General Information on Capital Measures
Pursuant
to our articles of association, an increase of our share capital generally requires a resolution passed at our shareholders’ meeting
with both a simple majority of the share capital represented at the vote (three-quarters if the resolution excludes shareholders’
preemptive rights) and a simple majority of the votes cast.
The
shareholders at such meeting may authorize our management board to increase our share capital with the consent of our supervisory board
within a period of five years by issuing shares for a certain total amount, which we refer to as authorized capital (genehmigtes Kapital)
and is a concept under German law that enables us to issue shares without going through the process of obtaining another shareholders’
resolution. The aggregate nominal amount of the authorized capital created by the shareholders may not exceed one-half of the share capital
existing at the time of registration of the authorized capital with the commercial register.
Furthermore,
our shareholders may resolve to amend or create conditional capital (bedingtes Kapital). However, they may do so only to issue
conversion or subscription rights to holders of convertible bonds, in preparation for a merger with another company or to issue subscription
rights to employees and members of the management of our company or of an affiliated company by way of a consent or authorization resolution.
The resolution requires an affirmative vote of three quarters of the share capital represented at the vote and a simple majority of the
votes cast. According to German law, the aggregate nominal amount of the conditional capital created at the shareholders’ meeting
may not exceed sixty per hundred of the share capital existing at the time the resolution is adopted. The aggregate nominal amount of
the conditional capital created for the purpose of granting subscription rights to employees and members of the management of our company
or of an affiliated company may not exceed 20% of the share capital existing at the time the resolution is adopted.
Shareholders
may also resolve to increase the share capital from own resources (Kapitalerhöhung aus Gesellschaftsmitteln) by converting
capital reserves and profit reserves into registered share capital. Pursuant to our articles of association, any resolution pertaining
to an increase in share capital from own resources (Kapitalerhöhung aus Gesellschaftsmitteln) requires the vote of a simple
majority of the share capital represented at the vote and a simple majority of the votes cast.
All
shares issued by the Company are fully paid in (meaning that shareholders are not liable to the Company to pay in any further amount in
relation to their existing shares). Any resolution relating to a reduction of our share capital requires the vote of at least three-quarters
of the share capital represented at the vote as well as a simple majority of the votes cast.
Authorized Capital
Under the German Stock Corporation
Act (Aktiengesetz), a stock corporation’s shareholders’ meeting can authorize the management board to issue, with the
consent of the supervisory board, shares in a specified aggregate nominal amount of up to 50% of the issued share capital of such company
at the time the resolution becomes effective. The shareholders’ authorization becomes effective upon registration in the commercial
register (Handelsregister) and may extend for a period of no more than five years thereafter. Our authorized capital is summarized
below.
As of August 6, 2024, our
articles of association provided for the following authorized capital:
Authorized Capital 2024/I
The ordinary shareholders’
meeting of June 27, 2024, authorized the management board until June 26, 2029 (inclusive) to increase, once or repeatedly and each
time with the consent of the supervisory board, the share capital of the Company by a total amount of up to €98,945,871.00 through
the issuance of up to 98,945,871 new no-par value bearer shares against contributions in cash and/or in kind, including claims against
us. Following a partial utilization of this authorization in an amount of €40,455,472.00 through the issuance of 40,455,472 new no-par
value bearer shares underlying the 20,227,736 ADSs to be issued to the Sales Agents, paragraph 2 of section 4 of our articles
of association provides for a remaining authorization to increase the share capital of the Company by an amount of up to €58,490,399.00
through the issuance of up to 58,490,399 new no-par value bearer shares against contributions in cash and/or in kind, including claims
against us (“Authorized Capital 2024/I”). In principle, the shareholders are to be granted subscription rights. The shares
may also be subscribed for by one or more credit institution(s), securities institution(s) or one or more enterprise(s) operating pursuant
to sections 53(1) sentence 1, 53b(1) sentence 1 or 53b(7) of the German Banking Act (Gesetz über das Kreditwesen) with the
obligation to offer the shares to the shareholders of the Company pursuant to Section 186(5) of the German Stock Corporation Act (Aktiengesetz)
(so-called indirect subscription right).
The shareholders’ subscription
rights are excluded for one or more capital increases in the context of the Authorized Capital 2024/I,
| ● | if the utilization of the Authorized Capital 2024/I occurs in order to issue up to a maximum of 5,068,510 new shares of the Company
to settle, at the discretion of the Company, claims from vested Virtual Restricted Stock Units granted under the Virtual Restricted Stock
Unit Program 2021 of the Company (“VRSUP 2021”) to members of the management board of the Company and employees of the Company,
as well as members of the management and employees of companies affiliated with the Company within the meaning of section 15 of the German
Stock Corporation Act or their investment vehicles, subject to the details of the VRSUP 2021, in each case against contribution of the
claims for payments originated under the Virtual Restricted Stock Units; and/or |
| ● | if the utilization of the Authorized Capital 2024/I occurs in order to issue up to a maximum of 6,422,600 new shares of the Company
to settle, at the discretion of the Company, claims from vested Virtual Restricted Stock Units granted under the Virtual Restricted Stock
Unit Program 2023 of the Company (“VRSUP 2023”) to members of the management board of the Company and employees of the Company,
as well as members of the management and employees of companies affiliated with the Company within the meaning of section 15 of the German
Stock Corporation Act or their investment vehicles, subject to the details of the VRSUP 2023, in each case against contribution of the
claims for payments originated under the Virtual Restricted Stock Units. |
In these cases, the pro rata
amount of the share capital attributable to the new shares issued may not exceed 10% of the share capital of the Company existing at the
time of the adoption of the resolution on the Authorized Capital 2024/I or, if this amount is lower, existing at the time of the exercise
of the Authorized Capital 2024/I. Towards this 10%-limit shall count the pro-rata amount of the share capital attributable to any shares
that were issued or transferred from authorized capital, conditional capital or from treasury shares to members of the management board
of the Company and employees of the Company, as well as members of the management and employees of companies affiliated with the Company
within the meaning of section 15 of the German Stock Corporation Act or their investment vehicles to settle claims under participation
programs since the resolution on the Authorized Capital 2024/I was adopted.
Further, the management board
is authorized to exclude the shareholders’ subscription rights with the consent of the supervisory board for one or more capital
increases in the context of the Authorized Capital 2024/I,
| ● | in order to exclude fractional amounts from the subscription right; |
| ● | to the extent necessary to grant holders or creditors of convertible bonds, options, profit rights and/or profit bonds (or combinations
of these instruments) (hereinafter together “Bonds”) with conversion or option rights, or conversion or option obligations,
and which were or will be issued by the Company or a direct or indirect subsidiary, subscription rights to new no-par value bearer shares
of the Company in the amount to which they would be entitled as shareholders after the exercise of the option or conversion rights, or
after fulfilment of the conversion or option obligations or to the extent the Company exercises with regard to such Bonds its right to
grant, totally or in part, shares of the Company in lieu of payment of the amount due; |
| ● | to issue shares for cash contributions, provided that the issue price of the new shares is not significantly lower than the stock
exchange price of the shares of the Company already listed on the stock exchange in the meaning of sections 203(1) and (2), 186(3) sentence
4 of the German Stock Corporation Act and that the proportional amount of the share capital attributable to the new shares issued under
the exclusion of subscription rights in accordance with section 186(3) sentence 4 of the German Stock Corporation Act does not exceed
a total of 20% of the share capital of the Company, whether at the time the Authorized Capital 2024/I comes into effect or – in
case such amount is lower – is exercised. Towards the above threshold of 20% of the share capital counts the pro-rata amount of
the share capital attributable to the 40,455,472 shares underlying the 20,227,736 ADSs to be issued to the Sales Agents under the Sales
Agency Agreement. Towards the above threshold of 20% of the share capital shall also count the pro-rata amount of the share capital attributable
to any shares, (i) that are sold during the term of the Authorized Capital 2024/I on the basis of an authorization to sell treasury shares
pursuant to section 71(1) no. 8 sentence 5 second half sentence in conjunction with section 186(3) sentence 4 of the German Stock Corporation
Act subject to the exclusion of shareholders’ subscription rights; (ii) that are issued to satisfy Bonds with conversion or option
rights, or conversion or option obligations, provided that such Bonds were issued in analogous application of section 186(3) sentence
4 of the German Stock Corporation Act during the term of the Authorized Capital 2024/I subject to the exclusion of the shareholders’
subscription rights; or (iii) that are issued during the term of the Authorized Capital 2024/I on the basis of other authorized capital,
provided that such shares are issued subject to the exclusion of the shareholders’ subscription rights pursuant to section 203(2)
sentence 1 in conjunction with section 186(3) sentence 4 of the German Stock Corporation Act or on the basis of other capital measures
subject to the exclusion of the shareholders’ subscription rights in analogous application of section 186(3) sentence 4 of the German
Stock Corporation Act; |
| ● | to issue shares for contributions in kind, in particular – but not limited thereto – in the context of mergers or for
the purpose of (including indirect) acquisitions of companies, businesses, parts of companies, interests in companies or other assets,
including claims against the Company or any of its group companies, or to satisfy Bonds issued for contributions in kind; or |
| ● | in order to distribute a dividend in kind, in the context of which shares of the Company (also in part or subject to election)
may be issued against contribution of dividend claims (scrip dividend). |
The management board is authorized,
with the consent of the supervisory board, to determine any additional content of the rights
attached to the shares and the conditions of the share issue; this includes the determination of the profit participation of the new shares,
which may, in deviation from section 60(2) of the German Stock Corporation Act, also participate in the profit of completed fiscal years.
The supervisory board is authorized to adjust the wording of our articles of association accordingly following any partial or the complete
utilization of the Authorized Capital 2024/I or upon expiry of the period for the utilization of the Authorized Capital 2024/I.
Conditional Capital
As of August
6, 2024, our articles of association provided for the following conditional capital:
Conditional Capital 2021/II
Pursuant
to paragraph 3 of section 4 of our articles of association, our share capital is conditionally increased by up to €89,799,708.00
through issuance of up to 89,799,708 new no-par value bearer shares (“Conditional Capital 2021/II”). The purpose of Conditional
Capital 2021/II is to grant shares to holders or creditors of convertible bonds, options, profit rights and/or profit bonds (or combinations
of these instruments) (together “Bonds”) issued on the basis of the authorization granted by the shareholders’ meeting
of June 9, 2021 upon the exercise of conversion or option rights or the fulfilment of conversion or option obligations. The new shares
are issued based on the conversion or option price to be determined in accordance with the authorization granted by the shareholders’
meeting of June 9, 2021. The conditional capital increase will only be implemented to the extent that the holders or creditors of the
Bonds, which are issued or guaranteed by the Company, dependent companies or by companies in which the Company owns a majority interest
either directly or indirectly by June 8, 2026 (inclusive) based on the authorization granted by the shareholders’ meeting of June
9, 2021, exercise any conversion or option right or fulfill any conversion or option obligation under the Bonds, or to the extent the
Company grants shares in the Company instead of paying the amount due as well as to the extent the conversion or option rights or the
conversion or option obligations are not serviced by treasury shares but rather by shares from authorized capital or other consideration.
The new shares have the right to participate in any profits from the beginning of the financial year in which they are created and for
all subsequent financial years. The management board is authorized to determine the further details of the implementation of the conditional
capital increase. The supervisory board is authorized to amend our articles of association accordingly after any utilization of the Conditional
Capital 2021/II and upon expiration of all option or conversion periods.
Subscription Rights (Preemptive Rights)
According
to the German Stock Corporation Act (Aktiengesetz), every shareholder is generally entitled to subscription rights (commonly known
as preemptive rights) to any new shares issued within the framework of a capital increase, including convertible bonds, bonds with warrants,
profit sharing rights or income bonds in proportion to the number of shares the respective shareholder holds in the corporation’s
existing share capital. Under German law, these rights do not apply to shares issued out
of conditional capital. A minimum subscription period of two weeks must be provided for the exercise of such subscription rights.
Under
German law, the shareholders’ meeting may pass a resolution excluding preemptive rights if at least three-quarters
of the share capital represented at the vote and a simple majority of the votes cast adopts the resolution. To exclude preemptive rights,
the management board must also make a report available to the shareholders justifying the exclusion and demonstrating that the company’s
interest in excluding the subscription rights outweighs the shareholders’ interest in having them. Such justification may be subject
to judicial review. In the case of a so-called simplified exclusion of preemptive rights, we may issue new shares without preemptive rights
but with no specific justification, either. The statutory requirements for this simplified exclusion of preemptive rights under German
law are that (i) we increase the share capital against cash contributions, (ii) the amount of the capital increase does not exceed 20%
of the existing share capital and (iii) the issue price of the new shares is not significantly lower than the market price of our shares
(for this purpose, the market price may also be considered the market price of an ADS listed on the NYSE divided by the number of our
shares or the fraction of one of our shares represented by an ADS, as the case may be). Our current Authorized Capital 2024/I authorizes
our management board, with the consent of the supervisory board, to issue shares using this procedure for a simplified exclusion of preemptive
rights.
The
authorization of the management board to issue convertible bonds or other securities convertible into shares must be limited to a period
not exceeding five years from the date of the relevant shareholders’ resolution.
Form, Certification and Transferability of
the Shares
The
form and contents of our global share certificates, any dividend certificates, renewal certificates and interest coupons are determined
by our management board with the approval of our supervisory board. A shareholder’s right
to certificated shares is excluded, to the extent permitted by law and to the extent that certification is not required by the stock exchange
on which the shares are admitted to trading. We are permitted to issue global share certificates that represent one or more shares.
All of our outstanding shares
are bearer shares with no par value (auf den Inhaber lautende Stückaktien ohne Nennbetrag). Any resolution regarding a capital
increase may determine the profit participation of the new shares resulting from such capital increase.
Our
shares are freely transferable under German law, with the transfer of ownership governed by the rules of the relevant clearing system.
Our articles of association
do not include any provisions that would have a direct effect of delaying, deferring or preventing a change of control. However, in the
event of a hostile takeover, we could use our authorized capital to increase our share capital to issue new shares to an investor at a
premium. See “-Authorized Capital.” An increase in the number of shares outstanding could have a negative effect on a party’s
ability to carry out a hostile takeover.
Shareholders’ Meetings, Resolutions and
Voting Rights
Pursuant to
our articles of association, shareholders’ meetings may be held at our registered seat or at the place of a German stock
exchange. In general, shareholders’ meetings are convened by our management board.
The
supervisory board is additionally required to convene a shareholders’ meeting in cases where this is required under binding statutory
law (i.e., if this is in the best interest of our company). In addition, shareholders who, individually or
as a group, own at least 5% of our share capital may request that our management board convene a shareholders’ meeting. If our management
board does not convene a shareholders’ meeting upon such a request, the shareholders may petition the competent German court for
authorization to convene a shareholders’ meeting.
Pursuant to
our articles of association, the convening notice for a shareholders’ meeting must be made public at least 36 days prior to the
meeting. Shareholders who, individually or as a group, own at least 5% or €500,000 of our share capital may require that modified
or additional items be added to the agenda of the shareholders’ meeting. For each new item, an explanation of the requested change
must be provided or a voting proposal (Beschlussvorlage). Any request for an amendment of the agenda of the shareholders’
meeting must be received by the Company within 30 days prior to the meeting. The Company must publish any requests for the amendment of
the agenda of the shareholders’ meeting immediately. Under German law, our annual general shareholders’ meeting must take
place within the first eight months of each fiscal year.
Among other things,
it is the general shareholders’ meeting competence to decide on the following issues:
| ● | appropriation and use of annual net income; |
| ● | discharge or ratification of the actions taken by the members of our management board and our supervisory board; |
| ● | the approval of our statutory auditors; |
| ● | increases or decreases in our share capital; |
| ● | the election of supervisory board members; and |
| ● | to the extent legally required, the approval of our financial statements. |
Each ordinary share grants
one vote in a shareholders’ meeting. Voting rights may be exercised by authorized proxies, which may be appointed by the Company
(Stimmrechtsvertreter). The granting of a power of attorney must be made in text form.
Generally, the shareholder or an authorized proxy must be present at the shareholders’ meeting to cast a vote. However, under the
Company’s articles of association, the management board may determine in the invitation to the shareholders’ meeting that
shareholders may submit their votes in writing or by means of electronic communication without attending the shareholders’ meeting
in person (absentee vote) or that shareholders may participate in the shareholders’ meeting in total or in part via electronic communication
without attending the shareholders’ meeting in person (online participation).
Our articles of association
provide in Section 18 that the resolutions of the shareholders’ meeting be adopted by a simple majority of the votes cast. To the
extent required by law, certain resolutions may have to be approved by a simple majority of the share capital represented at the meeting,
in addition to the majority of the votes cast.
Neither German law nor our
articles of association provide for a minimum participation requirement to form a quorum
at our shareholders’ meetings.
Under German law, certain
resolutions of fundamental importance require the affirmative vote of at least three-quarters
of the share capital present or represented in the voting at the time of adoption of the resolution. Resolutions of fundamental importance
include, in particular, capital increases with exclusion of subscription rights, capital decreases, the creation of authorized or conditional
share capital, the dissolution of a company, a merger into or with another company, split-offs and split-ups, the conclusion of inter-company
agreements (Unternehmensverträge) as defined in the German Stock Corporation Act (Aktiengesetz) (in particular domination
agreements (Beherrschungsverträge) and profit and loss transfer agreements (Ergebnisabführungsverträge) or
a combination thereof), and a change of the company’s purpose or legal form.
A company’s articles
of association may set forth for a period of no more than five years (with the potential for renewal by way of a shareholders’ resolution)
that a general shareholders’ meeting shall be held as virtual meeting or may authorize
the management board to decide to hold a general shareholders’ meeting as virtual meeting without the physical presence of the shareholders
or their proxies at the place of the meeting. Such virtual meeting must comply with, among others, the following requirements: shareholders
must be able to exercise voting rights by way of electronic communication or via proxies; shareholders shall be able to submit statements
on agenda items ahead of the meeting by way of electronic communication; there must be audio and video transmission of the whole meeting;
shareholders who have electronically tuned into the meeting shall be able to speak at the meeting and to submit applications or voting
proposals, in each case by way of video communication during the meeting, and to contest any resolution adopted at the meeting by way
of electronic communication; shareholders shall be able to request information by way of electronic communication. Currently, our articles
of association do not include such a provision.
Dividends
Under
German law, distributions of dividends on shares for a given fiscal year are generally determined by a process in which the management
board and supervisory board submit a proposal to our annual general shareholders’ meeting held in the subsequent fiscal year and
such annual general shareholders’ meeting adopts a resolution.
German
law provides that a resolution concerning dividends and distribution thereof may be adopted only if the company’s unconsolidated
financial statements prepared in accordance with German law show net retained profits. In determining the profit available for distribution,
the result for the relevant year must be adjusted for profits and losses brought forward from the previous year and for withdrawals from
or transfers to reserves. Certain reserves are required by law and must be deducted when calculating the profit available for distribution.
Shareholders
participate in profit distributions in proportion to the number of shares they hold. Dividends on shares resolved by the general shareholders’
meeting are paid annually, shortly after the general shareholders’ meeting, in compliance with
the rules of the respective clearing system. Dividend payment claims are subject to a three-year statute of limitation in the company’s
favor.
Liquidation Rights
Apart from liquidation as
a result of insolvency proceedings, we may be liquidated only with a vote of the holders
of at least three-quarters of the share capital represented at the shareholders’ meeting at which such a vote is taken. If we are
liquidated, any assets remaining after all of our liabilities have been paid off would be distributed among our shareholders in proportion
to their holdings in accordance with German statutory law. The German Stock Corporation Act (Aktiengesetz) provides certain protections
for creditors which must be observed in the event of liquidation.
Authorization to Acquire Our Own Shares
We may not acquire our own
shares unless authorized by the shareholders’ meeting or in other very limited circumstances as set out in the German Stock Corporation
Act (Aktiengesetz). Shareholders may not grant a share repurchase authorization lasting for more than five years. The German Stock
Corporation Act (Aktiengesetz) generally limits repurchases to 10% of our share capital and resales must generally be made either
on a stock exchange, in a manner that treats all shareholders equally, or in accordance with the rules that apply to subscription rights
relating to a capital increase.
The shareholders’ meeting
adopted a resolution on August 14, 2023 authorizing the management board, for a period until August 13, 2028, subject to the
consent of the supervisory board and provided it complies with the legal requirement of equal treatment, to purchase our shares in an
amount up to 10% of the lower of our total share capital existing on August 14, 2023
or our total share capital existing at the time the authorization is exercised. At the discretion of the management board, such purchase
may be effected on the stock market or by means of a public offer or a public solicitation to submit sales offers.
The management board is generally
authorized to use treasury shares for all legally permissible purposes.
Squeeze-Out of Minority Shareholders
Under German law, the shareholders’
meeting of a stock corporation (Aktiengesellschaft) may resolve upon request of a shareholder that holds at least 95% of the share
capital that the shares held by any remaining minority shareholders be transferred to this shareholder against payment of “adequate
cash compensation” (Ausschluss von Minderheitsaktionären). This amount must take into account the full value of the
company at the time of the resolution, which is generally determined using the future earnings value method (Ertragswertmethode).
A squeeze-out in the context
of a merger (umwandlungsrechtlicher Squeeze-Out) only requires a majority shareholder to hold
at least 90% of the share capital.
Shareholder Notification Requirements
In accordance with the provisions
of the German Stock Corporation Act (Aktiengesetz), an enterprise has to inform a stock corporation (Aktiengesellschaft)
without undue delay and in writing when its shares held in the share capital exceed or fall
below 25% and/or 50%, respectively, in the capital or voting rights. Following receipt of the written notification, the corporation has
to publish this information without undue delay in the German Federal Gazette (Bundesanzeiger).
Differences in Corporate Law
The applicable provisions
of the German Stock Corporation Act (Aktiengesetz) differ from laws applicable to U.S. corporations and their shareholders. Set
forth below is a summary of certain differences between the provisions of the German Stock Corporation Act (Aktiengesetz) applicable
to us and the Delaware General Corporation Law relating to shareholders’ rights and protections.
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Germany |
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Delaware |
| Board System |
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Under German law, a stock corporation has a two-tier
board structure composed of the management board (Vorstand) and the supervisory board (Aufsichtsrat).
The management board is responsible for running
the company’s day-to-day business and affairs and representing the company in dealings with third parties.
The supervisory board has a control and supervisory
function. The supervisory board does not actively manage the company but certain management board actions require the approval of the
supervisory board. |
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Under Delaware law, a corporation has a unitary
board structure and it is the responsibility of the board of directors to appoint and oversee the management of the corporation on behalf
of and in the best interests of the shareholders of the corporation.
Management is responsible for running the corporation
and overseeing its day-to-day operations. |
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| Number of Board Members / Directors |
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Under German law, the management board of a stock
corporation must have at least one member, and the number of members shall be determined in the manner provided in the company’s
articles of association.
The supervisory board of a stock corporation must
have at least three but—depending on the share capital—no more than 21 members, whereby the number of supervisory board members
must be divisible by three if this is necessary for the fulfilment of employee co-determination requirements. The articles of association
of the company must specify if the supervisory board has more than three members. |
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Under Delaware law, a corporation must have at least one director and the number of directors shall be fixed by or in the manner provided in the bylaws, unless the certificate of incorporation otherwise fixes the number of directors. |
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Germany |
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Delaware |
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Supervisory board members are either appointed
by the shareholders’ meeting or determined by one or more individual shareholders based on a delegation right for such shareholders
provided for in the company’s articles of association.
Depending on the number of employees of the company,
the supervisory board may be required to include employee representatives subject to the provisions of the German One-Third Employee Participation
Act, (Drittelbeteiligungsgesetz), which applies to companies that have at least 500 employees in Germany, or the German Co-Determination
Act (Mitbestimmungsgesetz), which applies to companies that have at least 2,000 employees in Germany. Such rules result in different
appointment rules for supervisory board members: In companies which are subject to the German One-Third Employee Participation Act, two-thirds
of supervisory board members are representatives of the shareholders, while one-third are representatives of the employees. In companies
which are subject to the German Co-Determination Act, half of the supervisory board members are representatives of the shareholders and
the other half are representatives of the employees. In the event of a tie, the Chairperson has the tie-breaking vote. The employee representatives
in the supervisory board are elected by the employees following certain procedures set forth in applicable law.
Additionally, the supervisory board of German
stock corporations that are both listed and subject to the German Co-Determination Act must be composed of at least 30% women or men,
depending on which is the less represented group. |
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| Appointment and Removal of Board Members / Directors |
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Members of the management board of a German stock
corporation are appointed by the supervisory board for a maximum period of five years. Reappointment, including repeated reappointment,
is permissible. The supervisory board may remove a member of the management board prior to the expiration of his or her term only for
good cause, such as for gross breach of fiduciary duties or if the shareholders’ meeting passes a vote of no-confidence with respect
to such member, unless the supervisory board deems the no-confidence vote to be clearly unreasonable. The shareholders themselves are
not entitled to appoint or dismiss the members of the management board.
Under German law, a member of a supervisory board
may be elected for a term of up to approximately five years depending on the date of the annual shareholders’ meeting at which such
member is elected, which is the standard term of office. Reelection, including repeated reelection, is permissible. Prior to the expiration
of his or her term, supervisory board members who have been appointed by the shareholders’ meeting may be removed by a resolution
of the general meeting requiring a three-quarter majority of the votes cast, unless otherwise provided by the company’s articles
of association. Supervisory board members who are delegated by a shareholder or the company’s employees may be revoked and the resulting
vacancy filled at the sole discretion of such shareholder or the employees. |
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Under Delaware law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except (a) unless the certificate of incorporation provides otherwise, in the case of a corporation whose board of directors is classified, shareholders may effect such removal only for cause, or (b) in the case of a corporation having cumulative voting, if less than the entire board of directors is to be removed, no director may be removed without cause if the votes cast against such director’s removal would be sufficient to elect such director if then cumulatively voted at an election of the entire board of directors, or, if there are classes of directors, at an election of the class of directors of which such director is a part. |
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Germany |
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Delaware |
| Vacancies on the Boards |
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Under German law, vacant positions on the management
board are filled by the supervisory board in accordance with the general rules of appointment, which provide that vacancies are filled
by the simple majority of supervisory board votes cast, unless otherwise provided by the company’s articles of association. In case
of emergencies, a vacant position on the management board may be filled by an individual appointed by the court.
If the number of supervisory board members falls
below the number of members required for a quorum, or the minimum number of members required by law or the articles of association,
upon application to the court having jurisdiction by the management board, a member of the supervisory board or a shareholder to the competent
court, the vacant position on the supervisory board may be filled with an individual appointed by the court. |
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Under Delaware law, vacancies and newly created directorships may be filled by a majority of the directors then in office (even though less than a quorum) or by a sole remaining director unless (i) otherwise provided in the certificate of incorporation or bylaws of the corporation or (ii) the certificate of incorporation directs that a particular class of stock is to elect such director, in which case a majority of the other directors elected by such class, or a sole remaining director elected by such class, will fill such vacancy. |
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| Annual Shareholders’ Meeting |
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Under German law, a stock corporation must hold an annual shareholders’ meeting within eight months of the end of its financial year. Unless otherwise provided for in the articles of association, the shareholders’ meeting shall be held at the company’s seat or, if applicable, at the venue where its shares are listed. |
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Under Delaware law, the annual meeting of shareholders shall be held at such place, on such date and at such time as may be designated from time to time by the board of directors or as provided in the certificate of incorporation or the bylaws. |
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| Calling of Shareholders’ Meetings |
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Under German law, extraordinary shareholders’ meetings, in addition to the annual shareholders’ meetings, may be called by the management board or, if calling a meeting is required in the best interest of the company, the supervisory board. Shareholders holding shares representing at least 5% of the company’s share capital may request that the management board convenes an extraordinary shareholders’ meeting. If the management board does not convene a shareholders’ meeting upon such a request, the shareholders may petition the German court having jurisdiction for authorization to convene a shareholders’ meeting. |
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Under Delaware law, special meetings of the shareholders may be called by the board of directors or by such person or persons as may be authorized by the certificate of incorporation or by the bylaws. |
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Germany |
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Delaware |
| Notice of Shareholders’ Meetings |
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Under German law, unless a longer period is provided
for in the articles of association, the shareholders must be given at least 30 days’ advance notice of the shareholders’ meeting.
Such notice must at least specify the name of the company, the statutory seat of the company as well as the location, date and time of
the shareholders’ meeting. In addition, the invitation must contain the agenda items as well as the management board’s and
the supervisory board’s voting proposal for each agenda item.
The formalities relating to calling and holding
a shareholders’ meeting can be waived, provided that all shareholders eligible to attend the shareholders’ meeting are present
or represented at the meeting and grant their consent. |
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Under Delaware law, unless otherwise provided in the certificate of incorporation or bylaws, written or electronic notice of any meeting of the shareholders must be given to each shareholder entitled to vote at the meeting not less than ten nor more than 60 days before the date of the meeting and shall specify the place, date, hour and purpose or purposes of the meeting. |
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| Proxy Voting |
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Under German law, a shareholder may authorize
another person to attend, speak and vote at a shareholders’ meeting of the company on such shareholder’s behalf by proxy.
With respect to management board meetings, a management
board member may issue a proxy to another management board member to represent him or her at the meeting and vote on his or her behalf.
With respect to supervisory board meetings, a
supervisory board member may participate in a vote by written vote issued to, and presented at the meeting by, another supervisory board
member or a third party entitled to attend the supervisory board meeting. |
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Under Delaware law, at any meeting of shareholders,
a shareholder may designate another person to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer period.
A director of a Delaware corporation may not issue
a proxy representing the director’s voting rights as a director. |
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| Preemptive / Subscription Rights |
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Under German law, existing shareholders have statutory subscription rights with respect to any new shares or securities convertible into shares issued pro rata to the nominal value of their respective holdings in the company, unless (i) shareholders holding shares representing three-quarters of the registered share capital represented in the relevant shareholder vote have resolved upon the full or partial exclusion of the subscription rights and (ii) such exclusion is justified by good and objective cause. No separate resolution on the exclusion of subscription rights is required if all shareholders waive their statutory subscription rights. |
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Under Delaware law, shareholders have no preemptive rights to subscribe to additional issues of stock or to any security convertible into such stock unless, and except to the extent that, such rights are expressly provided for in the certificate of incorporation. |
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| Authority to Allot |
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Under German law, the management board may not allot shares, grant rights to subscribe for shares or to convert any security into shares, unless a shareholder resolution has been passed at the company’s shareholders’ meeting granting the management board such authority, subject to the approval of the supervisory board, in each case in accordance with the provisions of the German Stock Corporation Act. |
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Under Delaware law, if the corporation’s certificate of incorporation so provides, the board of directors has the power to authorize the issuance of stock. It may authorize capital stock to be issued for consideration consisting of cash, any tangible or intangible property or any benefit to the corporation or any combination thereof. It may determine the amount of such consideration by setting a minimum amount of consideration or approving a formula. In the absence of actual fraud in the transaction, the judgment of the directors as to the value of such consideration is conclusive. |
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Germany |
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Delaware |
| Voting Rights |
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Under German law, each share, except for statutory preferred non-voting shares (nicht stimmberechtigte Vorzugsaktien), entitles its holder to vote at the shareholders’ meeting and to participate with such number of votes with respect to one share which correspond to the quota of such share in the company’s share capital. While German law does not provide for a minimum attendance quorum for general meetings, the company’s articles of association may so provide. In general, resolutions adopted at a shareholders’ meeting may be passed by a simple majority of votes cast, unless a higher majority is required by law or under the company’s articles of association. |
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Delaware law provides that, unless otherwise provided in the certificate of incorporation, each shareholder is entitled to one vote for each share of capital stock held by such shareholder. |
| Shareholder Vote on Certain Transactions |
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Under German law, certain shareholders’ resolutions of fundamental importance require a majority of at least three-quarters of the share capital present or represented in the vote. Resolutions of fundamental importance include, in particular, capital increases with exclusion of subscription rights, capital decreases, the creation of authorized or conditional share capital, the dissolution of a company, a merger into or with another company, split-offs and split-ups, the conclusion of inter-company agreements (Unternehmensverträge), in particular domination agreements (Beherrschungsverträge) and profit and loss transfer agreements (Ergebnisabführungsverträge), and a change of the legal form of a company. |
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Generally, under Delaware law, unless the certificate
of incorporation provides for the vote of a larger portion of the stock, completion of a merger, consolidation, sale, lease or exchange
of all or substantially all of a corporation’s assets or dissolution requires:
·
the approval of the board of directors; and
·
approval by the vote of the holders of a majority of the outstanding stock or, if the certificate of incorporation provides for more or
less than one vote per share, a majority of the votes of the outstanding stock of a corporation entitled to vote on the matter. |
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| Liability of Directors and Officers |
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Under German law, any provision, whether contained
in the company’s articles of association or any contract or otherwise, that purports to exempt a management board or supervisory
board member from any liability that would otherwise result from any negligence, default, breach of duty or breach of trust in relation
to the company is void.
Under German law, members of both the management
board and members of the supervisory board are liable to the company, and in certain cases to third parties or shareholders, for any damage
caused to them due to a breach of such member’s duty of care. Apart from insolvency or special circumstances, only the company has
the right to claim damages from members of either board.
The company may waive claims for damages against
a negligent management board or supervisory board member only after the expiry of three years and with the approval of such waiver by
the shareholders’ meeting with a simple majority of the votes cast, unless shareholders who, in the aggregate, hold one-tenth or
more of the company’s share capital object to the waiver and have their objection formally recorded in the minutes of the shareholder
meeting by a German civil law notary. |
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Under Delaware law, a corporation’s certificate of incorporation
may include a provision eliminating or limiting the personal liability of a director to the corporation and its shareholders for damages
arising from a breach of fiduciary duty as a director. However, no provision can limit the liability of a director for:
● any
breach of the director’s duty of loyalty to the corporation or its shareholders;
● acts
or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
● intentional
or negligent payment of unlawful dividends or stock purchases or redemptions; or
● any
transaction from which the director derives an improper personal benefit. |
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Germany |
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Delaware |
| Standard of Conduct for Directors and Officers |
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Under German law, management board members and
supervisory board members must conduct their affairs with “the care and diligence of a prudent business person,” or a prudent
supervisory board member, as the case may be, and act, other than in restructuring proceedings, in the best interests of the company.
The scope of the fiduciary duties of management board members and supervisory board members is determined by German legislation and interpreted
by the German courts.
Statutory and fiduciary duties of members of the
management board to the company include, among others:
· to
act in accordance with the law, the company’s articles of association and the rules of procedure for the management board, if any;
● to
report to the supervisory board on a regular basis as well as on certain important occasions;
● to
exercise reasonable care, skill and diligence;
● to
maintain a proper accounting system;
● to
not compete, directly or indirectly, with the company without permission by the supervisory board; and
● if
the company is insolvent, to ensure that no further transactions are entered into on behalf of the company.
Members of the supervisory board owe substantially the same statutory
and fiduciary duties to the company as members of the management board. Additionally, their duties include:
● to
effectively supervise the company’s affairs and the management board;
● to
evaluate and issue a resolution on certain transactions which may only be carried out by the management board with the consent of the
supervisory board;
● to
approve the company’s financial statements;
● to
appoint the management board members and to represent the company in transactions between the company and members of the management board;
and
● to
approve service contracts between individual members of the management board and the company. |
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Delaware law does not contain specific provisions setting forth the
standard of conduct of a director. The scope of the fiduciary duties of directors is generally determined by the courts of the State of
Delaware. In general, directors have a duty to act without self-interest, on a well-informed basis and in a manner they reasonably believe
to be in the best interest of the shareholders.
Directors of a Delaware corporation owe fiduciary duties of care and
loyalty to the corporation and to its shareholders. The duty of care generally requires that a director act in good faith, with the care
that an ordinarily prudent person would exercise under similar circumstances. Under this duty, a director must inform himself or herself
of all material information reasonably available regarding a significant transaction.
The duty of loyalty requires that a director act in a manner he or
she reasonably believes to be in the best interests of the corporation. He or she must not use his or her corporate position for personal
gain or advantage. In general, but subject to certain exceptions, actions of a director are presumed to have been made on an informed
basis, in good faith and in the honest belief that the action taken was in the best interest of the corporation. However, this presumption
may be rebutted by evidence of a breach of one of the fiduciary duties. Delaware courts have also imposed a heightened standard of conduct
upon directors of a Delaware corporation who take any action designed to defeat a threatened change in control of the corporation.
In addition, under Delaware law, when the board of directors of a Delaware
corporation approves the sale or breakup of a corporation, the board of directors may, in certain circumstances, have a duty to obtain
the highest value reasonably available to the shareholders. |
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Germany |
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Delaware |
| Shareholder Suits |
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Under German law, generally, the company, rather than its shareholders,
is the proper claimant in an action with respect to a wrong committed against the company or an irregularity in the company’s internal
management or supervision. Accordingly, such claims may only be raised by the company represented by its management board, or, in the
case of a wrong committed by a member of the management board, by the supervisory board.
Additionally, pursuant to German case law, the
supervisory board is generally obliged to pursue the company’s claims against the management board, unless in exceptional circumstances
it is in the best interest of the company not to pursue such claims.
The management board, or, if a claim is made against
a member of the management board, the supervisory board, is obliged to pursue the company’s claims against the relevant individuals
if so resolved by the shareholders’ meeting with a simple majority of votes cast. By way of the admissibility procedure (Klagezulassungsverfahren),
shareholders can request that a representative pursues the claim on behalf of the company.
If the company is unable to fulfill its obligations
vis-à-vis third parties, the company’s creditors may pursue the company’s damage claims against members of the management
board for certain wrongdoings.
Under certain circumstances, shareholders can
bring damage claims of the company against members of its management board on the company’s behalf. In order to bring such a claim,
the claimant alone or together with other shareholders needs to hold shares representing at least 1% or a participation of €100,000
in the company’s share capital. Additionally, the claimant must have its claim approved in special procedures. |
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Under Delaware law, a shareholder may initiate a derivative action
to enforce a right of a corporation if the corporation fails to enforce the right itself. The complaint must:
● state
that the plaintiff was a shareholder at the time of the transaction with respect to which the plaintiff complains or that the plaintiff’s
shares thereafter devolved on the plaintiff by operation of law; and
● (i)
allege with particularity the efforts made by the plaintiff to obtain the action the plaintiff desires from the directors and the reasons
for the plaintiff’s failure to obtain the action or (ii) state the reasons for not making the effort.
Additionally, the plaintiff must remain a shareholder through the duration
of the derivative suit. The action will not be dismissed or compromised without the approval of the Delaware Court of Chancery. |
German Corporate Governance Code
The German Corporate Governance
Code, or Corporate Governance Code, was originally published by the German Ministry of Justice (Bundesministerium der Justiz) in
2002 and was most recently amended on April 28, 2022 and published in its revised version in the German Federal Gazette (Bundesanzeiger)
on June 27, 2022. The Corporate Governance Code contains general principles (Grundsätze) of corporate law – for informational
purposes only – as well as recommendations (Empfehlungen) and suggestions (Anregungen) relating to the management
and supervision of German companies that are listed on a stock exchange. It follows internationally and nationally recognized standards
for good and responsible corporate governance. The purpose of the Corporate Governance Code is to make the German system of corporate
governance transparent for investors. The Corporate Governance Code includes corporate governance principles and makes recommendations
and suggestions with respect to shareholders and general shareholders’ meetings, the management and supervisory boards, transparency,
accounting policies, and auditing.
There is no obligation to
comply with the recommendations or suggestions of the Corporate Governance Code. However, the German Stock Corporation Act (Aktiengesetz)
does require that the management board and supervisory board of a German listed company issue an annual declaration that either (i) states
that the company has complied with the recommendations of the Corporate Governance Code or (ii) lists the recommendations that the company
has not complied with and explains its reasons for deviating from the recommendations of the Corporate Governance Code (Entsprechenserklärung).
In addition, a listed company is also required to state in this annual declaration whether it intends to comply with the recommendations
or list the recommendations it does not plan to comply with in the future. The current declaration needs to be published on the company’s
website. In addition, the Corporate Governance Code recommends that previous compliance declarations remain on the website for five years.
If the company changes its policy on certain recommendations between such annual declarations, it must disclose this fact and explain
its reasons for deviating from the recommendations. Noncompliance with suggestions contained in the Corporate Governance Code need not
be disclosed.
Following our listing on the
New York Stock Exchange in April 2019, the Corporate Governance Code applies to us, and we are required to issue the annual declarations
described above. We issued and published our most recent annual compliance declaration on December 19, 2023. You can find our annual compliance
declarations on our website at investor.jumia.com under Corporate Governance. This website address is included in this annual report as
an inactive textual reference only.
Listing
Our ADSs are listed on NYSE
under the symbol “JMIA.”
14
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