Articles of Association of UNIWHEELS AG

Transcription

1 Articles of Association of UNIWHEELS AG [English translation for information purposes only] I. General Provisions Clause 1 Company Name, Seat, Fiscal Year and Term (1) The Company is a German stock corporation with its company name UNIWHEELS AG. (2) The Company shall have its registered address in Bad Dürkheim, Germany. (3) The fiscal year shall be the calendar year. (4) The duration of the Company shall be indefinite. Clause 2 Object of Business (1) The object of business is the acquisition, holding, administering, managing and disposal of participations in companies, in particular in such companies that operate in the area of development, production and distribution of alloy wheels and complete wheels and other components for automobiles or in subcategories of this area; furthermore, the objects of business is the acquisition, renting out, leasing and disposal of real property. (2) The Company shall be entitled to enter into all transactions and take all measures that are related to the object of business or that are suited to directly or indirectly to serve such purpose. To this end, the Company may, in particular, set up and close branch offices in Germany and abroad as well as incorporate, acquire, dispose of or participate in subsidiaries and other undertakings. It may also take on and carry out individual or all functions, in particular, group management and administrative functions, but also the development, production and distribution in relation to the activities and products referred to in para. (1). Clause 3 Announcements and Information (1) The Company s announcements shall be made by way of publication in the German Federal Gazette unless required otherwise by statutory law. (2) Within the limits of what is permitted under statutory law, the Company is entitled to provide information to its shareholders by way of remote data transmission. II. Share Capital and Shares

2 Clause 4 Amount and Division of the Share Capital (1) The Company s share capital amounts to EUR 12,400,000 (in words: twelve million four hundred thousand euros). It is divided into 12,400,000 (in words: twelve million four hundred thousand) no-par-value shares without nominal value. (2) The share capital of EUR 10,000,000 was contributed by way of change of legal form pursuant to Sec. 190 et seqq. German Reorganization Act from previous UNIWHEELS Holding (Germany) GmbH with its seat in Bad Dürkheim, Germany, registered with the commercial register of the local court of Ludwigshafen am Rhein, Germany, under register number HRB 60985, into UNIWHEELS AG. (3) In the period until April 24, 2020 and subject to approval of the supervisory board, the management board shall be authorized to increase the Company s share capital once or several times up to a total of EUR 6,200,000 by issuing new no-par-value shares in exchange for contributions in cash or in kind pursuant to Sec. 202 et seqq. German Stock Corporation Act (Authorized Capital 2015). The authorization may be exercised in relation to partial amounts. The shares may also be subscribed for a bank or a banking syndicate, provided, however, they undertake to offer the shares to the shareholders for subscription. Further, the management board shall, subject to approval of the supervisory board, be authorized to exclude the shareholders subscription right a) in the event of a capital increase in exchange for cash contributions in order to avoid any fractional amounts arising when determining the subscription ratio; b) to the extent necessary in order to grant a subscription right to new shares to holders or creditors of warrant/convertible bonds issued by the Company to the extent they would be entitled to new shares upon exercising their warrant/convertible bonds and/or upon fulfilment of their obligations under the warrant/convertible bonds; c) in the event of a capital increase in exchange for cash contributions by a total of up to 10% of the share capital, in order to implement strategic alliances with other domestic and/or foreign companies; or d) if there is a stock-market price for the shares of the Company and the issue price of the new shares is not significantly below the market price, and if the issued shares for which the subscription right has been excluded pursuant to Sec. 203(1), Sec. 186 para. (3) sent. 4 German Stock Corporation Act do not exceed 10% of the share capital in total neither at the date of effectiveness this authorization nor at the date when it is made use thereof. Shares that, during the duration of this authorization until the time of its use, have in direct or analogous application of Sec. 186 para. (3) sent. 4 German Stock Corporation Act been disposed of or issued or are to be issued, respectively, shall be taken into account for the purpose of determining the limit. The management board shall decide, with the approval of the supervisory board, on the further details of the rights relating to the shares and the terms and conditions of the share issue. The supervisory board shall be authorized pursuant to clause 14 to amend the wording of these articles of association in accordance with the respective use of the Authorized Capital Clause 5 Shares (1) The Company s shares shall be issued in the bearer s name (bearer shares). 2

3 (2) Where, in the context of an increase of the Company s capital, the resolution to increase capital does not specify whether the new shares shall be issued in bearer or in registered form, they shall be issued in the bearer s name. (3) Any right of the shareholders to have their shares certified shall be excluded unless certification is mandatory under the rules of a stock exchange to which the shares are admitted. Likewise, the shareholder shall have no claim to the issue of interim certificates, profit-participation certificates and renewal certificates. (4) The Company shall be authorized to issue certificates for individual shares (individual certificates) or several shares (collective certificates) as well as interim certificates, profitparticipation certificates and renewal certificates. The management board may decide, with the approval of the supervisory board and within the limits of what is permitted under statutory law, on the form and content of the documents to be issued. The bodies of the Company are: a) the management board; b) the supervisory board; and c) the shareholders meeting. Clause 6 Bodies III. Management Board Clause 7 Composition, Responsibilities and Rules of Procedure of the Management Board (1) The management board shall consist of one or more persons. The number of management board members shall be determined by the supervisory board. The determination of the number of management board members, the appointment and dismissal of management board members, the entering into, amendment and termination of their employment contracts as well as the appointment, if any, of one of the management board members as chairperson/spokesperson of the management board or as deputy chairperson/ spokesperson shall be made by the supervisory board. The supervisory board shall also allocate the fields of responsibility among the management board members. (2) Management board members shall be appointed by the supervisory board for a maximum term of five years. Management board members may be reappointed once or several times. (3) The management board has the sole responsibility for the conduct of the Company s business. (4) The supervisory board may adopt rules of procedure for the management board. Clause 8 Representation (1) The Company shall be represented by two management board members or by one management board member acting jointly with an authorized officer. (2) The supervisory board may grant all or individual management board members individual power of representation and/or exempt all or individual management board members from 3

4 the restrictions of Sec. 181 alt. 2 German Civil Code (granting of the right to multiple representation). Sec. 112 German Stock Corporation Act shall remain unaffected. IV. Supervisory Board Clause 9 Composition of the Supervisory Board (1) The supervisory board consists of three supervisory board members of which at least one member shall be independent and have expertise on the fields of financial/accounting or auditing. The supervisory board members are elected by the shareholders meeting, unless statutory law or the articles of association provide for otherwise. (2) UNIWHEELS Holding (Malta) Limited with its registered address in Sliema SLM 1641, Malta, registered with the commercial register of Malta under C 30698, shall be entitled to appoint one third of the supervisory board members to the supervisory board as long as it participates in the Company as a shareholder. (3) The supervisory board members to be elected by the shareholders meeting are elected by a simple majority of the votes cast. (4) The term of office of the supervisory board members under paras. (2) and (3) above shall commence with their appointment and, unless otherwise specified at the time of their appointment, shall end with the closure of the shareholders meeting that resolves upon discharge with respect to the fourth fiscal year following the start of the term of office; the fiscal year in which the term of office commences shall not be included in the above calculation. Supervisory board members may be reappointed once or several times. (5) For supervisory board members elected by the shareholders meeting, substitute members may be elected who replace any supervisory board members leaving office prematurely; the order of replacement shall be determined at the time of election of the substitute members. The substitute member shall remain in office for the remainder of the term of office of the leaving supervisory board member. (6) A supervisory board member elected at the shareholders meeting may be removed from office prior to the end of his/her term of office by the shareholders meeting without any reasons having to be cited. The resolution by the shareholders meeting concerning the removal from office shall require a simple majority of the votes cast. The same shall apply to substitute members. (7) Each supervisory board member and each substitute member may resign from office, even in the absence of an important reason, by addressing a written explanatory statement to the chairperson of the supervisory board within a notice period of one year. The chairperson of the supervisory board shall declare any resignation from office to the management board. Clause 10 Chairperson of the Supervisory Board and Chairperson s Deputy (1) At the beginning of its term of office, the supervisory board shall elect a chairperson and at least one deputy among its members under the chairmanship of the oldest member; such election shall take place at a meeting that is to be held subsequently to the shareholders meeting and that does not need to be specially convened. (2) If, during the term of office, the chairperson of the supervisory board or a deputy resigns 4

5 from office, then the supervisory board shall immediately hold a new election to cover the remaining term of office of the leaving board member. (3) In the event that the chairperson of the supervisory board is indisposed, his/her rights and obligations shall unless expressly provided otherwise be exercised by the deputy who is next in line in terms of or chronology, and who is not indisposed. (4) The chairperson of the supervisory board or, in the event of his/her being indisposed, the deputy who is next in line in terms of chronology, and who is not indisposed, shall be entitled to make and receive declarations of intent on behalf of the supervisory board to the extent permitted by statutory law. Clause 11 Quorum, Taking of Resolutions and Committees (1) Meetings of the supervisory board shall be convened by the chairperson of the supervisory board observing at least 14 days notice period and stating the agenda items in writing or in text form (Sec. 126b German Civil Code) by post or by fax, or other electronic means of communication. The day on which the notice is sent out and the day of the meeting shall not be taken into account for the purpose of calculating the notice period. In urgent cases, the chairperson of the supervisory board may shorten the notice period and convene a meeting verbally or by telephone. This shall not affect Sec. 110 para. (1) German Stock Corporation Act. (2) As a general rule, resolutions of the supervisory board shall be adopted at meetings. The meetings shall take place at least twice per half calendar year at the registered address of the Company or, if necessary, at another venue to be announced in the invitation. (3) The meetings shall be chaired by the chairperson of the supervisory board. The chairperson shall determine the course of the meeting, the order in which the agenda items are discussed as well as the order, procedure and form of voting, and shall ascertain the voting results. (4) Supervisory board members who are absent may participate in the meeting including the taking of any resolutions by way of having another supervisory board member submit their written votes. Meetings of the supervisory board may also be held entirely by way of video or telephone conference or in the form of a meeting which is joined by individual supervisory board members remotely so that either the entire procedure of taking resolutions takes place or individual votes are cast by way of video or conference call. A supervisory board member shall be deemed to take part in the vote within the meaning of this clause even if he/she abstains from voting. (5) Resolutions on agenda items that have not been announced in due time may only be taken if all supervisory board members present or represented consent to the taking of a resolution on such agenda items. In such a case, absent members shall be given the opportunity to object to the taking of the resolution within a reasonable time limit which is to be determined by the chairperson of the supervisory board. The resolution shall only become effective when no objection has been raised by any absent member within the given period of time. (6) Upon instruction by the chairperson of the supervisory board, resolutions may be taken outside of meetings by way of votes transmitted in writing, by telephone or in text form (Sec. 126b German Civil Code) or votes cast by post or by fax, or other electronic means of communication, as well as by way of voting procedures combined accordingly, 5

6 provided that no supervisory board member immediately objects to such procedure. A supervisory board member shall be deemed to participate in the voting within the meaning of this clause even if he/she abstains from voting. The taking of resolutions by the supervisory board regarding the approval of the annual financial statements and/or the consolidated accounts shall be taken in a meeting. (7) Resolutions may also be taken by way of combined resolution, i.e., with one part of the votes being cast in the meeting and another part in writing, by telephone or in textual form (Sec. 126b German Civil Code) by post or by fax, or other electronic means of communication. In that context, the absent supervisory board members may cast their votes at the same time as the meeting or afterwards within a reasonable time limit set by the chairperson of the supervisory board. Supervisory board members who cast their vote outside of the respective meeting shall be informed without undue delay about the resolutions taken in their absence. (8) The supervisory board shall have a quorum if invitations have been sent to all members at their last known address and if at least half of the members that the supervisory board is required to consist of according to the articles of association, in any case at least three supervisory board members, participate in the taking of the resolution. (9) Resolutions of the supervisory board shall be taken by a simple majority of votes cast, unless required otherwise by mandatory statutory law, the articles of association or the rules of procedure. Each supervisory board member shall have one vote. If a vote results in a tie, then the chairperson of the supervisory board or his/her deputy, respectively, shall have the casting vote. (10) Minutes of the discussions and resolutions of the supervisory board shall be recorded which shall be signed by the chairperson of the supervisory board. The minutes shall state the place and date of the meeting or resolution, the participants, the agenda items, the main content of the discussions and the resolutions taken by the supervisory board. The minutes shall be submitted to all supervisory board members. (11) The supervisory board may, within the limits of statutory provisions and from among its members, establish committees and specify their duties and powers in the rules of procedure. The committees of the supervisory board may, to the extent permitted by statutory law, also be granted authorization to the taking of resolutions by the supervisory board. Clause 12 Responsibilities, Rules of Procedure, Information and Transactions Requiring Approval (1) The supervisory board supervises the operation of the business by the management board. The supervisory board shall not be entitled to operate the Company s business. (2) The supervisory board shall adopt rules of procedure for the supervisory board. (3) The management board shall report to the supervisory board on an ongoing basis to the extent required by statutory law, the articles of association and the rules of procedure. The supervisory board may request any information from the management board that the supervisory board needs in order to exercise its duty of control. The supervisory board may carry out all investigations necessary for the performance of its duties or arrange for such investigations to be carried out. (4) The supervisory board shall direct that certain types of transactions by the management board shall require the approval of the supervisory board. 6

7 (5) The following legal transactions require prior approval by the supervisory board: Entering into, amendment or termination of legal transactions between the Company or any of its Subsidiaries, on the one hand, and a shareholder of the Company or a person who has a close relationship with a shareholder within the meaning of Sec. 138 German Insolvency Code or Sec. 1 para. (2) German Foreign Tax Act (excluding UNIWHEELS Group companies), on the other hand, or a board member or an authorized officer of the Company or any of its Affiliated Companies, or a person who has a close relationship with such board member or authorized officer within the meaning of Sec. 138 German Insolvency Code or Sec. 1 para. (2) German Foreign Tax Act, on the other hand, excluding (i) legal transactions within the UNIWHEELS Group as well as (ii) legal transactions between the Company and its management board members, for which the supervisory board is already responsible pursuant to Sec. 112 German Stock Corporation Act, excluding legal transactions (i) with annual payments by UNIWHEELS Group companies with a value of no more than EUR 100,000 in the individual case or (ii) in the context of the ordinary course of business.»affiliated Companies«shall mean those within the meaning of Sec. 15 Stock Corporation Act.»Subsidiaries«shall mean those companies that are subsidiaries of UNIWHEELS AG within the meaning of Sec. 290 German Commercial Code.»UNIWHEELS Group«shall mean the Company and its Subsidiaries. The resolution by the supervisory board approving any of the aforementioned legal transactions requires a majority of at least 70% of all members of the supervisory board. Clause 13 Remuneration (1) Supervisory board members may be granted remuneration for their activities by the shareholders meeting. (2) In addition, supervisory board members shall be reimbursed for all expenses as well as for any value-added tax chargeable on any remuneration approved and any expenses reimbursed. (3) Supervisory board members who have served on the supervisory board only for part of a fiscal year shall receive a reduced remuneration in proportion to the time they served on the supervisory board. Clause 14 Authorization to Editorial Amendments to the Articles of Association The supervisory board shall be entitled to adopt editorial amendments and additions to the articles of association. V. Shareholders meeting Clause 15 Place, Time and Convening of the Shareholders meeting 7

8 (1) The shareholders meeting shall be held at the Company s seat, at the location of a German stock exchange, or in a German city with more than 150,000 inhabitants. (2) The shareholders meeting which resolves upon the distribution of profits, the discharge of the members of the management board and the supervisory board, the appointment of the auditor and in the cases provided for by statutory law on the adoption of the annual financial statements or the approval of the consolidated accounts (annual shareholders meeting) shall take place within eight months after the end of each fiscal year. (3) The shareholders meeting shall be convened by the management board or in the cases provided for by statutory law by the supervisory board. (4) The shareholders meeting shall be convened by way of publication in the German Federal Gazette. The agenda must be published together with the notice convening the meeting. (5) The meeting shall be convened and the agenda be stated at least 30 days before the day by the end of which the shareholders shall register. The day on which the meeting is convened shall not be taken into account. Clause 16 Participation in the Shareholders meeting (1) Only those shareholders shall be entitled to participate in the shareholders meeting and to exercise their voting right who have registered for the shareholders meeting in text form in accordance with the following provisions. Registration for the shareholders meeting shall be made in text form (Sec. 126b German Civil Code) in German or English language at the address specified in the notice convening the meeting, and must be received by the Company together with the proof of shareholding (if required pursuant to para. 2 below) at the address specified in the notice convening the meeting no later than six days prior to the shareholders meeting, not taking into account the day of receipt of the registration. The notice convening the meeting may provide for a shorter notice period to be specified as a number of days. (2) Shareholders with bearer shares, or anyone else acting for such shareholder, have to provide a separate proof of shareholding in text form and in German or English language from a domestic or foreign securities depository institution to prove his/her entitlement to participate in the shareholders meeting together with his/her registration for the shareholders meeting. Securities depository institutions within the meaning of the foregoing sentence include, without limitation, domestic or foreign central depositories for securities. The proof of shareholding must relate to the beginning of the twenty-first day before the shareholders meeting at 00:00 hours (time of the Company s registered office). The Company shall be entitled to request further suitable evidence if the correctness or the authenticity of the proof of shareholding is in doubt. If such proof is not provided or is not provided in an appropriate manner, the Company shall be entitled to reject the shareholder. Clause 17 Chair of the Shareholders Meeting as well as the Shareholders Right to Ask Questions and to Make Statements (1) The chairperson of the supervisory board shall chair the shareholders meeting; in case he/she is unable to chair the meeting, his/her deputy or another member of the supervisory board nominated by the chairperson of the supervisory board shall chair the shareholders meeting. If no member of the supervisory board takes over the chair, then the chairperson 8

9 shall be elected by the shareholders meeting, with such election being chaired by the chairperson of the management board. (2) The chairperson shall chair the meeting and determine the order in which the agenda items shall be dealt with as well as the form of the vote. (3) The chairperson may permit the partial or complete recording and transmission of the shareholders meeting in sound and image by way of electronic and other media. The broadcast may also occur in a form to which the public has unlimited access. (4) The chairperson may impose a reasonable time limit on the shareholders right to ask questions and to make statements; in particular, he/she shall be authorized to reasonably determine at the beginning of the shareholders meeting or during its course a time frame with respect to the course of the meeting, the discussion on individual agenda items as well as individual statements or questions. Clause 18 Voting Right (1) Each no-par-value share shall grant one vote. (2) The voting right commences upon complete bringing in of the contribution. (3) The right to vote may be exercised by proxy. Powers of attorney to exercise the right to vote, their revocation and proof of authorization vis-à-vis the Company shall require text form (Sec. 126b German Civil Code) (outside the scope of application of Sec. 135 German Stock Corporation Act). Such proof may be provided by way of electronic communication to an address stipulated for this purpose in the notice convening the meeting. (4) The management board may provide that the shareholders are entitled to participate without being present at the location of the shareholders meeting and without a proxy and may exercise all or some of their rights in whole or in part by way of electronic communication (online participation). (5) The management board may provide that shareholders are entitled to cast their votes in writing or by way of electronic communication even without participating in the meeting (absentee ballot). Clause 19 Taking of Resolutions Resolutions of the shareholders meeting shall be taken with the majority of valid votes cast and, to the extent that a majority of capital is required, with a simple majority of the share capital represented, to the extent that this is permitted by statutory law and that a greater majority is not required under mandatory statutory law or these articles of association. VI. Financial Reporting and Distribution of Profits Clause 20 Annual Financial Statements (1) Within time limits under statutory law, the management board shall prepare the annual financial statements (balance sheet as well as profit and loss account and notes to the 9

10 financial statements) and the management report as well as the consolidated accounts and the group management report and submit these to the supervisory board without undue delay. At the same time, the management board shall present to the supervisory board a proposal for the distribution of profits. (2) The supervisory board shall, with the involvement of the auditor, audit the annual financial statements, the management report and the proposal for the distribution of profits as well as the consolidated accounts and the group management report and submit a written report on the result of its audit and of the audit by the auditors to the shareholders meeting. It shall submit its report to the management board within one month from receipt of the documents from the management board. At the end of the report, the supervisory board shall state whether it approves the annual financial statements and consolidated accounts. If the supervisory board approves the annual financial statements following the audit, they shall be deemed adopted. (3) Immediately after submission of the report to the management board, the annual shareholders meeting shall be convened. Clause 21 Distribution of Profits (1) The shareholders meeting shall resolve upon on the distribution of profits as they are shown in the adopted annual financial statements. (2) The balance-sheet profits shall be distributed to the shareholders in accordance with their shares in the share capital, provided the shareholders meeting does not resolve upon any other use. The shareholders meeting may resolve upon a use other than provided for in Sec. 58 para. (3) sent. 1 German Stock Corporation Act. It may also resolve upon a distribution in kind, Sec. 58 para. (5) German Stock Corporation Act. (3) The distribution of profits may deviate from Sec. 60 para. (2) German Stock Corporation Act if provided for in a resolution to increase the share capital of the Company. (4) After the end of a fiscal year, the management board may within the limits of Sec. 59 German Stock Corporation Act pay to the shareholders an advance on the anticipated balance-sheet profits. (5) The management board and supervisory board shall be authorized to contribute a portion of the annual net profit that remains after contribution to the statutory reserves and redemption of any loss carried forward into the other reserves, even if the contributed portion exceeds half of the annual net profits. However, no contribution to the other reserves shall be permitted if the other reserves exceed half of the share capital, or to the extent that they would exceed half of the share capital following such contribution. VI. Final provisions Clause 22 Incorporation and Conversion Costs (1) The original articles of association of UNIWHEELS Holding (Germany) GmbH contained the following provision: The costs incurred in connection with the incorporation of UNIWHEELS Holding (Germany) GmbH (notary fees, commercial-register fees and remuneration paid to third-parties for the incorporation) up to EUR 1,500 shall be borne by the Company. 10

11 (2) The costs incurred in connection with the change of legal form of UNIWHEELS Holding (Germany) GmbH and the incorporation of the Company, in particular notary fees, consultancy fees, fees in connection with the formation audit, court costs and publication costs, shall be borne by the Company up to a maximum amount of EUR Clause 23 Place of Jurisdiction Unless otherwise provided for by mandatory statutory law, the place of jurisdiction for all disputes between the Company and its shareholders that are based on the corporate relationship shall be the registered seat of the Company. 11