STATUTES and Memorandum of Association of
FoodPLUS GmbH
§ 1 Name and domicile The name of the Company shall be: FoodPLUS GmbH The Company shall be domiciled in Cologne. § 2 Object of the Company The object of the Company shall encompass the coordination, promotion and dissemination of technical standards for producing, processing and marketing foodstuffs and developing and implementing control, monitoring and sanction mechanisms for the purpose of safeguarding the observance of these standards at all levels in the supply chain on a world-wide basis. The Company shall be entitled to conduct all business transactions and perform all legal acts which serve the purpose of achieving the corporate objectives or appear suitable for promoting the Company. It may acquire the same kind of or similar companies, participate in and assume the responsibility for representing and managing such companies, and establish branches in Germany and abroad. § 3 Subscribed capital The Company's subscribed capital amounts to EUR 50,000.00 (fifty thousand euros). EHI-Verwaltungsgesellschaft mbH, domiciled in Cologne - Commercial Register B 0234 AG Cologne -, accepted a shareholding of EUR 50,000.00 in this subscribed capital. The capital contribution has paid in cash in full. § 4 The Company's organs The Company shall have the following organs: (1) the Shareholders' Meeting (2) the Steering Committee (3) the Group of Sponsors (internally called "Retailer and Supplier Members") (4) the Executive Management § 5 Shareholders' Meeting (1) The Company's supreme organ shall be the Shareholders' Meeting. This Meeting shall rule on all fundamental issues. The obligations of the Shareholders' Meeting shall particularly encompass: a. the appointment and replacement of the Executive Management b. the adoption of the Rules of Procedure c. the receipt of the annual report and the ratification of the actions of the Executive Management d. the revision of the Memorandum of Association. (2) Shareholders' Meetings shall be convened by the Executive Management, the shareholders or the Steering Committee. (3) Shareholders' Meetings shall be held at least once a year. (4) Shareholders' Meetings shall be convened by means of a registered letter to all shareholders stating the location, date, time and agenda and involving a period of notice of at least three weeks in the case of Ordinary Shareholders' Meetings and at least two weeks in the case of Extraordinary Shareholders' Meetings; in case of urgency, Shareholders' Meetings may also be convened at suitably shorter notice. (5) The shareholders shall chair Shareholders' Meetings. (6) The Executive Management and the Chairman of the Steering Committee shall be entitled and obliged to attend Shareholders' Meetings. The members of the Steering Committee shall only be entitled to attend a Shareholders' Meeting in the event of their having requested that such Meeting should be convened. (7) The course of Shareholders' Meetings shall be minuted. Such minutes shall state the location and date of a Meeting, the participants, the items on the agenda, the main contents of the negotiations and the resolutions which were adopted by the shareholders. The minutes shall be signed by the shareholders. A copy of the minutes shall be sent to all the shareholders. § 6 Steering Committee (1) The Company shall have a Steering Committee, which, in close collaboration with the Company's Executive Management, shall control and monitor the observance of the resolutions, which are adopted by Shareholders' Meetings. . (2) The Steering Committee may organise itself into separate committees for individual market segments or product scopes and create technical and standards committees which shall advise it on special technical issues, particularly with regard to decisions relating to standards and technical procedures. (3) The Steering Committee shall be formed from among the ranks of sponsors. It shall comprise equal number of seats from food retailers/food service from the producers', producers' organizations' and import and export sectors, each of which shall be elected by a simple majority by the representatives of their respective constituency among the Group of Sponsors for a term of two years. Re-election is possible. (4) The members of the Steering Committee select a Chairman who is put forward for appointment by the shareholders. (5) Every member shall have one vote. The Chairman shall have two votes. Decisions shall be adopted by a simple majority of present members. Transfer of votes from an absent member to a present member is possible, but must be in writing. (6) Steering Committee meetings shall be convened by the Chairman or their Deputy at least two weeks in advance, in which connection the details of the agenda shall be stated. (7) Meetings of the Steering Committee shall be minuted and any resolutions which are adopted in writing, by telex or by telephone shall be recorded. Such minutes and records shall be signed by the Chairman and a copy of the same sent to all the members of the Steering Committee and to the Shareholders. (8) The Steering Committee may request the shareholders to convene an Extraordinary Shareholders' Meeting. (9) Shareholders shall be entitled to attend the meetings of the Steering Committee. (10) The members of the Steering Committee shall act on an honorary basis and shall not be subject to prevailing contract legislation. § 7 Group of Sponsors (1) The Company shall have a Group of Sponsors comprising representatives from the entire supply chain. (2) Membership in the group of Sponsors shall be open to - retail, food service, and wholesale companies, importers and exporters, producers, Producer organisations, food manufacturers and trade associations of all above as ordinary members with a right to vote - other persons, companies and institutes (e.g. industrial) as associate sponsoring members without voting rights. (3) The members of the Group of Sponsors shall sign the EUREPGAP Terms of Reference and sponsor the Company's activities by means of an annual membership fee. (4) The Executive Management shall decide the amount of such fee in concert with the Shareholders and Steering Committee. (5) The Chairman of the Steering Committee shall rule upon admittance to the Group of Sponsors. Sponsors shall have an active right to make proposals for standards and technical procedures and at the discretion of the Executive Management be able to participate on technical working groups . (6) Members in the Group of Sponsors may terminate their membership by registered letter not later than 3 month before December 31st of each year, effective for the following year. (7) The Steering Committee may terminate membership in the group of sponsors. In the case of non-payment of the annual membership fee the Executive Management may terminate the membership without reference to the Steering Committee. (8) By means of a shareholders' resolution other Groups of Sponsors, without connection to EUREPGAP matters, could be established. § 8 Executive Management (1) The Company shall have one or more Executive Managers. In the event that only one Executive Manager should be appointed such Executive Manager shall represent the company alone. Should several Executive Managers be appointed the Company shall be represented jointly by two Executive Managers or by one Executive Manager in conjunction with a Company Officer. (2) By means of a shareholders' resolution the Executive Managers may be authorized to represent the Company alone and, on behalf of the Company, to conduct legal transactions with themselves in their own name or as representatives of a third party (exemption from the restrictions contained in § 181 German Civil Code), even in the event of additional Executive Managers being appointed. (3) The Executive Managers shall be appointed and removed by the Shareholders' Meeting. (4) The employment relationship of Executive Managers shall be regulated by the Shareholders' Meeting. (5) The rights and obligations of the Executive Management shall be stipulated in the Rules of Procedure. (6) The Executive Management shall undertake to conduct the Company's business transactions in accordance with the law, the Memorandum of Association, the Rules of Procedure and the resolutions, which are adopted by the Shareholders' Meeting and the Steering Committee. § 9 Business year The Company's business year shall be the calendar year. § 10 Annual accounts, status report, profit appropriation (1) During the first quarter of the following year the Executive Management shall submit the Company's annual accounts in conjunction with a profit appropriation proposal consistent with the companies status of a not for profit organisation and the requirement to operate a reserve for contingency . (2) The shareholders, after considering recommendations of the Steering Committee, shall decide on the approval of the annual accounts, the ratification of the actions of the Executive Management and the appropriation of the profit. § 11 Disposal over shareholdings, merger of shares (1) No disposal over a whole shareholding or parts of a shareholding or over individual rights arising from the status of shareholder or no adding of new shareholders shall be valid without the written consent of all the shareholders and the Steering Committee. (2) Several fully paid-in shareholdings may be merged into one shareholding. Such merger shall require a shareholders' resolution and the consent of the bearers of the shareholdings which are merged. (3) In the event of the departure of a shareholder, such shareholder shall, at the option of the Company, undertake to transfer their shareholding in whole or in part to one or more shareholders in proportion to their shareholdings or to a third party to be nominated by the Company or to the Company itself, or to tolerate the confiscation of their shareholding. This shall be decided by the Shareholders' Meeting by a simple majority of the votes cast and with the written consent of the Steering Committee. The shareholder concerned shall not be entitled to participate in such vote. § 12 Duration The Company shall exist for an indefinite period of time. § 13 Dissolution and liquidation (1) The liquidator(s) shall be the Executive Manager(s). Should only one liquidator exist such liquidator shall represent the company alone. In the event of several liquidators being appointed the Company shall be represented jointly by two such liquidators. (2) By means of a shareholders' resolution the liquidators may be authorized to conduct, on behalf of the Company, legal transactions with themselves in their own name or as representatives of a third party (exemption from the restrictions contained in § 181 German Civil Code). (3) The realization surplus shall be distributed among the shareholders in proportion to their shareholdings. § 14 Announcements (1) The Company's announcements shall appear in the Federal Official Gazette for the Federal Republic of Germany. (2) FoodPLUS GmbH shall bear the inclusion and announcement costs. (3) The committees shall hold their meetings in English. § 15 Safeguarding clause (1) Insofar as notarization is not prescribed by the law, no agreements having a bearing on the shareholder relationship which are concluded by the shareholders with each other or the Company shall be valid unless they are in writing. Exemption from the written form by means of a verbal agreement shall be invalid. (2) In the event that any of the individual provisions which are contained in this Memorandum of Association should be invalid or contain loopholes this shall have no bearing upon the validity of the remaining provisions. In lieu of any such invalid provision the shareholders shall agree a valid provision which corresponds to the aim and object of the invalid provision in question. In the event of loopholes the shareholders shall agree a provision which corresponds to that which, in accordance with the aim and object of this Memorandum of Association, would reasonably have been agreed had consideration been afforded to this issue at the outset. (3) It should additionally be noted that, insofar as this Memorandum of Association does not stipulate anything to the contrary, the provisions of the Limited Liability Companies Act shall apply. § 16 FoodPLUS representation at EHI Member Assembly and Supervisory Board (1) FoodPLUS shall acquire Membership voting rights at EHI-EuroHandelsinsitut e.V. at a rate of 20 per cent of annual Retail membership fees received by FoodPLUS. (2) The number of votes of FoodPLUS in the EHI-EuroHandelsinsitut e.V. member assembly will be appropriate to the annual payment of membership fees as in (1) and will be carried out by the Chairman of the Steering Committee. The Executive Management can substitute the Chairman. (3) All Steering Committee members will be invited to attend and speak in member assemblies of EHI-EuroHandelsinsitut e.V., when issues are dealt with that directly relate to FoodPLUS. (4) The Chairman of the Steering Committee shall be proposed for a seat on the Supervisory Board (Verwaltungsrat) of EHI-EuroHandelsinsitut e.V. The Executive Management can substitute the Chairman.