As filed with the Securities and Exchange Commission on August 15, 2023
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| Registration No. 333-_____ |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
JUMIA TECHNOLOGIES AG
(Exact Name of Registrant as Specified in its Charter)
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Not Applicable (Translation of Registrant’s Name into English) |
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| The Federal Republic of Germany | 5961 | Not Applicable |
(State or other Jurisdiction of
Incorporation or Organization) | (Primary Standard Industrial
Classification Code Number) | (I.R.S. Employer
Identification Number) |
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| Skalitzer Straße 104 10997 Berlin Federal Republic of Germany +49 (30) 398 20 34 54 | |
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
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| Puglisi & Associates 850 Library Avenue, Suite 204 Newark, Delaware 19711 +1 (302) 738 6680 | |
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
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| Krystian M. Czerniecki Sullivan & Cromwell LLP Neue Mainzer Straße 52 60311 Frankfurt, Germany +49 (69) 4272 5200 | |
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act.
†The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting offers to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED AUGUST 15, 2023
20,227,736 American Depositary Shares
Representing 40,455,472 Ordinary Shares offered by the Company
We, Jumia Technologies AG, a German stock corporation (Aktiengesellschaft), may offer, from time to time, in one or more offerings, up to an aggregate of 20,227,736 American Depositary Shares, or ADSs, representing up to an aggregate of 40,455,472 ordinary shares, with no par value, which we collectively refer to as the “securities”. This prospectus describes the general terms of these securities and the general manner in which these securities will be offered. We will provide the specific terms of these securities in supplements to this prospectus. The prospectus supplements will also describe the specific manner in which these securities will be offered and may also supplement, update or amend information contained in this prospectus. You should read this prospectus and any applicable prospectus supplement before you invest.
Our ADSs are listed on the New York Stock Exchange, or NYSE, under the symbol “JMIA.” On August 14, 2023, the closing sale price of our ADSs was $3.72 per ADS.
The securities covered by this prospectus may be offered through one or more underwriters, dealers or agents, or directly to purchasers. The names of any underwriters, dealers or agents, if any, will be included in a supplement to this prospectus. For general information about the distribution of securities offered, please see “Plan of distribution” beginning on page 34. Investing in our securities involves risks. See “Risk factors” beginning on page 6 as well as the risk factors set forth in our most recent annual report on Form 20-F and in other reports incorporated herein by reference. We may include specific risk factors in an applicable prospectus supplement under the heading “Risk Factors.” Neither the U.S. Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2023.
TABLE OF CONTENTS
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For investors outside the United States: Neither we nor any underwriters, dealers or agents have done anything that would permit an offering pursuant to this prospectus, or authorize the possession or distribution of this prospectus in any jurisdiction other than the United States where action for that purpose is required. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the securities and the distribution of this prospectus outside the United States.
We are incorporated in the Federal Republic of Germany. Under the rules of the U.S. Securities and Exchange Commission, or SEC, we are currently eligible for treatment as a “foreign private issuer.” As a foreign private issuer, we will not be required to file periodic reports and financial statements with the SEC as frequently or as promptly as domestic registrants whose securities are registered under the Securities Exchange Act of 1934, as amended, or the Exchange Act.
We are responsible for the information contained or incorporated by reference in this prospectus. We have not authorized anyone to provide you with different information, and we do not take responsibility for any other information others may give you. We and the underwriters are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should not assume that the information contained or incorporated by reference in this prospectus is accurate as of any date other than its date.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, utilizing a “shelf” registration process. Under this shelf process, we may sell up to an aggregate of 20,227,736 ADSs, representing up to an aggregate of 40,455,472 ordinary shares, in one or more offerings. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under the headings “Where you can find more information” and “Incorporation by Reference.”
We have not authorized anyone to provide you with information that is in addition to or different from that contained in, or incorporated by reference into, this prospectus or any prospectus supplement. If anyone provides you with different or inconsistent information, you should not rely on it.
We have filed or incorporated by reference exhibits to the registration statement of which this prospectus forms a part. You should read the exhibits carefully for provisions that may be important to you.
In this prospectus, unless the context otherwise requires, the terms “we,” “us,” “our,” “Jumia” and the “company” refer to Jumia Technologies AG and its consolidated subsidiaries.
Our registered office is at Skalitzer Strasse 104, 10997 Berlin, Germany, and our telephone number is +49-30-398203454.
Neither the delivery of this prospectus nor any sale made under it implies that there has been no change in our affairs or that the information in this prospectus is correct as of any date after the date of this prospectus. You should not assume that the information in this prospectus, including any information incorporated in this prospectus by reference, the accompanying prospectus supplement or any free writing prospectus prepared by us, is accurate as of any date other than the date on the front of those documents. Our business, financial condition, results of operations and prospects may have changed since that date.
You should not assume that the information contained in this prospectus is accurate as of any other date.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Exchange Act. Accordingly, we are required to file reports and other information with the SEC, including annual reports on Form 20-F and reports on Form 6-K. The SEC maintains an Internet website that contains reports and other information about issuers, like us, that file electronically with the SEC. The address of that website is www.sec.gov.
As a foreign private issuer, we are exempt under the Exchange Act from, among other things, the rules prescribing the furnishing and content of proxy statements, and our management board and supervisory board members and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we will not be required under the Exchange Act to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act.
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that relate to our current expectations and views of future events. These statements relate to events that involve known and unknown risks, uncertainties and other factors, including those listed under Item 3. “Key Information—D. Risk Factors” in our then-current annual report on Form 20-F, which may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements.
In some cases, these forward-looking statements can be identified by words or phrases such as “believe,” “may,” “will,” “expect,” “estimate,” “could,” “should,” “anticipate,” “aim,” “estimate,” “intend,” “plan,” “believe,” “potential,” “continue,” “is/are likely to” or other similar expressions. These forward-looking statements are based on estimates and assumptions by our management that, although we believe to be reasonable, are inherently uncertain and subject to a number of risks and uncertainties. These statements constitute forward-looking statements within the meaning of Section 27A of the Securities Act, and Section 21E of the Exchange Act. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of their dates. Forward-looking statements contained in this prospectus include, but are not limited to, statements about:
•our future business and financial performance, including our revenue, operating expenses and our ability to maintain profitability and our future business and operating results;
•our strategies, plan, objectives and goals; and
•our expectations regarding the development of our industry, internet penetration, market size and the competitive environment in which we operate.
These forward-looking statements are subject to risks, uncertainties and assumptions, some of which are beyond our control. In addition, these forward-looking statements reflect our current views with respect to future events and are not a guarantee of future performance. Actual outcomes may differ materially from the information contained in the forward-looking statements as a result of a number of factors, including, without limitation, the risk factors set forth in Item 3. “Key Information—D. Risk Factors,” including the following:
•we have incurred significant losses since inception and there is no guarantee that we will achieve or sustain profitability in the future;
•we rely on external financing and may not be able to raise necessary additional capital on economically acceptable terms or at all;
•our markets pose significant operational challenges that require us to expend substantial financial resources;
•we face risks related to health epidemics and other outbreaks such as COVID-19, which could significantly disrupt our supply chain and our operations, and could negatively affect our development;
•many of our countries of operation are, or have been, characterized by political instability or changes in regulatory or other government policies;
•our business may be materially and adversely affected by an economic slowdown in any region of Africa;
•currency volatility and inflation may materially adversely affect our business;
•uncertainties with respect to the legal system in certain African markets could adversely affect us;
•if our operation of JumiaPay were found to be in violation of applicable laws or regulations, or if JumiaPay is found to be engaged in an unauthorized banking or financial business, we could be subject to fines or other sanctions, forced to cease doing business in certain countries, or forced to change our business practices;
•our business may be materially and adversely affected by violent crime or terrorism in any region of Africa;
•growth of our business depends on an increase in internet penetration in Africa and other external factors, some of which are beyond our control;
•we face competition, which may intensify;
•we may be unable to adapt to changes in our industry or successfully launch and monetize new and innovative technologies, as a result of which our growth and profitability could be adversely affected;
•we may not be able to maintain our existing partnerships, strategic alliances or other business relationships or enter into new ones. We may have limited control over such relationships, and these relationships may not provide the anticipated benefits;
•we may fail to maintain or grow the size of our consumer base or the level of engagement of our consumers;
•sellers set their own prices and decide which goods they make available on our marketplace, which could affect our ability to respond to consumer preferences and trends;
•we use third-party carriers as part of our fulfillment process, giving us limited control over the fulfillment process and exposing us to challenges should we need to replace carriers;
•we may experience malfunctions or disruptions of our technology systems;
•we may experience security breaches and disruptions due to hacking, viruses, fraud, malicious attacks and other circumstances;
•we conduct a substantial amount of our business in foreign currencies, which heightens our exposure to the risk of exchange rate fluctuations.
The forward-looking statements made or incorporated by reference in this prospectus relate only to events or information as of the date on which the statements are made in this prospectus. Except as required by law, we undertake no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise, after the date on which the statements are made or to reflect the occurrence of unanticipated events. You should read this prospectus, the documents incorporated by reference herein and the documents that we reference herein and have filed as exhibits to the registration statement, of which this prospectus is a part, completely and with the understanding that our actual future results or performance may be materially different from what we expect.
THE COMPANY
We are the leading pan-African e-commerce platform. Our platform consists of our marketplace, which connects sellers with consumers, our logistics service, which enables the shipment and delivery of packages from sellers to consumers, and our payment service, JumiaPay, which, together with its network of licensed payment service providers and other partners, facilitates transactions among participants active on our platform in selected markets.
On our marketplace, a large and diverse group of over 100 thousand sellers offer goods across a wide range of categories, such as fashion and apparel, beauty and personal care, home and living, fast moving consumer goods, smartphones and other electronics. We also provide consumers in selected countries with easy access to a range of on-demand services via our Jumia Food platform, including delivery, from restaurants, grocery shops and convenience outlets. On our JumiaPay app, we offer a number of digital lifestyle services including utility bills payment, airtime recharge, gaming and entertainment, transport ticketing as well as financial services such as micro-loans, insurance or savings products. We had 8.4 million Annual Active Consumers as of December 31, 2022. We believe that the number and quality of sellers on our marketplace, and the breadth of their respective offerings, attract more consumers to our platform, increasing traffic and orders, which in turn attracts even more sellers to Jumia, creating powerful network effects. Our marketplace operates with limited inventory risk, as the goods sold via our marketplace are predominantly sold by third-party sellers, meaning the cost and risk of inventory remains with the seller. In 2022, almost 80% of the items sold on our marketplace were offered by third-party sellers.
Our logistics service, Jumia Logistics, facilitates the delivery of goods in a convenient and reliable way. It consists of a large network of leased warehouses, pick up stations for consumers and drop-off locations for sellers and a significant number of local third-party logistics service providers, whom we integrate and manage through our proprietary technology, data and processes. In certain cities, where we believe it is beneficial to enhance our logistics service, we also operate our own last-mile fleet.
Traditionally, consumers across Africa rely on cash to transact. We have designed our payment service, JumiaPay, to facilitate cashless online transactions between participants on our platform, with the intention of integrating additional financial services in the future. JumiaPay encompasses a number of functionalities. JumiaPay, with its network of licensed payment service providers and other partners, provides digital payment processing on our platform allowing for a fast and secure payment experience at checkout. JumiaPay also has a dedicated payment app, the JumiaPay app, through which we offer consumers a number of digital lifestyle services from a broad range of third-party service providers. Lastly, through Jumia Lending, our sellers can access financing solutions provided by third-party financial institutions, leveraging data from the sellers’ transactional activity on our platform for credit scoring purposes. As of December 31, 2022, one or more JumiaPay services were available in eight markets: Egypt, Ghana, Ivory Coast, Kenya, Morocco, Nigeria, Tunisia and Uganda. JumiaPay Transactions and Total Payment Volume (“TPV”) have both increased substantially since its launch. The number of JumiaPay Transactions reached 12.5 million in 2022 compared to 12.1 million in 2021. TPV reached $285.3 million in 2022, up 8.4% compared to 2021.
Our operations benefit from a uniform technology platform coupled with coordinated local presence. Our unified, scalable technology platform has been developed by our technology and data team, which is predominantly located in Portugal and Egypt. This technology platform covers all relevant aspects of our operations, from data management, business intelligence, traffic optimization and consumer engagement to infrastructure, logistics and payments. We constantly collect and analyze data to help us optimize our operations, make our consumer experience more personal and relevant, and enable us, selected sellers and logistics partners to make informed real-time decisions. Our local teams in each of our countries of operations have access to, and may benefit from, the centralized data collection and analytics and are empowered to use the insights gained from our platform in order to take action locally.
RISK FACTORS
Before making a decision to invest in our securities, you should carefully consider the risks described under Item 3. “Key Information—D. Risk Factors” in the applicable prospectus supplement and in our then most recent annual report on Form 20-F or Form 20-F/A, as the case may be, and in any updates to those risk factors in our reports on Form 6-K incorporated herein, together with all of the other information appearing or incorporated by reference in this prospectus and any applicable prospectus supplement, in light of your particular investment objectives and financial circumstances.
USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement, the net proceeds from our sale of the securities will be used for general corporate purposes and other business opportunities.
CAPITALIZATION
Information on our consolidated capitalization will be contained, if necessary, in a prospectus supplement.
DESCRIPTION OF SHARE CAPITAL AND ARTICLES OF ASSOCIATION
The following description of our capital stock is a summary of the rights of our ordinary shares and certain provisions of our articles of association in effect as of August 14, 2023. 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 registration statement of which this prospectus forms a part, as well as to the applicable provisions of German legislation on stock corporations. We encourage you to read our articles of association and applicable German legislation on stock corporations carefully.
Share Capital
As of August 14, 2023, our share capital as registered in the commercial register amounts to €202,277,366.00, which is divided into 202,277,366 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 relevant shareholders’ meeting (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. The resolution requires an affirmative vote of three quarters of the share capital represented at the shareholders’ meeting and a simple majority of the votes cast.
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 same voting requirement as for the creation of authorized capital apply. According to German law, the aggregate nominal amount of the conditional capital created at the shareholders’ meeting may not exceed one-half 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 10% 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 relevant shareholders’ meeting 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 relevant shareholders’ meeting as well as a simple majority of the votes cast according to German law.
Authorized Capital
Under the German Stock Corporation Act (Aktiengesetz), a stock corporation’s shareholders’ meeting can authorize the management board to, with the consent of the supervisory board, issue 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 14, 2023, our articles of association provide for the following authorized capital:
Authorized Capital 2018/I
Pursuant to paragraph 2 of section 4 of our articles of association, the management board is authorized until December 16, 2023 to increase, once or repeatedly and each time with the consent of the supervisory board, our share capital by up to a total amount of €704,292.00 through the issuance of up to 704,292 new no-par value bearer shares against contributions in cash and/or in kind, including claims against us (the “Authorized Capital 2018/I”). The subscriptions rights of the shareholders are excluded. The Authorized Capital 2018/I serves to fulfill acquisition rights (option rights) that have been granted by us (or our legal predecessors), prior to our conversion into a German stock corporation, to current and/or former managing directors and/or employees of the company and/or its direct and indirect subsidiaries and to service providers, supporters or business partners of the company and/or its direct and indirect subsidiaries. The Authorized Capital 2018/I also serves to issue shares in the company to holders of shares in direct or indirect subsidiaries of the company, including such shares in direct or indirect subsidiaries of the company which are held in trust by their holders. The shares which will be created from the Authorized Capital 2018/I may only be issued for these purposes. A capital increase may be implemented only to the extent that the holders of option rights exercise their option rights, and as required to issue shares in the company to holder of shares in direct or indirect subsidiaries of the company, including such shares in direct or indirect subsidiaries of the company which are held in trust by their holders.
The issue amount of the new shares must be at least €1.00 per share and may be paid in cash or in kind, including claims against the company. The management board, subject to the consent of the supervisory board, is authorized to determine any further details of the capital increase and its implementation, including the period for which the new shares participate in any profit for the first time, which may, in deviation from Section 60(2) of the German Stock Corporation Act, include profit participation for the current fiscal year. To the extent that a member of the management board is entitled under the option rights, such determinations will be made exclusively by the supervisory board. The supervisory board may adjust the wording of the articles of association if the Authorized Capital 2018/I is utilized or the authorization expired.
Authorized Capital 2021/II
Pursuant to paragraph 5 of section 4 of our articles of association, the management board is authorized until June 8, 2026 (inclusive) to increase, once or repeatedly and each time with the consent of the supervisory board, the share capital by a total amount of up to €92,796,094.00 through the issuance of up to 92,796,094 new no-par value bearer shares against contributions in cash and/or in kind, including claims against us (“Authorized Capital 2021/II”). In principle, the shareholders are to be granted subscription rights. The shares may also be subscribed for by one or more credit institution(s) or one or several 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 (so-called indirect subscription right).
The subscription right of the shareholders is excluded for one or more capital increases in the context of the Authorized Capital 2021/II,
•if the utilization of the Authorized Capital 2021/II occurs in order to issue up to a maximum of 36,783 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 2019 of the company (“VRSUP 2019”) 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 (Aktiengesetz) or their investment vehicles, subject to the details of the VRSUP 2019, in each case against contribution of the claims for payments originated under the Virtual Restricted Stock Units;
•if the utilization of the Authorized Capital 2021/II occurs in order to issue up to a maximum of 110,564 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 2020 of the company (“VRSUP 2020”) 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 (Aktiengesetz) or their investment vehicles, subject to the details of the VRSUP 2020, 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 2021/II occurs in order to issue up to a maximum of 8,003,344 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 (Aktiengesetz) 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.
In this case, the pro rata amount of the share capital attributable to the new shares issued may not exceed a total of 10% of the share capital of the company existing at the time of the adoption of the resolution of the Conditional Capital 2021/III by the shareholders’ meeting of June 9, 2021 being exercised, depending on which is lowest. Towards this 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 (Aktiengesetz) or their investment vehicles in the context of participation programs ever since the resolution of the Conditional Capital 2021/III was adopted.
Further, the management board, with the consent of the supervisory board, is authorized to exclude the subscription rights of the shareholders for one or more capital increases in the context of the Authorized Capital 2021/II,
•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 fulfillment 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 10% of the share capital of the company, whether at the time the Authorized Capital 2021/II comes into effect or - in case such amount is lower - is exercised. Towards the above threshold of 10 % 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 2021/II 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 2021/II subject to the exclusion of the shareholders’ subscription rights; or (iii) that are issued during the term of the Authorized Capital 2021/II 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 utilization of the Authorized Capital 2021/II or upon expiry of the period for the utilization of the Authorized Capital 2021/II.
Authorized Capital 2023/I
The ordinary shareholders’ meeting of August 14, 2023 adopted a resolution to cancel the existing Authorized Capital 2021/II as well as the Authorized Capital 2018/I and replace them with a new Authorized Capital 2023/I. For the cancellation and the new Authorized Capital 2023/I to become effective they must be entered in the commercial register. The Company will apply to the competent local court of Charlottenburg for this registration. Upon entry in the commercial register the existing Authorized Capital 2021/II and the Authorized Capital 2018/I will be replaced with the following Authorized Capital 2023/I:
Pursuant to paragraph 2 of section 4 of our articles of association, the management board is authorized until August 13, 2028 (inclusive) to increase, once or repeatedly and each time with the consent of the supervisory board, the share capital by a total amount of up to €101,138,683.00 through the issuance of up to 101,138,683 new no-par value bearer shares against contributions in cash and/or in kind, including claims against us (“Authorized Capital 2023/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) or one or several 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 (so-called indirect subscription right).
The shareholders’ subscription rights are excluded for one or more capital increases in the context of the Authorized Capital 2023/I,
•if the utilization of the Authorized Capital 2023/I occurs in order to issue up to a maximum of 225,435 new shares of the company to fulfil acquisition rights (option rights) granted by the company (or its legal predecessors) prior to its conversion into a stock corporation to current and/or former managing directors and/or employees of the company and/or its direct and indirect subsidiaries and to service providers, supporters or business partners of the company and/or its direct and indirect subsidiaries;
•if the utilization of the Authorized Capital 2023/I occurs in order to issue up to a maximum of 6,958,538 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 (Aktiengesetz) 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 2023/I occurs in order to issue up to a maximum of 6,500,000 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 (Aktiengesetz) 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 this case, 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 2023/I or, if this amount is lower, existing at the time of the exercise of the Authorized Capital 2023/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 (Aktiengesetz) or their investment vehicles to settle claims under participation programs since the resolution on the Authorized Capital 2023/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 2023/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 (Aktiengesetz) 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 10% of the share capital of the company, whether at the time the Authorized Capital 2023/I comes into effect or – in case such amount is lower – is exercised. Towards the above threshold of 10% 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 2023/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 2023/I subject to the exclusion of the shareholders’ subscription rights; or (iii) that are issued during the term of the Authorized Capital 2023/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 (Aktiengesetz), 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 complete utilization of the Authorized Capital 2023/I or upon expiry of the period for the utilization of the Authorized Capital 2023/I.
Conditional Capital
As of August 14, 2023, our articles of association provide for the following conditional capital:
Conditional Capital 2019/I
Pursuant to paragraph 3 of section 4 of our articles of association, our share capital is conditionally increased by up to €2,692,876.00 through issuance of up to 2,692,876 new no-par value ordinary bearer shares (“Conditional Capital 2019/I”). The Conditional Capital 2019/I may only be used to issue shares of the company to fulfil the subscription rights for shares in the company that have been or will be granted to members of our management board and employees as well as members of the management and employees of companies affiliated with us, within the meaning of Sections 15 et seqq. of the German Stock Corporation Act, in the form of stock
options in accordance with the authorizing resolution of the shareholders’ meeting held on February 15, 2019. The conditional capital increase will only be implemented to the extent that (i) stock options have been or will be granted in accordance with the authorizing resolution of the shareholders’ meeting of February 15, 2019, (ii) the holders of the stock options exercise their rights and (iii) the company does not deliver treasury shares to satisfy the stock options, whereas the supervisory board shall be exclusively competent regarding the granting and settlement of stock options to the members of the management board. The new no-par value bearer shares shall participate in the profits from the beginning of the financial year in which they are issued. A shareholders’ meeting of the company held on April 1, 2019 adopted a resolution pursuant to which 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 amendment of the Conditional Capital 2019/I by such shareholders’ meeting held on April 1, 2019 and that 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 Sections 15 et seqq. of the German Stock Corporation Act (Aktiengesetz), respectively, their investment vehicles, in the context of participation programs since such resolution of the shareholders’ meeting on the Conditional Capital 2019/I was adopted. The supervisory board is authorized to amend our articles of association accordingly after the respective utilization of the Conditional Capital 2019/I and upon the expiry of any and all exercise periods.
Conditional Capital 2020/I
Pursuant to paragraph 6 of section 4 of our articles of association, our share capital is conditionally increased by up to €3,700,000.00 through the issuance of up to 3,700,000 new no-par value ordinary bearer shares (“Conditional Capital 2020/1”). The Conditional Capital 2020/l may only be used to issue shares of the company to fulfil the subscription rights for shares in the company that have been or will be granted 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 in the form of stock options in accordance with the authorization of the shareholders’ meeting of June 9, 2020. The conditional capital increase will only be implemented to the extent that stock options have been or will be granted in accordance with the authorization of the shareholders’ meeting of June 9, 2020, the holders of the stock options exercise their rights and the company does not deliver treasury shares to satisfy the stock options, whereas the supervisory board shall be exclusively competent regarding the granting and settlement of stock options to the members of the management board. The new no-par value bearer shares shall participate in the profits from the beginning of the most recent financial year for which, at the time of the issuance, the annual general meeting of shareholders has not yet resolved on the appropriation of any profit. 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 amendment of the Conditional Capital 2020/I by the shareholders’ meeting of June 9, 2020. Towards this 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 in the context of participation programs ever since the resolution on the Conditional Capital 2020/I was adopted. The supervisory board is authorized to amend the wording of the articles of association accordingly after any utilization of the Conditional Capital 2020/I or upon the expiry of all exercise periods.
Conditional Capital 2021/II
Pursuant to paragraph 4 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
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 subscription rights if at least three-quarters of the share capital represented adopts the resolution. To exclude subscription 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. Accordingly, under German law, the exclusion of subscription rights upon the issuance of new shares is permitted, in particular, if we increase the share capital against cash contributions, if the amount of the capital increase does not exceed 10% of the existing share capital and 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).
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 as of the respective shareholder 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 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.
In July 2022, the German legislator adopted the ‘Act for the introduction of virtual general shareholders’ meetings of stock corporations and for the amendments of provisions on cooperatives, insolvency and restructurings’ (Gesetz zur Einführung virtueller Hauptversammlungen von Aktiengesellschaften und Änderung genossenschafts- sowie insolvenz- und restrukturierungsrechtlicher Vorschriften). This act transformed the temporary concept of virtual general shareholders’ meetings, which was introduced in the context of the COVID-19 pandemic, with certain modifications into permanent law.
Under the new law, a virtual general shareholders’ meeting may be held 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.
General shareholders’ meetings convocated by August 31, 2023 may be held as virtual meetings under the new statutory provisions. For general shareholders‘ meetings convocated after this date, 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 these meetings shall be held as virtual meetings or may authorize the management board to decide to hold these meetings as virtual meetings.
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 authorization includes the acquisition of American Depository Shares representing shares of the company (“ADS”) that are admitted to trading on the New York Stock Exchange, provided that, with regard to the limit of 10 % of the share capital, the number of ADS is to be multiplied with the number of ADS representing one share of the company.
The management board is generally authorized to use treasury shares or ADS 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 | Delaware |
| Board System | 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. | 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 | 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. | 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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| 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 | 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. | 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. |
Vacancies on the Boards | 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. | 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 | 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. | 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. |
Calling of Shareholders’ Meetings | 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. | 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. |
Notice of Shareholders’ Meetings | 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. | 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 | 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. | 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. |
Preemptive / Subscription Rights | 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. | 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. |
| Authority to Allot | 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. | 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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| Voting Rights | 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. | 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 | 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. | 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 | 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. | 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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Standard of Conduct for Directors and Officers | •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. | 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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Shareholder Suits | 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. | 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 22, 2022. 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.”
DESCRIPTION OF AMERICAN DEPOSITARY SHARES
American Depositary Shares
The Bank of New York Mellon, as depositary, will register and deliver ADSs. Each ADS will represent two ordinary shares (or a right to receive two ordinary shares) deposited with The Bank of New York Mellon SA/NV, as custodian for the depositary. Each ADS will also represent any other securities, cash or other property which may be held by the depositary. The deposited shares together with any other securities, cash or other property held by the depositary are referred to as the deposited securities. The depositary’s office at which the ADSs will be administered and its principal executive office are located at 240 Greenwich Street, New York, NY 10286.
You may hold ADSs either (a) directly (i) by having an American Depositary Receipt (“ADR”), which is a certificate evidencing a specific number of ADSs, registered in your name, or (ii) by having uncertificated ADSs registered in your name, or (b) indirectly by holding a security entitlement in ADSs through your broker or other financial institution that is a direct or indirect participant in The Depository Trust Company, also called DTC. If you hold ADSs directly, you are a registered ADS holder (“ADS holder”). If you hold the ADSs indirectly, you must rely on the procedures of your broker or other financial institution to assert the rights of ADS holders described in this section. You should consult with your broker or financial institution for more information regarding those products. Registered holders of uncertificated ADSs will receive statements from the depositary confirming their holdings.
As an ADS holder, we will not treat you as one of our shareholders and you will not have shareholder rights. German law governs shareholder rights. The depositary will be the holder of the ordinary shares underlying your ADSs. As a registered holder of ADSs, you will have ADS holder rights. A deposit agreement among us, the depositary, ADS holders and all other persons indirectly or beneficially holding ADSs sets out ADS holder rights as well as the rights and obligations of the depositary. New York law governs the deposit agreement and the ADSs.
The following is a summary of the material provisions of the deposit agreement. For more complete information, you should read the entire deposit agreement and the form of ADR. Directions on how to obtain copies of those documents are described in “Where You Can Find More Information.”
Dividends and Other Distributions
How will you receive dividends and other distributions on the shares?
The depositary has agreed to pay or distribute to ADS holders the cash dividends or other distributions it or the custodian receives on ordinary shares or other deposited securities, upon payment or deduction of its fees and expenses. You will receive these distributions in proportion to the number of shares your ADSs represent.
Cash. The depositary will convert any cash dividend or other cash distribution we pay on our ordinary shares into U.S. dollars, if it can do so on a reasonable basis and can transfer the U.S. dollars to the United States. If that is not possible or if any government approval is needed and cannot be obtained, the deposit agreement allows the depositary to distribute the foreign currency only to those ADS holders to whom it is possible to do so. It will hold the foreign currency it cannot convert for the account of the ADS holders who have not been paid. It will not invest the foreign currency and it will not be liable for any interest.
Before making a distribution, any withholding taxes, or other governmental charges that must be paid will be deducted. The depositary will distribute only whole U.S. dollars and cents and will round fractional cents to the nearest whole cent. If the exchange rates fluctuate during a time when the depositary cannot convert the foreign currency, you may lose some of the value of the distribution.
Shares. The depositary may distribute additional ADSs representing any ordinary shares we distribute as a dividend or free distribution. The depositary will only distribute whole ADSs. It will sell ordinary shares which would require it to deliver a fraction of an ADS (or ADSs representing those shares) and distribute the net proceeds in the same way as it does with cash. If the depositary does not distribute additional ADSs, the outstanding ADSs will also represent the new shares. The depositary may sell a portion of the distributed ordinary shares (or ADSs representing those shares) sufficient to pay its fees and expenses in connection with that distribution.
Rights to purchase additional shares. If we offer holders of our securities any rights to subscribe for additional ordinary shares or any other rights, the depositary may (i) exercise those rights on behalf of ADS holders, (ii) distribute those rights to ADS holders or (iii) sell those rights and distribute the net proceeds to ADS holders, in each case after deduction or upon payment of its fees and expenses. To the extent the depositary does not do any of
those things, it will allow the rights to lapse. In that case, you will receive no value for them. The depositary will exercise or distribute rights only if we ask it to and provide satisfactory assurances to the depositary that it is legal to do so. If the depositary will exercise rights, it will purchase the securities to which the rights relate and distribute those securities or, in the case of shares, new ADSs representing the new shares, to subscribing ADS holders, but only if ADS holders have paid the exercise price to the depositary. U.S. securities laws may restrict the ability of the depositary to distribute rights or ADSs or other securities issued on exercise of rights to all or certain ADS holders, and the securities distributed may be subject to restrictions on transfer.
There can be no assurance that you will be given the opportunity to exercise rights on the same terms and conditions as the holders of our ordinary shares or be able to exercise such rights at all.
Other Distributions. The depositary will send to ADS holders anything else we distribute on deposited securities by any means it thinks is legal, equitable and practical. If it cannot make the distribution in that way, the depositary has a choice. It may decide to sell what we distributed and distribute the net proceeds, in the same way as it does with cash. Or, it may decide to hold what we distributed, in which case ADSs will also represent the newly distributed property. However, the depositary is not required to distribute any securities (other than ADSs) to ADS holders unless it receives satisfactory evidence from us that it is legal to make that distribution. The depositary may sell a portion of the distributed securities or property sufficient to pay its fees and expenses in connection with that distribution. U.S. securities laws may restrict the ability of the depositary to distribute securities to all or certain ADS holders, and the securities distributed may be subject to restrictions on transfer.
The depositary is not responsible if it decides that it is unlawful or impractical to make a distribution available to any ADS holders. We have no obligation to register ADSs, shares, rights or other securities under the Securities Act. We also have no obligation to take any other action to permit the distribution of ADSs, shares, rights or anything else to ADS holders. This means that you may not receive the distributions we make on our shares or any value for them if it is illegal or impractical for us to make them available to you.
Deposit, Withdrawal and Cancellation
How are ADSs issued?
The depositary will deliver ADSs if you or your broker deposits shares or evidence of rights to receive shares with the custodian. Upon payment of its fees and expenses and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees, the depositary will register the appropriate number of ADSs in the names you request and will deliver the ADSs to or upon the order of the person or persons that made the deposit.
How can ADS holders withdraw the deposited securities?
You may surrender your ADSs to the depositary for the purpose of withdrawal. Upon payment of its fees and expenses and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees, the depositary will deliver the ordinary shares and any other deposited securities underlying the ADSs to the ADS holder or a person the ADS holder designates at the office of the custodian. Or, at your request, risk and expense, the depositary will deliver the deposited securities at its office, if feasible. The depositary may charge you a fee and its expenses for instructing the custodian regarding delivery of deposited securities. Under certain circumstances, the right to surrender ADSs and withdraw deposited securities may be suspended temporarily.
How do ADS holders interchange between certificated ADSs and uncertificated ADSs?
You may surrender your ADR to the depositary for the purpose of exchanging your ADR for uncertificated ADSs. The depositary will cancel that ADR and will send to the ADS holder a statement confirming that the ADS holder is the registered holder of uncertificated ADSs. Upon receipt by the depositary of a proper instruction from a registered holder of uncertificated ADSs requesting the exchange of uncertificated ADSs for certificated ADSs, the depositary will execute and deliver to the ADS holder an ADR evidencing those ADSs.
Voting Rights
How do you vote?
ADS holders may instruct the depositary how to vote the number of deposited ordinary shares their ADSs represent at any meeting at which you are entitled to vote pursuant to applicable law and our articles of association. Upon receipt of notice of any shareholders’ meeting, the depositary will notify you of such shareholders’ meeting and send or make voting materials available to you. Those materials will describe the matters to be voted on and
explain how ADS holders may instruct the depositary how to vote. For instructions to be valid, they must reach the depositary by a date set by the depositary. The depositary will try, as far as practical, subject to the laws of Germany and the provisions of our articles of association or similar documents, to vote or to have its agents vote the ordinary shares or other deposited securities as instructed by ADS holders. If we do not request the depositary to solicit your voting instructions, you can still send voting instructions, and, in that case, the depositary may try to vote as you instruct, but it is not required to do so.
Except by instructing the depositary as described above, you will not be able to exercise voting rights unless you surrender your ADSs and withdraw the ordinary shares. However, you may not know about the meeting enough in advance to withdraw the ordinary shares. In any event, the depositary will not exercise any discretion in voting deposited securities and it will only vote or attempt to vote as instructed.
We cannot assure you that you will receive the voting materials in time to ensure that you can instruct the depositary to vote your ordinary shares. In addition, the depositary and its agents are not responsible for failing to carry out voting instructions or for the manner of carrying out voting instructions. This means that you may not be able to exercise voting rights and there may be nothing you can do if your ordinary shares are not voted as you requested.
In order to give you a reasonable opportunity to instruct the depositary as to the exercise of voting rights relating to Deposited Securities, if we request the depositary to act, we agree to give the depositary notice of any such meeting and details concerning the matters to be voted upon at least 40 days in advance of the meeting date.
The depositary will not vote or attempt to exercise the right to vote or exercise any voting discretion, other than in accordance with such instructions received or deemed to have been received from any ADS holder.
If we asked the depositary to solicit your instructions at least 40 days before the meeting date but the depositary does not receive voting instructions from you by the specified date, and we confirm to the depositary that:
•we wish to receive a discretionary proxy,
•as of the instruction cutoff date, we reasonably do not know of any substantial shareholder opposition to the particular question and
•the particular question would not be materially adverse to the interests of our shareholders,
then the depositary will consider you to have authorized and directed it to give a discretionary proxy to a person designated by us to vote the number of deposited securities represented by your ADSs as to that question.
Fees and Expenses
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Persons depositing or withdrawing shares or ADS holders must pay: | For: |
$5.00 (or less) per 100 ADSs (or portion of 100 ADSs) | Issuance of ADSs, including issuances resulting from a distribution of shares or rights or other property Cancellation of ADSs for the purpose of withdrawal, including if the deposit agreement terminates |
$0.05 (or less) per ADS | Any cash distribution to ADS holders |
A fee equivalent to the fee that would be payable if securities distributed to you had been shares and the shares had been deposited for issuance of ADSs | Distribution of securities distributed to holders of deposited securities (including rights) that are distributed by the depositary to ADS holders |
$0.05 (or less) per ADS per calendar year | Depositary services |
Registration or transfer fees | Transfer and registration of shares on our share register to or from the name of the depositary or its agent when you deposit or withdraw shares |
Expenses of the depositary | Cable and facsimile transmissions (when expressly provided in the deposit agreement) |
| Converting foreign currency to U.S. dollars |
Taxes and other governmental charges the depositary or the custodian has to pay on any ADSs or shares underlying ADSs, such as stock transfer taxes, stamp duty or withholding taxes | As necessary |
Any charges incurred by the depositary or its agents for servicing the deposited securities | As necessary |
The depositary collects its fees for delivery and surrender of ADSs directly from investors depositing ordinary shares or surrendering ADSs for the purpose of withdrawal or from intermediaries acting for them. The depositary collects fees for making distributions to investors by deducting those fees from the amounts distributed or by selling a portion of distributable property to pay the fees. The depositary may collect its annual fee for depositary services by deduction from cash distributions or by directly billing investors or by charging the book-entry system accounts of participants acting for them. The depositary may collect any of its fees by deduction from any cash distribution payable (or by selling a portion of securities or other property distributable) to ADS holders that are obligated to pay those fees. The depositary may generally refuse to provide fee-attracting services until its fees for those services are paid.
From time to time, the depositary may make payments to us to reimburse us for costs and expenses generally arising out of establishment and maintenance of the ADS program, waive fees and expenses for services provided to us by the depositary or share revenue from the fees collected from ADS holders. In performing its duties under the deposit agreement, the depositary may use brokers, dealers, foreign currency dealers or other service providers that are owned by or affiliated with the depositary and that may earn or share fees, spreads or commissions.
The depositary may convert currency itself or through any of its affiliates and, in those cases, acts as principal for its own account and not as agent, advisor, broker or fiduciary on behalf of any other person and earns revenue, including, without limitation, transaction spreads, that it will retain for its own account. The revenue is based on, among other things, the difference between the exchange rate assigned to the currency conversion made under the deposit agreement and the rate that the depositary or its affiliate receives when buying or selling foreign currency for its own account. The depositary makes no representation that the exchange rate used or obtained in any currency conversion under the deposit agreement will be the most favorable rate that could be obtained at the time or that the method by which that rate will be determined will be the most favorable to ADS holders, subject to the depositary’s obligations under the deposit agreement. The methodology used to determine exchange rates used in currency conversions is available upon request.
Payment of Taxes
You will be responsible for any taxes or other governmental charges payable on your ADSs or on the deposited securities represented by any of your ADSs. The depositary may refuse to register any transfer of your ADSs or allow you to withdraw the deposited securities represented by your ADSs until those taxes or other charges are paid. It may apply payments owed to you or sell deposited securities represented by your ADSs to pay any taxes owed and you will remain liable for any deficiency. If the depositary sells deposited securities, it will, if appropriate, reduce the number of ADSs to reflect the sale and pay to ADS holders any proceeds, or send to ADS holders any property, remaining after it has paid the taxes.
Tender and Exchange Offers; Redemption, Replacement or Cancellation of Deposited Securities
The depositary will not tender deposited securities in any voluntary tender or exchange offer unless instructed to do by an ADS holder surrendering ADSs and subject to any conditions or procedures the depositary may establish. If deposited securities are redeemed for cash in a transaction that is mandatory for the depositary as a holder of deposited securities, the depositary will call for surrender of a corresponding number of ADSs and distribute the net redemption money to the holders of called ADSs upon surrender of those ADSs. If there is any change in the deposited securities such as a subdivision, combination or other reclassification, or any merger, consolidation, recapitalization or reorganization affecting the issuer of deposited securities in which the depositary receives new securities in exchange for or in lieu of the old deposited securities, the depositary will hold those replacement securities as deposited securities under the deposit agreement. However, if the depositary decides it would not be lawful to hold the replacement securities because those securities could not be distributed to ADS holders or for any other reason, the depositary may instead sell the replacement securities and distribute the net proceeds upon surrender of the ADSs.
If there is a replacement of the deposited securities and the depositary will continue to hold the replacement securities, the depositary may distribute new ADSs representing the new deposited securities or ask you to surrender your outstanding ADRs in exchange for new ADRs identifying the new deposited securities.
If there are no deposited securities underlying ADSs, including if the deposited securities are cancelled, or if the deposited securities underlying ADSs have become apparently worthless, the depositary may call for surrender of those ADSs or cancel those ADSs upon notice to the ADS holders.
Amendment and Termination
How may the deposit agreement be amended?
We may agree with the depositary to amend the deposit agreement and the ADRs without your consent for any reason. If an amendment adds or increases fees or charges, except for taxes and other governmental charges or expenses of the depositary for registration fees, facsimile costs, delivery charges or similar items, or prejudices a substantial right of ADS holders, it will not become effective for outstanding ADSs until 30 days after the depositary notifies ADS holders of the amendment. At the time an amendment becomes effective, you are considered, by continuing to hold your ADSs, to agree to the amendment and to be bound by the ADRs and the deposit agreement as amended.
How may the deposit agreement be terminated?
The depositary will initiate termination of the deposit agreement if we instruct it to do so. The depositary may initiate termination of the deposit agreement if:
•60 days have passed since the depositary told us it wants to resign but a successor depositary has not been appointed and accepted its appointment;
•we delist our shares from an exchange on which they were listed and do not list the shares on another exchange;
•we appear to be insolvent or enter insolvency proceedings;
•all or substantially all the value of the deposited securities has been distributed either in cash or in the form of securities;
•there are no deposited securities underlying the ADSs or the underlying deposited securities have become apparently worthless; or
•there has been a replacement of deposited securities.
If the deposit agreement will terminate, the depositary will notify ADS holders at least 90 days before the termination date. At any time after the termination date, the depositary may sell the deposited securities. After that, the depositary will hold the money it received on the sale, as well as any other cash it is holding under the deposit agreement, unsegregated and without liability for interest, for the pro rata benefit of the ADS holders that have not surrendered their ADSs. Normally, the depositary will sell as soon as practicable after the termination date.
After the termination date and before the depositary sells, ADS holders can still surrender their ADSs and receive delivery of deposited securities, except that the depositary may refuse to accept a surrender for the purpose of withdrawing deposited securities if it would interfere with the selling process. The depositary may refuse to accept a surrender for the purpose of withdrawing sale proceeds until all the deposited securities have been sold. The depositary will continue to collect distributions on deposited securities, but, after the termination date, the depositary is not required to register any transfer of ADSs or distribute any dividends or other distributions on deposited securities to the ADSs holder (until they surrender their ADSs) or give any notices or perform any other duties under the deposit agreement except as described in this paragraph.
Limitations on Obligations and Liability
Limits on our Obligations and the Obligations of the Depositary; Limits on Liability to Holders of ADSs
The deposit agreement expressly limits our obligations and the obligations of the depositary. It also limits our liability and the liability of the depositary. We and the depositary:
•are only obligated to take the actions specifically set forth in the deposit agreement without negligence or bad faith and the depositary will not be a fiduciary or have any fiduciary duty to holders of ADSs;
•are not liable if we are or it is prevented or delayed by law or by events or circumstances beyond our or its control from performing our or its obligations under the deposit agreement;
•are not liable if we or it exercises discretion permitted under the deposit agreement;
•are not liable for the inability of any holder of ADSs to benefit from any distribution on deposited securities that is not made available to holders of ADSs under the terms of the deposit agreement, or for any special, consequential or punitive damages for any breach of the terms of the deposit agreement;
•have no obligation to become involved in a lawsuit or other proceeding related to the ADSs or the deposit agreement on your behalf or on behalf of any other person;
•are not liable for the acts or omissions of any securities depository, clearing agency or settlement system;
•may rely upon any documents we believe or it believes in good faith to be genuine and to have been signed or presented by the proper person; and
•the depositary has no duty to make any determination or provide any information as to our tax status, or any liability for any tax consequences that may be incurred by ADS holders as a result of owning or holding ADSs or be liable for the inability or failure of an ADS holder to obtain the benefit of a foreign tax credit, reduced rate of withholding or refund of amounts withheld in respect of tax or any other tax benefit.
In the deposit agreement, we and the depositary agree to indemnify each other under certain circumstances.
Requirements for Depositary Actions
Before the depositary will deliver or register a transfer of ADSs, make a distribution on ADSs, or permit withdrawal of ordinary shares, the depositary may require:
•payment of stock transfer or other taxes or other governmental charges and transfer or registration fees charged by third parties for the transfer of any shares or other deposited securities;
•satisfactory proof of the identity and genuineness of any signature or other information it deems necessary; and
•compliance with regulations it may establish, from time to time, consistent with the deposit agreement, including presentation of transfer documents.
The depositary may refuse to deliver ADSs or register transfers of ADSs when the transfer books of the depositary or our transfer books are closed or at any time if the depositary or we think it advisable to do so.
Your Right to Receive the Shares Underlying your ADSs
ADS holders have the right to cancel their ADSs and withdraw the underlying ordinary shares at any time except:
•when temporary delays arise because: (i) the depositary has closed its transfer books or we have closed our transfer books; (ii) the transfer of ordinary shares is blocked to permit voting at a shareholders’ meeting; or (iii) we are paying a dividend on our ordinary shares;
•when you owe money to pay fees, taxes and similar charges; or
•when it is necessary to prohibit withdrawals in order to comply with any laws or governmental regulations that apply to ADSs or to the withdrawal of shares or other deposited securities.
This right of withdrawal may not be limited by any other provision of the deposit agreement.
Direct Registration System
In the deposit agreement, all parties to the deposit agreement acknowledge that the Direct Registration System (“DRS”) and Profile Modification System (“Profile”) will apply to the ADSs. DRS is a system administered by DTC that facilitates interchange between registered holding of uncertificated ADSs and holding of security entitlements in ADSs through DTC and a DTC participant. Profile is a feature of DRS that allows a DTC participant, claiming to act on behalf of a registered holder of uncertificated ADSs, to direct the depositary to register a transfer of those ADSs to DTC or its nominee and to deliver those ADSs to the DTC account of that DTC participant without receipt by the depositary of prior authorization from the ADS holder to register that transfer.
In connection with and in accordance with the arrangements and procedures relating to DRS/Profile, the parties to the deposit agreement understand that the depositary will not determine whether the DTC participant that is claiming to be acting on behalf of an ADS holder in requesting registration of transfer and delivery as described in the paragraph above has the actual authority to act on behalf of the ADS holder (notwithstanding any requirements under the Uniform Commercial Code). In the deposit agreement, the parties agree that the depositary’s reliance on and compliance with instructions received by the depositary through the DRS/Profile system and in accordance with the deposit agreement will not constitute negligence or bad faith on the part of the depositary.
Shareholder Communications; Inspection of Register of Holders of ADSs
The depositary will make available for your inspection at its office all communications that it receives from us as a holder of deposited securities that we make generally available to holders of deposited securities. The depositary will send you copies of those communications or otherwise make those communications available to you if we ask it to. You have a right to inspect the register of holders of ADSs, but not for the purpose of contacting those holders about a matter unrelated to our business or the ADSs.
Jury Trial Waiver
The deposit agreement provides that, to the extent permitted by law, ADS holders waive the right to a jury trial of any claim they may have against us or the depositary arising out of or relating to our shares, the ADSs or the deposit agreement, including any claim under the U.S. federal securities laws. If we or the depositary opposed a jury trial demand based on the waiver, the court would determine whether the waiver is enforceable in the facts and circumstances of that case in accordance with applicable case law.
PLAN OF DISTRIBUTION
We may sell the securities in one or more of the following ways (or in any combination) from time to time:
•through underwriters or dealers;
•directly to a limited number of purchasers or to a single purchaser;
•in “at-the-market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market on an exchange or otherwise;
•through agents; or
•through any other method permitted by applicable law and described in the applicable prospectus supplement.
The prospectus supplement will state the terms of the offering of the securities, including:
•the name or names of any underwriters, dealers or agents;
•the purchase price of such securities and the proceeds to be received by us, if any;
•any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation;
•any public offering price;
•any discounts or concessions allowed or reallowed or paid to dealers; and
•any securities exchanges on which the securities may be listed.
Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale, the securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including:
•negotiated transactions;
•at a fixed public offering price or prices, which may be changed;
•at market prices prevailing at the time of sale;
•at prices related to prevailing market prices; or
•at negotiated prices.
Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary closing conditions and the underwriters will be obligated to purchase all of such series of securities, if any are purchased.
The securities may be sold through agents from time to time. The prospectus supplement will name any agent involved in the offer or sale of the securities and any commissions paid to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment.
Sales to or through one or more underwriters or agents in at-the-market offerings will be made pursuant to the terms of a distribution agreement with the underwriters or agents. Such underwriters or agents may act on an agency basis or on a principal basis. During the term of any such agreement, shares may be sold on a daily basis on any stock exchange, market or trading facility on which the ADSs are traded, in privately negotiated transactions or otherwise as agreed with the underwriters or agents. The distribution agreement will provide that any common share sold will be sold at negotiated prices or at prices related to the then prevailing market prices for our ADSs. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined at this time and will be described in a prospectus supplement. Pursuant to the terms of the distribution agreement, we may also agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase, blocks of our ADSs or ordinary shares. The terms of each such distribution agreement will be described in a prospectus supplement.
We as applicable, may authorize underwriters, dealers or agents to solicit offers by certain purchasers to purchase the securities at the public offering price set forth in the prospectus supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the future. The contracts will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions paid for solicitation of these contracts.
Underwriters and agents may be entitled under agreements entered into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which the underwriters or agents may be required to make.
The prospectus supplement may also set forth whether or not underwriters may over-allot or effect transactions that stabilize, maintain or otherwise affect the market price of the securities at levels above those that might otherwise prevail in the open market, including, for example, by entering stabilizing bids, effecting syndicate covering transactions or imposing penalty bids.
Underwriters and agents may be customers of, engage in transactions with, or perform services for us and our affiliates in the ordinary course of business.
ADSs representing our ordinary shares sold pursuant to the registration statement of which this prospectus is a part will be authorized for listing and trading on the New York Stock Exchange. Any underwriters to whom securities are sold for public offering and sale may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We can make no assurance as to the liquidity of or development or maintenance of trading markets for any of the securities.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference information into this document. This means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be a part of this document, except for any information superseded by information that is included directly in this prospectus or incorporated by reference subsequent to the date of this prospectus.
We incorporate by reference
•our annual report on Form 20-F for the fiscal year ended December 31, 2022 filed on May 16, 2023;
•our Reports on Form 6-K furnished to the SEC on May 16, 2023, May 23, 2023, July 5, 2023, August 14, 2023 and August 15, 2023.
All annual reports we file with the SEC pursuant to the Exchange Act on Form 20-F after the date of this prospectus and prior to termination or expiration of this registration statement shall be deemed incorporated by reference into this prospectus and to be part hereof from the date of filing of such documents. We may incorporate by reference any Form 6-K subsequently submitted to the SEC by identifying in such Form 6-K that it is being incorporated by reference into this prospectus.
Documents incorporated by reference in this prospectus are available from us without charge upon written or oral request, excluding any exhibits to those documents that are not specifically incorporated by reference into those documents. You can obtain documents incorporated by reference in this document by requesting them from:
Jumia Technologies AG
Skalitzer Straße 104
10997 Berlin
Germany
+49 (30) 398 20 34 54
You may also access these documents on our website, investor.jumia.com. The information contained on, or that can be accessed through, our website is not a part of this prospectus. We have included our website address in this prospectus solely as an inactive textual reference.
ENFORCEMENT OF CIVIL LIABILITIES
We are a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany. Our registered offices and most of our assets are located outside of the United States. In addition, all of the members of our management board, three out of eight supervisory board members, our senior management and the experts named herein are residents of Germany or jurisdictions other than the United States. As a result, it may not be possible for you to effect service of process within the United States upon these individuals or upon us or to enforce judgments obtained in U.S. courts based on the civil liability provisions of the U.S. securities laws against us in the United States. Awards of punitive damages in actions brought in the United States or elsewhere are generally not enforceable in Germany. In addition, actions brought in a German court against us or the members of our management board and supervisory board, our senior management and the experts named herein to enforce liabilities based on U.S. securities laws may be subject to certain restrictions; in particular, German courts generally do not award punitive damages. Litigation in Germany is also subject to rules of procedure that differ from the U.S. rules, including with respect to the taking and admissibility of evidence, the conduct of the proceedings and the allocation of costs. Proceedings in Germany would have to be conducted in the German language, and all documents submitted to the court would, in principle, have to be translated into German. For these reasons, it may be difficult for a U.S. investor to bring an original action in a German court predicated upon the civil liability provisions of the U.S. federal securities laws against us, the members of our management board, supervisory board, or senior management and the experts named in this prospectus. In addition, even if a judgment against our company, members of our management board, supervisory board, our senior management or the experts named in this prospectus based on the civil liability provisions of the U.S. federal securities laws is obtained, a U.S. investor may not be able to enforce it in U.S. or German courts.
EXPENSES
The following table sets forth the expenses (other than underwriting discounts and commissions or agency fees and other items constituting underwriters’ or agents’ compensation, if any) expected to be incurred by us in connection with a possible offering of securities registered under this registration statement.
| | | | | |
| Amount |
| SEC registration fee | $ 8,559.73 |
| FINRA filing fee | * |
| Printing and engraving expenses | * |
| Legal fees and expenses | * |
| Accounting fees and expenses | * |
| Miscellaneous costs | * |
| Total | $ * |
* To be provided by a prospectus supplement or a Report on Form 6-K that is incorporated by reference into this prospectus.
LEGAL MATTERS
The validity of the securities offered by this prospectus and any accompanying prospectus supplement will be passed upon for us by Noerr Partnerschaftsgesellschaft mbB.
EXPERTS
The consolidated financial statements of Jumia Technologies AG as of December 31, 2022 and 2021 and for each of the three years in the period ended December 31, 2022 appearing in Jumia Technologies AG’s Annual Report on Form 20-F for the year ended December 31, 2022, and the effectiveness of Jumia Technologies AG’s internal control over financial reporting as of December 31, 2022 have been audited by Ernst & Young S.A., independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
American Depositary Shares
Representing Ordinary Shares
, 2023
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 8. Indemnification of directors and officers
Under German law, we may not, as a general matter, indemnify members of our management board and supervisory board. Certain limited exceptions may apply if the indemnification is in the legitimate interest of our company. We will indemnify our management board and supervisory board members, to the extent permissible under German law, from and against any liabilities arising out of or in connection with their services to us.
We provide directors’ and officers’ liability insurance for the members of our management and supervisory boards against civil liabilities, which they may incur in connection with their activities on behalf of our company. We intend to expand our insurance coverage against such liabilities, including by providing for coverage against liabilities under the Securities Act.
In the underwriting agreement, the underwriters will agree to indemnify, under certain conditions, us, the members of our supervisory board, management board and persons who control our company within the meaning of the Securities Act, against certain liabilities, but only to the extent that such liabilities are caused by information relating to the underwriters furnished to us in writing expressly for use in this registration statement and certain other disclosure documents.
Item 9. Exhibits
Reference is made to the Exhibit Index included herewith which is incorporated herein by reference.
Item 10. Undertakings
(a) The undersigned registrant hereby undertakes:
(1)To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii)To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) (§ 230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(iii)To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) (§ 230.424(b) of this chapter) that is part of the registration statement.
(2)That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)To file a post-effective amendment to the registration statement to include any financial statements required by “Item 8.A. of Form 20-F” at the start of any delayed offering or throughout a continuous offering.
Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3 (§ 239.33 of this chapter), a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Act or § 210.3-19 of this chapter if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.
(5)That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A)Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B)Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(6)That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(iv)Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(v)Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(vi)The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(vii)Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1)For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2)For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act.
EXHIBIT INDEX
The following documents are filed as part of this registration statement:
| | | | | |
| Exhibit Number | Description of Exhibit |
| 1.1* | Form of Underwriting Agreement |
| 3.1 | |
| 3.2 | |
| 3.3 | |
| 4.1 | |
| 4.2 | |
| 5.1** | |
| 10.3 | |
| 10.4 | |
| 10.5 | |
| 10.6 | |
| 10.7 | |
| 10.8 | |
| 10.9** | |
| 21.1 | |
| 23.1** | |
| 23.2** | |
| 24.1** | |
| 107** | |
* To be filed, if necessary, by amendment or furnished on Form 6-K.
** Filed herewith.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Berlin, Federal Republic of Germany, on August 15, 2023.
| | | | | | | | | | | | | | |
| Jumia Technologies AG |
| | | | |
| By | | /s/ Francis Dufay |
| | Name: | | Francis Dufay |
| | Title: | | Chief Executive Officer and Member of the Management Board |
| | | | | | | | | | | | | | |
| | |
| By | | /s/ Antoine Maillet-Mezeray |
| | Name: | | Antoine Maillet-Mezeray |
| | Title: | | Executive Vice President, Finance & Operations and
Member of the Management Board |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Francis Dufay and Antoine Maillet-Mezeray, and each of them, as his or her true and lawful attorneys-in-fact and agents, each with the full power of substitution and re-substitution, for and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and sign any registration statement for the same offering covered by the registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| | | | | | | | | | | | | | |
| | | | |
| Signature | | Title | | Date |
| | |
/s/ Francis Dufay Francis Dufay | | Co-Chief Executive Officer and Member of the Management Board | | August 15, 2023 |
| | |
/s/ Antoine Maillet-Mezeray Antoine Maillet-Mezeray | | Executive Vice President, Finance & Operations and Member of the Management Board | | August 15, 2023 |
SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant to the Securities Act of 1933, as amended, the undersigned, the duly appointed representative in the United States of Jumia Technologies AG has signed this registration statement or amendment thereto in the city of Newark, State of Delaware on August 15, 2023.
| | | | | | | | | | | | | | |
| Puglisi & Associates |
| |
| By | | /s/ Donald J. Puglisi |
| | Name: Donald J. Puglisi | | |
| | Title: Managing Director | | |
Exhibit 107
Calculation of Filing Fee Tables
Form F-3
(Form Type)
Jumia Technologies AG
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities and Carry Forward Securities
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Security Type | Security Class Title | Fee Calculation or Carry Forward Rule | Amount Registered | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offer Price | Fee Rate | Amount of Registration Fee | Carry Forward Form Type | Carry Forward File Number | Carry Forward Initial Effective Date | Filing Fee Previously Paid in Connection with Unsold Securities to be Carried Forward |
| Newly Registered Securities | | | | |
| Fees to be Paid | Equity | Ordinary shares, no par value(1) | 457(a) | 40,455,472 (2) | $1.92(3) | $77,674,506.24(3) | $110.20 per million | $8,559.73 | | | | |
| Total Offering Amounts | | | | $8,559.73 | | | | |
| Total Fees Previously Paid | | | | – | | | | |
| Total Fee Offsets(4) | | | | $8,559.73 | | | | |
| Net Fee Due | | | | $0.00 | | | | |
(1) American Depositary Shares (“ADS”) evidenced by American Depositary Receipts (“ADRs”) issuable upon deposit of ordinary shares have been registered pursuant to a separate registration statement on Form F-6 (File No. 333-230534).
(2) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the ordinary shares being registered hereunder include such indeterminate number of additional ordinary shares as may be issuable as a result of stock splits, stock dividends or similar transactions with respect to the shares being registered hereunder.
(3) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933. The proposed maximum offering price per unit and maximum aggregate offering price are calculated on the basis of $3.83, the average of the high and low sale price of ADSs of the registrant on the New York Stock Exchange on August 11, 2023, which is within five business days prior to the filing of this registration statement, divided by two, the then ordinary share-to-ADS ratio.
(4) See table titled “Fee Offset Claims and Sources.”
Table 2: Fee Offset Claims and Sources
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Registrant or Filer Name | Form or Filing Type | File Number | Initial Filing Date | Filing Date | Fee Offset Claimed | Security Type Associated with Fee Offset Claimed | Security Title Associated with Fee Offset Claimed | Unsold Securities Associated with Fee Offset Claimed | Unsold Aggregate Offering Amount Associated with Fee Offset Claimed | Fee Paid with Fee Offset Source |
| Rule 457(p) |
| Fee Offset Claims | Jumia Technologies AG | F-3 | 333-240016 | July 22, 2020 | N/A | $8,559.73 | Equity | Ordinary shares, no par value(1) | (2) | $65,945,531.59 | |
| Fee Offset Sources | Jumia Technologies AG | F-3 | 333-240016 | | July 22, 2020 | | | | | | $8,559.73 |
(1) ADS evidenced by ADRs issuable upon deposit of ordinary shares have been registered pursuant to a separate registration statement on Form F-6 (File No. 333-230534).
(2) The registrant previously filed a registration statement on Form F-3 (File No. 333-240016), initially filed on July 22, 2020 and declared effective on July 30, 2020 (“Prior Registration Statement”), which registered (i) 36,000,000 ordinary shares, with no par value for issuance by the registrant in connection with the exercise or conversion of certain of its securities (the “Primary Shares”) for a proposed maximum aggregate offering price of $154,440,000.00 and (ii) and 29,702,544 ordinary shares, with no par value for resale by the applicable selling shareholder (the “Secondary Shares”) for a proposed maximum aggregate offering price of $127,423,913.76. The Prior Registration Statement was not fully used and 29,702,544 Secondary Shares were not sold, resulting in unsold aggregate offering amounts of $127,423,913.76. This unused amount results in an available fee offset of $16,539.62 (calculated at the fee rate in effect on the filing date of the Prior Registration Statement), representing approximately 45.2% of the registration fees on the Prior Registration Statement. Pursuant to Rule 457(p) under the Securities Act, the registrant is offsetting $8,559.73 of the fees associated with this registration statement from the filing fee previously paid by the registrant associated with the unsold securities. Accordingly, no additional registration fee is due to be paid at this time. The registrant has terminated any offerings that included the unsold securities under the Prior Registration Statement.
Noerr Partnerschaftsgesellschaft mbB / Börsenstraße 1 / 60313 Frankfurt am Main
Jumia Technologies AG
Skalitzer Straße 104
10997 Berlin
Federal Republic of Germany
Dr. Julian Schulze De la Cruz
Rechtsanwalt
Noerr
Partnerschaftsgesellschaft mbB
Rechtsanwälte Steuerberater Wirtschaftsprüfer
Börsenstraße 1
60313 Frankfurt am Main
Germany
noerr.com
Assistant Carolin Herrmann
T +49 69 971477231 (ext.)
T +49 69 9714770
F +49 69 971477100
Julian.SchulzeDelaCruz@noerr.com
Our Ref: F-0674-2023
JSCH/CHE
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
Frankfurt am Main, August 15, 2023
Dear Sir or Madam,
We are acting as German counsel to Jumia Technologies AG, Berlin, ("Company") a stock corporation organized under the laws of the Federal Republic of Germany ("Germany"), as to matters of German law in connection with the filing of a registration statement on Form F-3 ("Registration Statement") with the Securities and Exchange Commission on August 15, 2023. The purpose of the Registration Statement is to register under the Securities Act of 1933, as amended ("Securities Act"), 40,455,472 new ordinary shares with no-par value, which, upon a potential future conversion into American Depositary Shares evidenced by American depositary receipts ("ADSs"), will represent 20,227,736 ADSs ("Future Shares"), each representing an ownership interest in two ordinary bearer shares of the Company with a notional amount attributable to each ordinary bearer share of € 1.00 per share.
This legal opinion is being furnished to the Company in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is
expressed herein as to any matter pertaining to the contents of the Registration Statement other than as expressly stated herein with respect to the Securities.
I.Scope of Inquiry
For the purpose of rendering this legal opinion, we have examined and relied exclusively on the following documents ("Documents"):
(1)a copy of the current articles of association (Satzung) of the Company with notarial certificate dated June 15, 2023 and as registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Charlottenburg, Germany ("Commercial Register") on June 20, 2023 ("Articles of Association");
(2) a copy of an electronic excerpt from the Commercial Register, docket number HRB 203542 B, relating to the Company dated August 15, 2023; and
(3)a copy of the Registration Statement.
II.Assumptions
For the purpose of rendering this legal opinion, we have assumed without further inquiry, investigations or searches of any facts to verify any of the following assumptions that:
(1)all documents submitted to us as a copy correspond to the respective original and the authenticity of the originals of such copied documents;
(2)all documents examined by us are within the power of, and have been or will be validly authorized and executed by all parties thereto other than the Company and the genuineness of all signatures on all documents submitted to us;
(3)all authorizations, other than those authorizing the Company with respect to which we have received copies of the resolutions, have been or will be validly issued and that none of these authorizations has been revoked;
(4)all documents, including electronic excerpts from the Commercial Register, submitted to us and made as of a specific date, have not been amended, cancelled, or otherwise been altered since that date until the date hereof;
(5)all documents submitted to us in purported final draft form have been, or will be, executed in the form submitted;
(6)the Company will at all times continue to have sufficient authorized capital;
(7)the management board and the supervisory board of the Company will duly pass the relevant resolutions for the issue of the shares in accordance with the Articles of Association and applicable law;
(8)any and all measures, steps, resolutions and declarations relating to the calling and holding of a general meeting of the shareholders of the Company will be complied with and all resolutions relating to capital increases will be valid and effective;
(9)upon issue of any shares, the Company will receive payment in cash of an issue price in accordance with the resolutions and applicable law;
(10)there will be no amendments to the authorized share capital of the Company which would adversely affect the issue of the shares and the conclusions stated in this legal opinion;
(11)the Future Shares will have been (a) issued in the form and manner prescribed by the Articles of Association at the time of issue; and (b) otherwise offered, issued and accepted by their subscribers in accordance with all applicable laws; and (a) 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.
III.Opinion
Based upon the review of the Documents and the assumptions referred to above and subject to (i) the qualifications, statements and limitations referred to below, and (ii) any 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:
Upon subscription and payment for the Future Shares, their issuance in accordance with the German Stock Corporation Act (Aktiengesetz) as well as the relevant decisions of the general meeting of the shareholders of the Company, the management board and the supervisory board of the Company as well as application and registration of a capital increase for the Future Shares with the
Commercial Register, the Future Shares will be validly issued, fully paid-in, non-assessable (nicht nachschusspflichtig) and not subject to any transfer restrictions or rights of preemption (Vorkaufsrecht) under the Articles of Association or applicable provisions of German law except as set forth in the Registration Statement as of the date of such registration.
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 this section III. of this legal opinion.
IV.Qualifications
This legal opinion is subject to the following qualifications:
(1)As to any facts relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others and of public officials.
(2)This legal opinion speaks as of its date and is confined to, and is given on the basis of, the laws of Germany as they exist at the date hereof; it is governed by the laws of Germany. The exclusive place of jurisdiction for any disputes arising under or in connection with this legal opinion is Frankfurt am Main, Germany. We do not assume any obligation to update this legal opinion or to inform you of any changes to facts or laws. Please note that such changes may have retrospective or retroactive effect. We are expressing no opinion as to the effect of the laws of any other jurisdiction than the laws of Germany.
(3)This legal opinion expresses and describes German legal concepts in English and not in their original language and form. Therefore, it cannot be ruled out that due to differences of legal systems some words or phrases may have different connotations than the German words or phrases would have. Where English terms and expressions are used, the meaning to be attributed to such terms and expressions shall be the meaning to be attributed to the equivalent German concepts under German law. Where we have included the relevant German expressions, these shall prevail over their English translation.
(4)This legal opinion is addressed to and solely for the benefit of the Company and is not intended to create third party rights pursuant to Section 328 of the German Civil Code (Bürgerliches Gesetzbuch) (Vertrag zugunsten Dritter) or rights for all benefit of third parties (Vertrag mit Schutzwirkung zugunsten
Dritter) and, except with our prior written consent, is not to be transmitted or disclosed to or used or relied upon by any other person, provided, however, that it may be relied upon by persons entitled to rely on it pursuant to applicable provisions of U.S. federal securities law.
(5)Pursuant to Sections 57 et seq. and 71a of the German Stock Corporation Act (Aktiengesetz) ("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.
(6)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 the Registration Statement (including in documents incorporated into the Registration Statement by reference) or any documents with respect to the shares or the Company.
(7)In this legal opinion, the phrase “non-assessable” means, with respect to the issuance of shares, that a shareholder shall not, in respect of the relevant shares, have any obligation to make further contributions to the Company’s assets (except in exceptional circumstances in which a court may be prepared to pierce or lift the corporate veil) (nicht nachschusspflichtig).
(8)We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to us under the heading "Legal Matters" in the prospectus. 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.
Yours sincerely,
Noerr Partnerschaftsgesellschaft mbB
/s/ Dr. Julian Schulze De la Cruz
Rechtsanwalt
Jumia Technologies AG
Virtual Restricted Stock Unit Program 2023
14 August 2023
– Terms and Conditions –
TABLE OF CONTENTS
Table of Contents 2
Recitals 3
Recitals
(A)The participation of the management and key employees in the economic risks and opportunities of the relevant business operation is an important component of an internationally competitive remuneration system. Jumia has adopted this program in order to strengthen the commitment to Jumia, to attract and retain competent and dedicated individuals whose efforts will result in the growth and profitability of Jumia and to align their interests with the interests of the shareholders in order to increase the value of Jumia.
(B)For this purpose, Jumia Technologies AG (the “Company”) intends to implement a virtual restricted stock unit program 2023 (the “VRSUP 2023”). Under the VRSUP 2023, virtual restricted shares in the Company (each a “Restricted Stock Unit” and together the “Restricted Stock Units”) may be granted to members of the management board of the Company (the “Management Board” and, the members of the Management Board, each an “MB”) and key employees of the Company as well as to members of the management and key employees of companies affiliated with the Company within the meaning of §§ 15 et seq. of the German Stock Corporation Act (Aktiengesetz, the “AktG”) (each an “Affiliated Company” and together the “Affiliated Companies”). Upon vesting (as described in § 3 and § 4 below), and subject to § 5 below, each Restricted Stock Unit shall grant the right to receive cash payments in the amount of the relevant share price of the shares in the Company as described below. Thus, the beneficiaries obtain a right to receive a cash payment, the total amount of which depends on the development of the share price of the shares of the Company. However, a settlement in shares, or American Depositary Shares representing the shares (the “ADS”) respectively, is possible at the discretion of the Company according to the conditions stated in § 5.3.
(C)With resolution dated August 14, 2023 (the “VRSUP Resolution”), the Company’s general meeting (Hauptversammlung) authorized the Management Board, with the consent of the supervisory board of the Company (the “Supervisory Board”), to issue up to 6,500,000 new shares, each with a notional value of EUR 1.00 in the share capital of the Company through the creation of a new authorized capital, in order to provide the Company with an alternative option to settle employee claims under this VRSUP 2023 with shares in the Company instead of a cash payment. The Management Board and the Supervisory Board resolved to grant in total 6,500,000 Restricted Stock Units to the beneficiaries in one or more tranches. The Management Board with respect to selected employees of the Company and with respect to members of the management and selected employees of the Affiliated Companies on behalf of the respective Affiliated Company, and, with respect to members of the Management Board the Supervisory Board, will determine the further details of the VRSUP 2023, in particular the number of Restricted Stock Units granted to a Participant (as defined in § 1.2 below) and the relevant other terms and conditions in accordance with the Rules (as defined in Recital (D) below) set forth in this VRSUP 2023.
(D)These terms and conditions establish the rules (the “Rules”) pursuant to which the Restricted Stock Units under the VRSUP 2023 may be granted and paid.
§1
Eligibility
1.1Under the VRSUP 2023, Restricted Stock Units may be granted only to the following groups of beneficiaries:
1.1.1MBs (“Group 1”);
1.1.2selected employees of the Company (“Group 2”);
1.1.3members of the management of Affiliated Companies (“Group 3”); and
1.1.4selected employees of Affiliated Companies (“Group 4”, and together with Group 1, Group 2 and Group 3, the “Groups”).
Each beneficiary, who is not an MB or a member of the management of an Affiliated Company, must be considered by the Management Board – in its sole discretion– a key expert.
1.2The Management Board, and with respect to MBs the Supervisory Board, will – in its sole discretion – designate the individuals to whom Restricted Stock Units under the VRSUP 2023 will be granted (the “Participants” and each a “Participant”) as well as the amount of Restricted Stock Units to be granted to the respective Participant.
1.3When granting Restricted Stock Units to the MBs, the Supervisory Board will take into account the relation between the value of existing and foreseeable grants under stock option programs of the Company compared to the value of the Restricted Stock Units to be granted to the MBs.
§2
Plan Volume and Grant of Restricted Stock Units
2.1The aggregate number of Restricted Stock Units which may be granted under the VRSUP 2023 amounts to 6,500,000, subject to adjustment and substitution as set forth in § 9. Any Restricted Stock Unit that is forfeited or is cancelled under this VRSUP 2023 may be reallocated or re-granted to any Participant.
Any respective grant may be made to a Participant only on the basis of his/her membership in one of the Groups set forth under § 1.1.1 to § 1.1.4. Participants, who belong to more than one Group at the time of the relevant grant, can only be granted Restricted Stock Units for one Group at that time. The final number of Restricted Stock Units to be acquired by a Participant depends on the Vesting of such Restricted Stock Units (as defined in, and subject to, § 3 below).
2.2The Restricted Stock Units will be granted to each Participant by separate grant agreements (Zuteilungsvereinbarungen), in particular stating the number of offered Restricted Stock Units. The Restricted Stock Units shall be granted to the Participant with economic effect as from the date of the grant of the Restricted Stock Units. Any grant is subject to a continuing and unterminated (ungekündigt) service or employment relationship between the relevant Participant and the Company or an Affiliated Company at the relevant Grant Date (as defined under § 2.5 below).
2.3The number of offered Restricted Stock Units granted to a Participant may be determined by dividing the individual Grant Value by the Average Share Price or by specific designation in a grant agreement. “Grant Value” means a Euro denominated amount granted to the Participant to be used for purposes of participating in the VRSUP 2023. “Average Share Price” means an amount equal to the average of the closing price (Schlusskurs) of the shares (as represented by ADS) of the Company on the New York Stock Exchange (“NYSE”) (or a comparable successor system) (the “Relevant Closing Price”) on the Grant Date (as defined under § 2.5 below). “Trading Day” means a day other than a Saturday or Sunday or public holiday on which NYSE is open for trading. For the avoidance of doubt, there shall be no fractional Restricted Stock Units. In case the division of the Grant Value (as allocated to the VRSUP 2023 on the basis of the Participant’s election) by the Average Share Price results in fractional Restricted Stock Units, the number of offered Restricted Stock Units shall, in any case, be rounded down to the next full number of Restricted Stock Units without compensation.
2.4Restricted Stock Units may be granted to the Participants in one or more tranches
a)until 31 December 2027, and
b)within eight (8) weeks after the publication by the Company of a quarterly financial report, half year report or press release announcing the Company’s annual financial results, but in no event may a grant be made during a Black-Out Period under the Company’s Insider Trading Policy (each such eight-week period a “Grant Period”).
2.5Participants who for the first time enter into a service or employment agreement with the Company or an Affiliated Company can, at the time of signing of the service or employment agreement, be promised a grant of Restricted Stock Units during a Grant Period subsequent to the date of signing such agreement. The date on which a grant becomes effective shall be the date of the relevant grant agreement or a later effective date specified therein (the “Grant Date”).
§3
Vesting
3.1Subject to § 3.2, § 4 and § 7 of these Rules, Restricted Stock Units granted to a Participant will vest at the expiration of a period not less than six months to be specified in the grant agreement. Restricted Stock Units may vest ratably according to a schedule specified in the grant agreement.
3.2Any uninterrupted period during which the employment relationship of the respective Participant with the Company has been suspended (ruhendes Arbeitsverhältnis) without entitlement to continued remuneration (ohne Entgeltfortzahlung) (the “Suspension”) due to e.g. sickness, nursing care (Pflegezeit), military service, sabbatical, unpaid leave of absence or comparable grounds shall suspend the vesting of Restricted Stock Units as described in § 3.1 above. After the end of a Suspension and subject to § 7 below, any unvested Restricted Stock Units will continue to vest in accordance with a later vesting schedule adjusted to reflect the period of the Suspension.
§4
Change of Control
1.1For the purposes of this § 4:
4.1.1“Change of Control” means (i) a transaction or series of related transactions in which a person or entity (other than a wholly-owned direct or indirect subsidiary of the Company) alone or acting in concert with other persons or entities acquires (y) a majority of the shares of the Company outstanding immediately prior to such transaction or series of related transactions or (z) all or substantially all of the Company’s assets; (ii) a merger or another similar business combination transaction of the Company with or into another entity which is not a wholly-owned direct or indirect subsidiary of the Company having an effect similar to the events described under (i) (y) or (z) above; or (iii) an acquisition (other than directly from the Company) of any outstanding voting securities by any person, after which such person (as the term is used for purposes of Section 13(d) or 14(d) of the Exchange Act) has beneficial ownership of twenty-five percent (25%) or more of the then outstanding shares of the Company, other than a transaction approved by the Supervisory Board of the Company;
4.1.2“Change of Control Date” means the day on which a Change of Control occurs.
4.1.3“Relevant Share Price” means (i) if the Change of Control takes place as a result of a voluntary takeover offer, or a mandatory takeover offer is triggered by a Change of Control, the per share price, respectively the price for one or more ADS representing in total an ownership interest in one share, offered to the shareholders of the Company in such takeover offer and (ii) in any other case, the volume weighted average Relevant Closing Price on the 30 consecutive Trading Days prior to the Change of Control Date.
4.1.4“Resignation (or Resign) for Good Reason” shall mean any voluntary termination by written resignation of the employment of any Participant after a Change of Control because of: (i) a material reduction in the Participant’s authority, responsibilities or scope of employment; (2) an assignment of duties to the Participant inconsistent with the Participant’s role at the Company
(including its Subsidiaries) prior to the Change of Control, (3) a reduction in the Participant’s base salary or total incentive compensation; (4) a material reduction in the Participant’s benefits unless such reduction applies to all Participants of comparable rank; or (5) the relocation of the Participant’s primary work location more than fifty (50) miles from the Participant’s primary work location prior to the Change of Control; provided that the Participant’s written notice of voluntary resignation must be tendered within one (1) year after the Change of Control, and shall specify which of the events described in (1) through (5) resulted in the resignation.
1.2In the event of a Change of Control, and notwithstanding any other provision in these Rules to the contrary, the following provisions shall apply to any Restricted Stock Units granted under the VRSUP 2023 unless specifically prohibited under applicable laws, or by the rules and regulations of any applicable governmental agencies or national securities exchanges or quotation systems:
4.2.1 with respect to any Restricted Stock Units granted to an MB, all unvested Restricted Stock Units shall vest immediately with respect to any MB who Resigns for Good Reason or whose employment is terminated without cause within one year after a Change of Control; and
4.2.2 with respect to any Restricted Stock Units granted to any non-MB Participant, all unvested Restricted Stock Units shall vest immediately at the Change of Control Date.
§5
Payment by Company
5.1Restricted Stock Units granted under the VRSUP 2023 entitle the Participant holding such Restricted Stock Units to the receipt of the RSU Value per Share multiplied by the number of Restricted Stock Units which have vested in accordance with § 3 above (the “RSU Value”). Subject to § 7 and § 12 below, the RSU Value for Restricted Stock Units shall be paid in cash to the Participant by the Company, and with respect to Group 3 and Group 4 on behalf of the Affiliated Company, as soon as reasonably practicable following the expiration of a period of five Trading Days after the publication by the Company of its first press release announcing year-end financial results after the vesting date. “RSU Value per Share” means a cash payment per vested Restricted Stock Unit, in an amount equal to the average of the Relevant Closing Price on the first five Trading Days after the publication by the Company of its last quarterly financial results. In the event of a Change of Control, the RSU Value per Share equals the Relevant Share Price.
5.2Any RSU Value may be capped at a maximum amount (Höchstbetrag) agreed with the Participant in the grant agreement, the employment agreement or the service agreement.
5.3The Company shall be entitled, at its sole discretion, and subject to any Insider Trading Rules (as defined in § 12 below), to deliver (in full or in part) shares or ADS instead of any RSU Value to the Participant, provided that the general shareholders‘ meeting of the Company has lawfully resolved on the acquisition and divesture of treasury shares (eigene Aktien) or an authorized capital for such purposes or the Company may lawfully acquire ADS. For the determination of the number of shares to be delivered to the Participant, the Participant shall receive a number of shares equal to the number of Restricted Stock Units stated in the Participant’s grant agreement; and, for the determination of the number of ADS to be delivered to the Participant, the Participant shall receive a number of ADS equal to the equivalent number of ADS stated in the employee’s grant agreement (or one half the number of shares). The Participant is obliged to cooperate with the Company as well as service providers engaged by the Company for purposes of the settlement and take any actions necessary to effect the delivery of such shares or ADS, e.g. in case new Shares are issued; the Participant consents to contribute his payment claim under this VRSUP 2023 to allow for a “net share settlement”. Further, resales of the shares or ADS by a Participant may be limited to sales effected on a stock exchange designated by the Company.
5.4Any statutory charges, such as payroll taxes, employee social security contributions or similar or other taxes and duties (if any), shall be borne by the Participant. To the extent due, the Company will withhold such charges from the RSU Value and pay them to the competent authorities. In case the Company is authorized to and chooses to deliver shares or ADS instead of any RSU Value, the Company will also withhold and pay any statutory charges and determine the number of shares or ADS to be delivered after deducting those charges.
§6
Extraordinary Events or Developments
6.1“Extraordinary Events or Developments” means – subject to mandatory law – situations where the potential gain realized by the Participant upon the payment of the Restricted Stock Units (i) is caused by unusual external events and developments and (ii) cannot be reasonably justified under any circumstances by the development or business perspective of the Company, also taking into account international remuneration and incentive standards. For the avoidance of doubt, the payment of Restricted Stock Units, as such, that results in an economic benefit for the Participant, does not constitute an Extraordinary Event or Development.
6.2In case of Extraordinary Events or Developments, the Management Board, and with respect to MBs the Supervisory Board, is entitled to adjust in its discretion (pflichtgemäßes Ermessen) the payout, in order to adequately limit (begrenzen) or eliminate, as the case may be, the effects of such Extraordinary Events or Developments. For the avoidance of doubt, such adjustment shall not result in a reduction or withdrawal of the Participant’s economic benefit achieved under the VRSUP 2023 prior to the occurrence of such Extraordinary Events or Developments. In any such case, § 87 para. 1 AktG must be observed.
§7
Consequences of a Termination of Office or Employment Relationship
In the event the Participant’s office as member of the Management Board or the Participant’s service or employment relationship with the Company or an Affiliated Company (as the case may be) ends
7.1due to:
7.1.1(i) the Participant’s voluntary resignation from office (Amtsniederlegung) prior to the regular end of his/her term of office or the termination of the Participant’s service or employment relationship with the Company or an Affiliated Company and (ii) the Participant taking up employment with or assuming an active management position or a remunerated consultant role with a direct competitor within twelve months after the effective date of the resignation or termination; or
7.1.2in case of an MB, a revocation from office (Widerruf der Bestellung) by the Company in circumstances where there are grounds justifying a termination of the service relationship for good cause within the meaning of § 626 of the German Civil Code (Bürgerliches Gesetzbuch) (“BGB”) irrespective of the preclusion period pursuant to § 626 para. 2 BGB; or
7.1.3in case of any Participant not being an MB, the termination of the service or employment relationship with the Company or an Affiliated Company, as the case may be, where there are grounds justifying a termination of the service or employment relationship for good cause within the meaning of § 626 BGB (or the equivalent provision of applicable foreign law) irrespective of the preclusion period pursuant to § 626 para. 2 BGB (or the equivalent provision of applicable foreign law) or other termination for cause as defined in your employment contract and determined by the Company;
(such Participant a “Bad Leaver”) all unvested and vested but not yet paid Restricted Stock Units granted to the Bad Leaver (whether held by him/her or any third party) will be forfeited without entitlement to compensation; or
7.2due to any reason not qualifying the relevant Participant as a Bad Leaver (such Participant a “Good Leaver”), such Good Leaver will retain all Restricted Stock Units already vested pursuant to § 3 and not yet paid on the earlier of (i) the date of his/her effective date of termination of office (in relation to MBs or members of the management of Affiliated Companies), if applicable, or (ii) the date of his/her effective date of termination of employment (in relation to selected employees) (in either case the “Termination Date”). The terms and conditions set forth in these Rules will continue to apply unchanged to the Restricted Stock Units retained pursuant to this § 7.2. All Restricted Stock Units which are not retained pursuant to this § 7.2 are forfeited without entitlement to compensation. This § 7.2 shall not apply, and the other terms and conditions set forth in these Rules will continue to apply unchanged, in case the Participant, within three months of the Termination Date, enters into a new service or employment relationship with the Company or an Affiliated Company or is appointed as member of the Management Board.
7.3For the avoidance of doubt: other than with respect to the Management Board, any cash settlement payments made or share or ADS transfers executed relating to the fulfillment of Restricted Stock Units prior to the Termination Date shall remain unaffected by the forfeiture of Restricted Stock Units pursuant to § 7.1 or § 7.2 last sentence (no “claw-back”).
§8
Transferability and Hedging
Except for the transfer (i) by will or applicable laws of decent upon the death of the relevant Participant or (ii) with the prior written consent by the Company, neither the Restricted Stock Units nor the rights of any Participant under any Restricted Stock Unit or under the VRSUP 2023 are assignable or otherwise transferable. A Participant shall not hedge any interest, risk or position in any Restricted Share Unit.
§9
Adjustment in Case of Specific Capital and Other Structural Measures
9.1“Adjustment Event” means any capital measures (Kapitalmaßnahmen) and/or other structural measures (Strukturmaßnahmen) carried out by the Company, including capital increase, capital reduction, share split, reverse share split, merger, split-up, split-off, spin-off, issuance of convertible bonds or option bonds.
9.2In the event of:
9.2.1a capital increase from Company funds by the issuance of new shares (Kapitalerhöhung aus Gesellschaftsmitteln);
9.2.2a reduction in the number of shares by merging Shares without capital reduction (reverse share split) or an increase in the number of Shares without capital increase (share split);
9.2.3a capital reduction (Kapitalherabsetzung) with a change in the total number of Shares issued by the Company; or
9.2.4any other Adjustment Event having an effect similar to any of the foregoing;
the Management Board, and with respect to MBs the Supervisory Board, shall establish financial equality for the Participant in order to prevent that such Adjustment Event results in a dilution or enlargement of the benefits or potential benefits intended to be made available under the outstanding Restricted Stock Units. In such an Adjustment Event the financial equality shall preferably be established by adjusting the number of Restricted Stock Units.
9.3For the avoidance of doubt, no adjustment pursuant to § 9.2 shall occur in the event of:
9.3.1a capital increase from Company funds without the issue of new shares (Kapitalerhöhung aus Gesellschaftsmitteln ohne Ausgabe neuer Aktien); or
9.3.2a capital reduction without a change in the total number of Shares issued by the Company.
9.4If an adjustment occurs in accordance with this § 9, fractions of Restricted Stock Units will not be granted nor will they be compensated by a payment in cash.
9.5For the avoidance of doubt, § 10 para. 1 AktG applies mutatis mutandis to Restricted Stock Units which have been adjusted pursuant to this § 9.
§10
Limitation of Liability
10.1Neither the Company nor any Affiliated Company (or any of its respective directors, officers, employees, agents or advisors):
10.1.1assumes any responsibility or liability for the development of the value or market price of the Shares;
10.1.2warrants, assures or guarantees any increase in value of the Shares; or
10.1.3warrants, assures or guarantees a profit of the Participant from the VRSUP 2023 or any Restricted Stock Units granted thereunder.
10.2Each Participant declares with his/her participation in the VRSUP 2023 that the participation is voluntary. Each Participant is aware of the fact that he/she alone bears the risk of a decrease in or total loss of value of his/her investments. Each Participant accepts the offer to participate in the VRSUP 2023 at his/her own risk and assumes any liability relating thereto.
10.3Each Participant is responsible for obtaining legal, tax and any other necessary advice before participating in the VRSUP 2023 and for evaluating the tax effects connected with the VRSUP 2023. Each Participant accepts and declares that he or she has not been advised by or on behalf of the Company or its Representatives with respect to his or her participation in the VRSUP 2023 (in particular, regarding legal and tax issues of such participation).
§11
Taxes, Social Security and Costs
11.1All taxes (including payroll taxes), social security contributions, further duties and costs accrued by the Participant in connection with his or her participation in the VRSUP 2023 shall be borne by the Participant. Each Participant is obliged to pay taxes relating to the Restricted Stock Units paid under the VRSUP 2023, or relating to a transfer of such options by the Participant to a third party, to the competent tax authorities. Each Participant shall fully indemnify the Company or Affiliated Company in respect of all such liabilities and obligations against tax authorities.
11.2The employer of the Participant is entitled, if required by statutory law, to withhold payroll tax or any other taxes or duties or social security contributions to be paid by (or on behalf and account of) the Participant. This may apply, in the Company’s sole discretion, even after termination of the employment of the Participant with the Company or Affiliated Company. The Company or Affiliated Company is entitled to demand the full cooperation of the Participant even after his/her leave with respect to the withholding of taxes, social security contributions, other duties and costs in connection with the VRSUP 2023. The Participant undertakes to fully co-operate with the Company or Affiliated Company.
11.3Withholdings mentioned above do not release the Participant from his/her responsibility and obligation to pay all taxes, social contributions, further duties and costs being due and accruing in connection with his/her participation in the VRSUP 2023 or the grant or transfer of any Restricted Stock Units.
§12
Insider Trading, Black-out Periods and Securities Law Requirements
Any transaction in the Restricted Stock Units (each a “Transaction”) must be conducted in compliance with (i) all applicable insider trading laws and regulations, and (ii) all provisions of any insider trading rules established by the Company, including the Company’s Insider Trading Policy ((i) and (ii) together the “Insider Trading Rules”). Each Participant is personally responsible for informing himself about, and acting in full compliance with, all applicable Insider Trading Rules. Any individual non-compliance with applicable Insider Trading Rules may lead to the imposition of civil and criminal penalties (as the case may be).
In order to minimize the potential for prohibited insider trading, the Management Board, and with respect to MBs the Supervisory Board, may establish in its sole discretion periods from time to time during which the Participant may not engage in transactions involving the Restricted Stock Units and/or the shares and/or the ADS (each such period a “Black-Out Period”).
The obligation of the Company to issue any securities and to settle any awards under the VRSUP 2023 shall be subject to all applicable laws, rules, and regulations, and to such approvals by governmental agencies as may be required. Notwithstanding any terms or conditions of any grant to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any securities unless such securities have been properly registered pursuant to the U.S. Securities Act or unless the Company is satisfied that such securities may be offered or sold without such registration pursuant to an available exemption therefrom and the terms and conditions of such exemption have been fully complied with. The Company shall be under no obligation to register for sale under the U.S. Securities Act any of the securities to be offered or sold under the VRSUP 2023. The Company may restrict the transfer of securities issued pursuant to the VRSUP 2023 in such a
manner as it deems advisable to ensure the availability, or facilitate compliance with, of any exemption from the registration requirements the U.S. Securities Act or any other applicable laws.
The Company or the Third Party Service Provider, as the case may be, may cancel or delay the conversion to ADS or cash payment of a grant under the VRSUP 2023 or any portion thereof if it determines, in its sole discretion, that legal or contractual restrictions and/or blockage and/or other market considerations would make the Company’s acquisition of securities from the public markets, the Company’s issuance of securities to the Participant, the Participant’s acquisition of securities from the Company and/or the Participant’s sale of securities to the public markets, illegal, impracticable or inadvisable. If the Company or the Third Party Service Provider, as the case may be, determines to cancel all or any portion of a grant in accordance with the foregoing, the Company shall pay to the Participant an amount equal to the excess of (A) the aggregate fair market value of the securities subject to such grant or portion thereof canceled (determined as of the applicable exercise date, or the date that the securities would have been vested or delivered, as applicable), over (B) the aggregate exercise price or base amount or any amount payable as a condition of delivery of securities. Such amount shall be delivered to the Participant as soon as practicable following the cancellation of such grant or portion thereof.
§13
Form Requirements, Notices
13.1Any legal statements and other notices in connection with the VRSUP 2023 (collectively the “Notices”) shall be made in text form (Textform) pursuant to § 126b BGB unless any other specific form is required by mandatory law or these Rules.
13.2Any Notice to be delivered to the Company shall be addressed as follows:
13.2.1in case of MBs: by mail to Jumia Technologies AG, Attn. Chairperson of the Supervisory Board (currently Jonathan David Klein), Skalitzer Straße 104, 10997 Berlin, Germany; and by email (attached as pdf-copy) to jonathan.klein@gettyimages.com; and
13.2.2in any other case: by mail to Jumia Technologies AG, Attn. CEO Francis Dufay, Skalitzer Straße 104, 10997 Berlin, Germany; and by email (attached as pdf-copy) to francis.dufay@jumia.com.
The Company shall communicate changes in the address set forth in the previous sentence as soon as possible to the Participants. In the absence of such communication, the address stated above shall remain in place.
13.3Any Notice to be given to the Participant may be served by being handed to him/her personally or by being sent to him or her at his or her home address shown in the records of the Company. The Participant shall communicate changes in his or her home address as soon as possible to the Company.
§14
Data Protection
14.1By participating in the VRSUP 2023 each Participant expressly consents to the collection, storage, usage, transfer and processing of personal information provided by the Participant to the Company or a third party employed or contracted by the Company to administer or assist with the administration or implementation of the VRSUP 2023 (the “Third Party Service Provider”), solely for all purposes relating to the implementation, operation and administration of the VRSUP 2023. These include, but are not limited to:
14.1.1administering and maintaining Participants’ records;
14.1.2providing information about the Participant to a Third Party Service Provider; and
14.1.3transferring information about the Participant to a Company’s or a Third Party Service Provider’s premises in a country or territory that may not provide the same statutory protection for the information as the Participant’s home country to the extent such transfer is required to implement, operate or administer the VRSUP 2023.
14.2The Participant is entitled to a copy of the personal information held about him/her and information about the purpose of the collection, storage, usage, transfer and processing of the personal information. The Participant has the right to have the personal information corrected in case of any inaccurateness. Any rights of the Participant pursuant to the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016) remain unaffected.
§15
Governing Law and Jurisdiction
15.1Subject to § 16.1, the VRSUP 2023, any Restricted Stock Units granted thereunder and these Rules shall be exclusively governed by, and be construed in accordance with, the laws of the Federal Republic of Germany, without regard to principles of conflicts of laws.
15.2Any dispute, controversy or claim arising from or in connection with the VRSUP 2023, any Restricted Stock Units granted thereunder or these Rules or their validity shall be decided upon to the extent legally permissible by the competent courts in Berlin, Germany.
§16
Final Provisions
16.1The grant of any Restricted Stock Units and any payment to a Participant are subject to local law review, especially labor law and tax review, in the jurisdiction applicable to such Participant, following which, if necessary, the provisions of this VRSUP 2023 may be adjusted for such Participant to achieve a result which is economically equivalent to the relevant Restricted Stock Units or payment. The provisions of this VRSUP 2023 may also be adjusted if necessary or if advantageous for the Company, provided that the result for the Participants is economically equivalent to the relevant Restricted Stock Units or payment and in compliance with applicable laws.
16.2For the avoidance of doubt, the Restricted Stock Units do not constitute a participation in the Company or any Affiliated Company and in particular do not grant any information, participation, voting, profit sharing or other shareholders’ rights.
16.3The Restricted Stock Units are granted on a voluntary basis. Even a recurrent grant of Restricted Stock Units to individual Participants does not constitute any claim for a further allowance of Restricted Stock Units (keine betriebliche Übung).
16.4Unless otherwise explicitly provided for in these Rules, the Participant shall not be entitled to assign any rights or claims under the VRSUP 2023 and these Rules without the written consent of the Company.
16.5In these Rules, the headings are inserted for convenience only and shall not affect the interpretation of these Rules; where a German term has been inserted in quotation marks and/or italics it alone (and not the English term to which it relates) shall be authoritative for the purpose of the interpretation of the relevant English term in these Rules. The terms “including” and “in particular” shall always mean “including, without limitation” and “in particular, without limitation”, respectively. Any reference made in these Rules to any clauses without further indication of a law, an agreement or another document shall mean clauses of these Rules.
16.6In the event that one or more provisions of these Rules shall, or shall be deemed to, be invalid or unenforceable, the validity and enforceability of the other provisions of these Rules shall not be affected thereby. In such case, the Company, the Affiliated Company and the Participant agree to recognize and give effect to such valid and enforceable provision or provisions, which correspond as closely as possible with the commercial intent of the parties. The same shall apply in the event that these Rules contain any unintended gaps (unbeabsichtigte Lücken).
Berlin, August 14, 2023
Jumia Technologies AG on behalf of Jumia
The Supervisory Board The Management Board
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form F-3) and related Prospectus of Jumia Technologies AG for the registration of American Depositary Shares and to the incorporation by reference therein of our reports dated May 16, 2023, with respect to the consolidated financial statements of Jumia Technologies AG, and the effectiveness of internal control over financial reporting of Jumia Technologies AG, included in its Annual Report (Form 20-F) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
/s/ Ernst & Young S.A.
Luxembourg, Grand Duchy of Luxembourg
August 15, 2023
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