Partnership agreement. Gas discharge lamps for use in private households

Transcription

1 Retourlogistik und Service GmbH Non-binding translation Partnership agreement Current as of Gas discharge lamps for use in private households The Act Governing the Sale, Return and Environmentally Sound Disposal of Electrical and Electronic Equipment (Gesetz über das Inverkehrbringen, die Rücknahme und die umweltverträgliche Entsorgung von Elektro- und Elektronikgeräten; ElektroG) in 6 para. 3 requires manufacturers as defined in 3 para. 12 clause 2 ElektroG ( manufacturers ) to provide evidence of at least once per annum a guarantee for the event of insolvency, to guarantee financing of the return and disposal of the electrical and electronic equipment which is placed on the market for use in private households. In order to meet such purpose and to provide manufacturers with a practicable and economically feasible opportunity to issue such guarantees, the manufacturers listed in appendix 1 ( partners ) herewith joined forces in the form of a partnership ( partnership ). It is a special characteristic of the partnership that already at the time of placing the units on the market, an external security collateral provider issues a guarantee for each financial year for the event of insolvency to cover the partners number of units; such guarantee covers the entire average life span of the respective type of device (in acc. with EAR02-003). 1 Name, legal form, seat, financial year 1) The partnership is a civil law partnership. 2) The partnership acts under the name of Osram GmbH, Philips GmbH und andere GbR and the additional name Garantiegesellschaft Lampen 3) The partnership s financial year is the calendar year. 4) The partnership s seat is Munich. 2 Purpose of the partnership 1) Purpose of the partnership is to form an association of mutual solidarity with the objective that by joining the partnership, every partner s individual obligation to provide evidence of a guarantee in the meaning of 6 para. 3 clause 1 ElektroG is met by participating in a suitable system.

2 Retourlogistik und Service GmbH 2) Admission to the partnership is open without discrimination to any manufacturers of Gas discharge lamps for use in private households in acc. with 2 para. 1 no. 5, 15 para. 1 no. 3 ElektroG in conj. w. the EAR rules EAR ( lamps ), as amended, if they participate in the system for calculating returns in accordance with 14 para. 5 clause 3 no. 2 ElektroG. 3) The partnership does not intent to realise any profit. Nevertheless if a profit develops, then it is distributed to the partners, in relationship of the basic amount that has been announced for the year. The partners can also decide,on proposal of the partner committee, to put the profit totally or partly into an revenue reserve. 3 Liability of the partnership / reinsurance 1) The partnership is required to take out suitable reinsurance for the event of insolvency for each financial year by the 15th of November of the previous year. In order to meet such obligation, the partnership shall enter into an agreement with an institutional guarantor, under which agreement the guarantor shall provide an unlimited guarantee for the total guaranteed amount of all partners for the period, which must be secured in accordance with the EAR rules, as amended (currently EAR average life span of the devices). The respective total guarantee amount is computed based on the future disposal costs for the total number of units of lamps placed on the market by the partners during the respective financial year in accordance with the currently applicable EAR rules (EAR average life span of the devices). The method for computing the total guarantee amount for each financial year is shown in appendix 2 to this agreement. The administrative unit ( 10 of this agreement) shall determine the amount of each partner s individual guarantee based on the above computation method and shall report such amount to the competent authorities or to the Foundation Elektro-Altgeräte Register (EAR). In case of any changes to the data underlying such computation, the guarantee shall be adjusted accordingly. The term of the respective guarantee shall end in each case 2 weeks after expiration of the average life span (EAR average life span of the devices), starting from the end of the respective financial year, during which the devices had been placed on the market, for which the cover had been provided. The above shall lapse upon expiration of the guarantee. If the competent authorities or the Foundation Elektro-Altgeräte Register (EAR) determine that a guarantee event has occurred (cf. appendix 7, Sec. 2 b), then the respective guarantees shall be used by the trustee depending on their due dates (trust agreement cf. appendix 6) and shall be utilized appropriately. The costs for procurement and maintenance as well as management of such guarantee shall be borne by the partnership.

3 Retourlogistik und Service GmbH 2) In addition, the partnership shall in a legally binding form exclude any liability on the part of the partners vis-à-vis third parties. The partnership shall be liable vis-à-vis the above only with its corporate assets. When representing the partnership, the partners committee ( 12) or the administrative unit ( 10) shall in any event stipulate such limitation of liability in a legally binding form. 4 Obligations on the part of the partners 1) The partners are required to pay an annual contribution to the partnership. Such contribution is used to fund: a) the costs of the partnership s business activities, b) the costs of the guarantee in accordance with 3 para. 1, c) the costs of the trustee (cf. appendix 6) d) building up reasonable partnership assets. 2) The amount of the contribution to be paid by the individual partners in each case depends on the number of lamps placed on the market by the relevant partner during the current calendar year (basic registration volume according to the registration with the competent authorities or the Foundation Elektro-Altgeräte Register (EAR)). For this purpose, the partnership s administrative unit requests on behalf of the partnership the relevant data from the partner. It will keep such data confidential and will notify each partner only about the amount of its own contribution. 3) The basis for the computation of the contribution for the first year is shown in appendix 2. In addition to the costs for the guarantee, the contribution also includes the costs of management and of the trustee. The administrative unit proposes the contribution rate for subsequent years to the partners committee, which will determine the amount. 4) The contribution shall be payable each year in advance. 5 Internal relationship of the partners 1) If the partnership s assets are not sufficient, each partner shall in the internal relationship be liable for the partnership s obligations in proportion to the share of its sales of lamps of the total sales of lamps by all partners. The respective EAR basic registration volume for the calendar year shall be decisive. The partnership s administrative unit shall request the relevant data from the partners on behalf of the partnership. It will keep such data in confidence and in the event of liability will notify each partner only about its own portion of the liability amount.

4 Retourlogistik und Service GmbH 2) If a partnership fails to meets its obligation to bear its portion of the obligations, the administrative unit shall enforce the other partners compensation claims on their behalf in court, and if applicable, will distribute such amount. The partnership may make the continued participation of the relevant partner dependant on providing a guarantee for the event of insolvency, in an amount that is sufficient to secure its obligations vis-à-vis the partnership. 6 Admission of a partner 1) The partnership is open to all any manufacturers of lamps on the same terms. Conditions for admission are set forth in appendix 3 and in the application for admission in appendix ) Once all conditions for admission have been met, the partners committee shall decide about the admission of partners and shall be entitled to make and receive on behalf of the partners any statements required for such admission. The partners committee may also authorise the administrative unit to do so. 3) Upon joining the partnership, each partner shall pay a one-off financing contribution. Such one-off payment shall be applied as the new partner s contribution to the costs of setting up the system and to build up the partnership s assets. The amount of such contribution follows from appendix 4. Upon a proposal by the administrative unit, the financing amount may be redetermined by the partners committee with effect for any new partners joining in the future. The financing contribution shall in each case be payable at the time of joining the partnership. 4) The partnership shall notify the competent authorities or the Foundation Elektro-Altgeräte (EAR) without delay about new partners. In doing so, the partnership shall be required to provide evidence that the new partner s number of lamp units is covered by the guarantee in accordance with 3 para. 7 Withdrawal of a partner 1) Admission to the partnership shall be for an unlimited period of time. 2) By giving 3 years notice effective from the end of a calendar year, each partner may terminate in writing, for the first time effective from After withdrawing from the partnership, each partner shall be required to participate in the system for calculating returns in accordance with 14 para. 5 clause 3 no. 2 ElektroG for a period equivalent to the average life span of the lamps placed on the market after 24 November 2005, which life span follows from rule EAR (currently 6 years), and to provide the partnership with the relevant evidence if it continues to place lamps on the German market. In case of violation of the above obligation, the withdrawing partner shall indemnify the partnership

5 Retourlogistik und Service GmbH and its respective partners for any third party claims and compensate them for any damage caused by such violation. 3) The termination or amicable withdrawal shall not result in the dissolution of the partnership. It shall continue with the remaining partners. The shares in the partnership shall by accrued by the remaining partners. 4) The termination by or amicable withdrawal of a partner shall not affect the guarantee, which has already been provided in accordance with 3 para. 1 and which shall continue in full force and effect until the end of its term for the average life span of the number of lamp units of the respective type placed on the market by the withdrawn partner in accordance with rule EAR and shall remain with the trustee for recourse and adequate utilisation. 5) There shall be no apportionment of the partnership s assets. Any reimbursement of financing / other contributions shall be excluded. 6) 6 para. 4 shall apply accordingly. 8 Expulsion of a partner 1) The partners committee may expel any partner for good cause with immediate effect. The contribution shall cover the guarantee of the outgoing partner for the remaining term of the guarantee. 2) In particular, the following shall constitute a good cause: failure to register or loss of registration (issuing of a relevant order by the competent authorities or the Foundation Elektro-Altgeräte Register (EAR), failure to meet claims of the partnership in spite of written reminder, overindebtedness, insolvency, or institution of insolvency proceedings. 3) The provisions of 7 para. 3, 4, 5 and 6 shall apply accordingly. 9 Bodies The bodies of the partnership are: - the administrative unit, - the partners committee, - the meeting of the partners.

6 Retourlogistik und Service GmbH 10 Administrative unit 1) According to para. 2, the tasks of the administrative unit may be transferred to a natural or legal person who is not a partner. 2) Designation of the administrative unit as well as the revocation thereof shall be made by the partners committee. The same shall apply to signing, amendment, or termination of agreements with the administrative unit, in particular of service or employment agreements. 3) The partners committee shall be responsible for establishing the rules of procedure of the administrative unit. 11 Duties of the administrative unit 1) The administrative unit shall be required vis-à-vis the partnership to observe the restrictions in respect of exercising its powers, as established by law, the articles of association, resolutions passed by the partners committee, or by the partners, or by the rules of procedure of the administrative unit. It shall follow any instructions issued by the meeting of the partners or by the partners committee. 2) The administrative unit shall keep any matters pertaining only to individual partners in confidence; in particular, it may not provide other partners with information about sales, prices, or market shares of individual partners. 3) For the following actions, the administrative unit shall require the prior approval of the partners committee: (a) preparation of the annual economic plan, which shall be presented to the partners committee in the last quarter of the previous year; (b) acquisition, disposal, or encumbrance of real property or parts thereof or of leasehold rights; (c) acquisition, disposal, or encumbrance of investments in other companies (including the establishment of subsidiaries and joint ventures); (d) establishment of branch offices and fundamental changes to the organisation; (e) hiring of employees as well as introduction of or changes to personnel or social measures such as new wage or salary systems, old age pension plans, or other fundamental changes to the employment agreements;

7 Retourlogistik und Service GmbH (f) major changes to the service programme and introduction of new services; (g) standards of assessment for determining the financing and other contributions payable by the partners to the partnership; (h) taking out or granting of loans if not covered by the annual economic plan; (i) agreements regarding the lease of buildings or parts thereof with a term exceeding one year if not covered by the annual economic plan; (j) signing, amendment and termination of business managing agreements, acquisition or disposal of shares in the partnership; (k) procurement or disposal of assets if the total value during the financial year exceeds 50,000 (or 10 % of the approved annual investment volume if this amount is higher) if not covered by the annual economic plan; (l) signing of lease agreements, where the stipulated lease instalments in total exceed an amount of 30,000 if not covered by the annual economic plan; (m) public statements, which affect the principles of the partnership s business policies; (n) institution and settlement of legal disputes if it is to be expected that they will result in an increased risk or if major fundamental matters are concerned; (o) any other matters exceeding the normal course of business. 12 Partners committee 1) The partnership has a partners committee. Such committee shall adopt rules of procedure. 2) The partners committee shall have four members. Members are the two subscribers to the partnership agreement who in terms of units have the highest market share of all lamps in Germany requiring disposal ( original members ). The two other members shall be elected by the meeting of the partners from among the remaining partners, whereby the members mentioned in clause 1 shall not have a vote ( elected members ). A simple majority of cast votes is required for election. 3) The term in office of the elected member of the partners committee shall in each case be three complete financial years starting from the commencement of their term in office. Members may be reappointed or reelected.

8 Retourlogistik und Service GmbH 4) The members term in office shall end: a) by expiration of time; b) by resignation; c) if a partner becomes insolvent; d) if under applicable laws or regulations or by court decision a partner loses its ability to hold such office; e) in case of elected members, by resolution of the meeting of the partners upon request by no less than 10 % of all partners. 5) Each member of the partners committee shall appoint a permanent representative, who shall perform the members tasks in the partners committee and who shall represent the member in the committee. Such appointment and dismissal shall in each case be reported in writing to the chairperson of the partners committee. 13 Tasks of the partners committee 1) The partners committee shall be responsible for management and representation of the partnership; it may delegate its tasks to the administrative unit without any restrictions in terms of time or scope. In particular, such tasks shall include the preparation and monitoring of compliance with the general principles of business policies as well as the adoption and amendment of rules of procedure for the administrative unit. The committee shall also advice the administrative unit in performing ongoing business operations. The partners committee shall decide any matters presented to it by the administrative unit in accordance with 11 para. (1) or in accordance with 11 para. 3. In addition, the partners committee shall be entitled to the extent permitted by law or partnership agreement to carry out any tasks or exercise any power due to the meeting of the partners. The meeting of the partners may transfer additional tasks to the partners committee. 2) The members of the partners committee and their representatives shall keep any matters pertaining only to individual partners in confidence; in particular, they may not provide other partners with information about sales, prices, or market shares of individual partners.

9 Retourlogistik und Service GmbH 14 Representation 1) The partnership shall in each case be represented jointly by two members of the partners committee, usually by the chairperson and his/her deputy, or if they are prevented, by the other members. To the extent permitted by law, the partners committee may also grant power of attorney to the members of the administrative unit. 2) In other respects, the partnership shall be represented by other authorised signatories as determined in detail by a resolution of the partners committee. 15 Chairmanship of the partners committee 1) The partners committee shall have one chairperson and his/her deputy. The subscriber to the partnership agreement, who in terms of units has the highest market share of all lamps in Germany requiring disposal, shall be the chairperson, the one with the secondhighest market share shall be the deputy. 2) The chairperson s deputy shall in all cases, where he/she represents the prevented chairperson have the same rights as the chairperson. 16 Calling of meetings of the partners committee 1) Meetings of the partners committee shall be held at least once per year and also, when deemed necessary by the chairperson or when requested by a partner, providing the agenda; meetings may also be held in the form of conference calls. Meetings shall be called by the chairperson, or if he/she is prevented by his/her deputy, observing a notice period of no less than two weeks. The chairperson shall also determine the agenda of such meeting and shall notify partners about the above no later than five days prior to the meeting. The above time periods may be reduced in urgent cases if no member of the partners committee objects. Meetings may be called in writing, by , telecopy, telegraph, or fax. The date of sending of the letter calling a meeting (in case of a signedfor letter the date as postmarked, otherwise the date of the , telecopy, or telegraph) and the date of the meeting shall not be taken into account in such calculation. In other respects, the provisions of the partners committee s rules of procedure shall apply in respect of calling a meeting of the partners committee. 2) Any resolutions passed in a meeting without observing the provisions in para. 1 regarding calling and procedure of a meeting shall be ineffective, unless they have been adopted unanimously by all members of the partners committee.

10 Retourlogistik und Service GmbH 17 Meetings of the partners committee 1) Meetings of the partners committee shall be chaired by the chairperson and in case of his/her being prevented, by his/her deputy. 2) The management of the administrative unit shall participate in the meetings of the partners committee, unless determined otherwise in the individual case by the partners committee or by its chairperson. 3) The partners committee shall have a quorum if all members of which it is required to consist participate in passing the resolution. The passing of a resolution on any item of the agenda that had not been included in the call for the meeting and about which the members of the partners committee furthermore had not been notified no later than five business days prior to the meeting, shall be permitted only if no member of the partners committee objects. If the partners committee is not competent to pass a resolution, it may call another meeting with a notice period of no less than five business days. Such meeting shall be competent to pass a resolution on any items of the agenda of the previous meeting, regardless of the number of members participating in the meeting. 4) Absent members of the partners committee may be represented in the meeting by any member of the partners committee who is personally present in such meeting; however, any present member may represent only one absent member. Members who are represented by another member participate in the passing of resolutions in the meaning of para. (3). 5) The passing of resolutions by mail or fax shall be permitted only if all members approve of such procedure or if they cast their votes in such way. 6) Resolutions shall be passed by an absolute majority of cast votes; abstentions shall not be counted as cast votes. Each member of the committee shall have one vote. In the event of a parity of votes, the chairperson of the partners committee shall cast the deciding vote. 18 Record Meetings of the partners committee shall be recorded by the administrative unit, which record shall be signed by the chairperson of the respective meeting and by the administrative unit. 19 Reimbursement of expenses of members of the partners committee The members of the partners committee shall be reimbursed for their expenses.

11 Retourlogistik und Service GmbH 20 Competence of the partners committee The partners committee shall be responsible for passing resolutions on any matters that have been assigned to the partners committee under this agreement or by law, in particular for (a) amendments to the partnership agreement upon proposal by the partners committee; (b) adoption of the annual accounts and appropriation of the profits for the year upon proposal by the partners committee; (c) formal approval of the actions of the members of the partners committee; (d) merger, conversion, or dissolution of the partnership; (e) appointment and dismissal of liquidators. 21 Calling of meeting of the partners 1) The ordinary meeting of the partners shall be convened annually within the first eight months of the financial year. Otherwise, the meeting of the partners shall be called if requested by the administrative unit, at least 25 % of all partners, or by a member of the partners committee, providing the items of the agenda. 2) The meeting of the partners shall be called by the chairperson of the partners committee. The meeting of the partners shall be called with no less than two weeks notice prior to the date of the meeting, providing information about the date and time, the place, and the items of the agenda, by way of signed-for letter, , telecopy, fax, or telegraph, unless such notice period of two weeks is reduced upon the agreement of all partners. The date of sending of the letter calling a meeting (in case of a signed-for letter the date as postmarked, otherwise the date of the , telecopy, fax, or telegraph) and the date of the meeting shall not be taken into account in such calculation. 3) A meeting shall not be required to be held if all partners have in advance in writing, by telegraph, or by or telecopy, agreed to a different procedure for casting votes or if they participate directly in the voting, unless a different form is prescribed by law. 22 Chairmanship of the meeting of the partners 1) The meeting of the partners shall be chaired by the chairperson of the partners committee, and if he/she is prevented, by the deputy chairperson.

12 Retourlogistik und Service GmbH 2) The chairperson shall determine the order of the items of the agenda as well as the type and sequence of votes. 23 Partners voting right 1) Each partner shall have one (1) vote. 2) The voting right may also be exercised by duly authorised representatives. Such power of attorney shall be issued in writing. 24 Partners resolutions 1) Resolutions by the meeting of the partners shall be passed with an absolute majority of all cast votes. The two subscribers to the partnership agreement who in terms of units have the highest market share of all lamps in Germany requiring disposal, shall have a veto right. 2) Unless notarised, any proceedings of the meeting of the partners and resolutions passed by the partners shall be recorded, stating the date of the meeting or passing of the resolution as well as the resolutions passed. All partners shall be provided with a copy of such record. The record shall be deemed approved if none of the partners objects in writing within one month from the receipt of the record. 3) Any invalidity of partners resolutions may be asserted by way of filing suit only within a cut-off period of three months after knowledge has been obtained. 25 Financial year, annual accounts 1) The financial year shall run from the 1st of January to the 31st of December of each year. The initial financial year is a shortened financial year, commencing upon establishment of the partnership and ending on the following 31st of December. 2) The administrative unit shall prepare the annual accounts for the previous financial year during the first three months of the financial year. The annual account documents shall be presented without delay to the auditor. The partners committee shall appoint the auditor. 3) Without delay after receipt of the audit report, the administrative unit shall present the annual accounts as well as the audit report to the partners committee for review. The report of the partners committee shall be forwarded without delay after receipt together with the annual accounts and the audit report to the partners meeting.

13 Retourlogistik und Service GmbH 4) Every year by the end of the first eight months of the financial year, the partners shall adopt the annual accounts, the appropriation of the results for the year and the approval of the actions of the members of the partners committee. 26 Duration of the partnership, termination 1) The partnership shall be established into for an unlimited period of time. 2) 7 shall apply in case of termination by one partner. 27 Venue Venue for any and all disputes between the partnership and its partners as well as among partners shall be the seat of the partnership if such disputes pertain to membership in the partnership. 28 Severability, gaps, preconditions for the agreement, appendices 1) If individual provisions of this agreement are or become ineffective, this shall not affect the remaining provisions of this agreement. The partners shall cooperate amicably to find a provision that is equivalent to the economic result of the invalid provisions. 2) In the event of gaps in the execution of this agreement, which are provided for neither in the agreement nor by law, the partners committee shall make a binding decision to close such gap. 3) The partnership agreement shall be subject to the approval of the guarantee system for lamps as a suitable system in the meaning of 6 para. 3 clause 3 ElektroG by the competent authorities or the Foundation Elektro-Altgeräte Register (EAR). 4) Any amendments to this agreement shall be reported without delay to the competent authorities or the Foundation Elektro-Altgeräte Register (EAR). 5) Appendices 1 through 7 shall constitute part of the agreement. 29 Written form Any declarations of intention that are required to be made in connection with this agreement shall be made in writing, unless notarisation is required by law.

14 Retourlogistik und Service GmbH 30 Dissolution of the partnership The partnership shall be dissolved if it is no longer possible to achieve its purpose specified in 2 or if the partners pass a resolution dissolving it. 31 Liquidation In the event of liquidation, the partnership s assets after settlement of all obligations shall be distributed to the partners, i.e. in the proportion of the market shares in units of lamps that have been placed on the market during the last three complete calendar years prior to a liquidation resolution and that need to be disposed. 5 para. 1 shall apply accordingly to the calculation. Any partner, who at the time of the liquidation resolution had not been a partner for a period of two complete calendar years, shall not be included in the calculation and distribution of the liquidation proceeds. The above sentence shall not apply if the liquidation resolution is passed prior to expiration of a period of two calendar years since establishment of the partnership.