Settlement. between. 1. Phila Beteiligungs-AG, Shareholder Pegnitz Nürnberger Wohnen AG, Shareholder Dr. Ulrich Lüdemann, Shareholder 3

Transcription

1 Settlement between 1. Phila Beteiligungs-AG, Shareholder 1 2. Pegnitz Nürnberger Wohnen AG, Shareholder 2 3. Dr. Ulrich Lüdemann, Shareholder 3 4. Dr. Dietrich Ratthey, Shareholder 4 (Shareholders 1 to 4, jointly the Shareholders ) and TUI AG, Karl-Wiechert-Allee 4, Hanover, the Company Authorised representatives: Rechtsanwälte Gleiss Lutz, Lautenschlagerstrasse 21, Stuttgart the Company and the Shareholders jointly the Parties

2 Preamble 1. On 28 October 2014, the Company held an extraordinary shareholders meeting (hereinafter the Shareholders Meeting ). The following is a brief summary of the resolutions adopted by the Shareholders Meeting regarding agenda items 1 to 6: Agenda Item 1: Increase in the company s share capital against non-cash contributions excluding the Shareholders statutory subscription rights Agenda item 2: Creation of a new contingent capital, granting of subscription rights and amendment of the articles of association Agenda item 3: Creation of a new authorised capital, grating of subscription rights and amendment of the articles of association Agenda item 4: Amendment of the articles of association to increase the number of Supervisory Board members Agenda item 5: Election of five new Supervisory Board members Agenda item 6: Amendment of the articles of association to enable the election of a second Deputy Supervisory Board Chairman, the extension of the Supervisory Board s Executive Committee, the remuneration of the members of the Integration Committee and the appointment of a further Executive Board Chairman 2. The Shareholders hold shares in the Company. At the Shareholders Meeting, Shareholders 1 to 3 objected to all resolutions, having such objection recorded in the minutes by the officiating notary Dr. Ulrich Haupt, practicing in Hanover (document register no / 2014). At the Shareholders Meeting, Shareholder 4 objected to the resolutions adopted with regard to agenda items 1 to 3, having such objection recorded in the minutes. The Shareholders take the view that the contested resolutions adopted with regard to agenda items 1 to 3 are not valid due to lack of information. Shareholder 4 filed an action for disclosure pursuant to section 132 Stock Corporation Act (AktG) against the Company with Hanover Regional Court, motioning for the disclosure of information regarding three issues ( Action for Disclosure ). 3. The Company maintains that all resolutions at the extraordinary shareholders' meeting of 28 October 2014 were adopted lawfully and properly, that the Shareholders objections are unfounded and, in particular that the information rights of the Shareholders were observed. 4. Following a detailed assessment of the factual and legal situation, the Parties have reached the conclusion that, taking into consideration the economic importance of the merger of TUI AG and TUI Travel PLC, it is in the interest of the Company and all of its Shareholders to avoid further legal disputes in connection with the extraordinary shareholders' meeting of 28 October /8

3 5. Now therefore, the Parties agree, without relinquishing their respective legal positions, to the following settlement in order to terminate the action for disclosure and to avoid a further legal dispute. 1 Information to be provided to the Shareholders of the Company The Company undertakes to issue a statement on its website informing the Company s Shareholders that they may all request information from the Company with regard to the issues specified in Annex 1. This statement shall be published on the Company s website within seven days of all of the following conditions having been satisfied: Entry in the commercial registers kept at the registration courts of Hanover Local Court under HRB 6580 and Charlottenburg Local Court under HRB 321 of the resolution adopted by the extraordinary shareholders' meeting of 28 October 2014 with regard to agenda item 1, of the completion of the increase in share capital adopted with regard to agenda item 1 and of the amendment of the articles of incorporation adopted with regard to agenda items 2, 3, 4 and 6 ( Commercial Register Entries ), as well as proof, to be furnished by Shareholder 4 to the Company, that he has withdrawn the motions filed in the action for disclosure. The statement shall be made available on the website for a period of at least one month. The Company undertakes vis-à-vis the other Parties, while maintaining its position that the information rights of the Shareholders were met at the extraordinary shareholders' meeting of 28 October 2014 and ahead of the Shareholders Meeting, to provide each Shareholder of the Company who requests information on the issues specified in Annex 1 from the Company during the period in which the statement is available on the Company s website with such information, in writing and free of charge, within seven days of receipt of such written request. 2 Resolutions of the Shareholders Meeting 1. The Shareholders hereby unconditionally and irrevocably withdraw their objections recorded in the minutes by the officiating notary Dr. Ulrich Haupt, practicing in Hanover (document register no / 2014). Shareholder 4 hereby also unconditionally and irrevocably withdraws his motions filed in the action for disclosure and undertakes to notify the competent court of such withdrawal without undue delay. The Company agrees to the withdrawal of the objections and the motions in the action for disclosure. 2. The Shareholders agree to the Commercial Register Entries and the other proposed entries in the commercial registers in connection with the resolutions of the extraordinary shareholders' meeting of 28 October 2014 (e.g. implementation of the capital increase). The Shareholders shall notify the registration court of Hanover Local Court with regard to HRB 6580 and the registration court of Charlottenburg Local Court with regard to HRB 321 without undue delay of the withdrawal of the aforementioned objections and the motions filed in the action for disclosure, informing said courts that they have neither filed nor will file actions against the resolutions of the extraordinary shareholders' meeting of 28 October 2014 on the grounds of the resolutions being defective. Should the Shareholders have already notified the registration court of Hanover Local 3/8

4 Court and the registration courts of Charlottenburg Local Court of their intention to file actions on the grounds of the resolutions being defective, they shall withdraw such notices and make it clear that they have neither filed nor will file actions against the resolutions of the extraordinary shareholders' meeting of 28 October 2014 on the grounds of the resolutions being defective. The Shareholders hereby expressly authorise the Company to notify the registration court of Hanover Local Court with regard to HRB 6580 and the registration court of Charlottenburg Local Court with regard to HRB 321 without undue delay of the withdrawal of the aforementioned objections and the motions filed in the action for disclosure, informing said courts that the Shareholders have neither filed nor will file actions against the resolutions of the extraordinary shareholders' meeting of 28 October 2014 on the grounds of the resolutions being defective. 3. The Shareholders undertake to refrain from deriving legal rights from the objections recorded in the minutes and the motions filed in the action for disclosure, and to neither prevent or delay by means of legal remedies, appeals or otherwise the Commercial Register Entries or the other proposed entries in the commercial registers in connection with the resolutions of the extraordinary shareholders' meeting of 28 October 2014 (e.g. implementation of the capital increase). 4. The Shareholders undertake not to challenge in any way, either directly or indirectly, either in or out of court, the lawfulness or validity of the resolutions adopted at the extraordinary shareholders' meeting of 28 October 2014 or their implementation. In particular, the Shareholders shall irrevocably waive the filing of actions for avoidance, nullity actions, actions for invalidity or general declaratory actions as well as actions for disclosure in connection with the resolutions of the extraordinary shareholders' meeting of 28 October The Company hereby accepts such waivers. The Shareholders hereby warrant and represent that, with the exception of the action for disclosure, they have neither filed nor will file actions against the resolutions of the extraordinary shareholders' meeting of 28 October 2014 on grounds of the resolutions being defective nor initiated other court proceedings. They undertake to withdraw, without undue delay, any actions for avoidance, nullity actions or other actions and court proceedings initiated with regard to the resolutions of the extraordinary shareholders' meeting of 28 October The Shareholders shall also refrain from asserting, either directly or indirectly, any other rights arising from or in connection with a possible deficiency of the resolutions of the extraordinary shareholders' meeting of 28 October 2014 and shall not take any judicial or extrajudicial action that presupposes the unlawfulness of the aforementioned resolutions or is related, either directly or indirectly, to the assertion that they are unlawful. 6. The Shareholders hereby warrant and represent that they do not hold, either directly or indirectly, shares in TUI Travel PLC. They also warrant and represent that they are not the economic beneficiaries of shares in TUI Travel PLC. The Shareholders undertake to refrain from becoming, either directly or indirectly, shareholders of TUI Travel PLC until the Commercial Register Entries and the other proposed entries in the commercial registers in connection with the resolutions of the extraordinary shareholders' meeting of 28 October 2014 (e.g. implementation of the capital increase) have been made. They also undertake to refrain from becoming the economic beneficiaries of shares in TUI Travel PLC until the Commercial Register Entries and the other 4/8

5 proposed entries in the commercial registers in connection with the resolutions of the extraordinary shareholders' meeting of 28 October 2014 (e.g. implementation of the capital increase) have been made. 7. All representations and warranties made by the Shareholders pursuant to paragraphs 1 to 6 above shall also extend to the trustor of Shareholder 4, Ithaka SICAV FIS, with its registered seat in Luxembourg. 3 No ancillary agreements The Parties are in agreement that no other agreements or arrangements exist with regard to the resolutions beyond the wording of the present Settlement and that the description of the Company s performances under this Settlement are complete and accurate. There have been no performances or commitments of third parties attributable to the Company. 4 Costs 1. For extrajudicial costs incurred in connection with drafting and concluding this Settlement, the Company shall reimburse to the Shareholders the following fees under the Lawyers' Remuneration Act set forth below on the basis of the following values: (1) Value in dispute (aggregate total for the resolutions on agenda items 1 to 3): EUR 500,000 (2) Additional values of the settlement for Resolution on agenda item 1: EUR 9,000,000 Resolution on agenda item 2: EUR 9,000,000 Resolution on agenda item 3: EUR 9,000,000 Taking into consideration the economic interests of the Company as well as the information needs of its Shareholders, the Parties consider these values of the additional values of the settlement to be appropriate. 2. For the extrajudicial costs, the Parties agree to use the following fees as a calculation basis, the type, number and content of which are final and binding on them. To this extent, the additional value of the settlement shall equal the product of the additional values of the settlement specified in section 4 paragraph 1 no. 2 for the resolutions regarding agenda items 1 to 3. (1) 0.8 procedural fee pursuant to sections 2, 13 in conjunction with no fee schedule of the Lawyers' Remuneration Act based on the value in dispute, (2) 0.8 procedural fee pursuant to sections 2, 13 in conjunction with no fee schedule of the Lawyers' Remuneration Act based on the additional value of the settlement, 5/8

6 (3) 1.5 procedural fee pursuant to sections 2, 13 in conjunction with no fee schedule of the Lawyers' Remuneration Act based on the value in dispute, (4) 1.5 procedural fee pursuant to sections 2, 13 in conjunction with no fee schedule of the Lawyers' Remuneration Act based on the additional value of the settlement, (5) Flat rate for expenses pursuant to no Lawyers' Remuneration Act, and (6) statutory VAT, to the extent the respective shareholder is not entitled to a tax deduction. 3. The Company shall indemnify Shareholder 4 against the judicial costs of the action for disclosure. To the extent the judicial costs of Shareholder 4 were paid in advance, these shall be reimbursed to Shareholder 4 by the Company. 4. The Company shall reimburse to Shareholder 4 his extrajudicial costs incurred in connection with the action for disclosure subject to this provision on the basis of a value in dispute of EUR 5,000 each for questions 1 to 3. In the action for disclosure, the Parties agree to include the following fees calculated as the product of the values in dispute for each of the questions 1 to 3, the type, number and content of which are final and binding on them. (1) 1.3 procedural fee pursuant to sections 2, 13 in conjunction with no fee schedule of the Lawyers' Remuneration Act, (2) 1.0 procedural fee pursuant to sections 2, 13 in conjunction with no fee schedule of the Lawyers' Remuneration Act, (3) statutory VAT, to the extent Shareholder 4 is not entitled to a tax deduction. 5. Shareholders 1 to 3 may only jointly claim reimbursement of extrajudicial costs for one lawyer. Shareholder 4 may also only claim reimbursement of extrajudicial costs for one lawyer. Where a lawyer represents several shareholders, the amount reimbursable shall increase subject to sections 2, 13 Lawyers' Remuneration Act in conjunction with no fee schedule of the Lawyers' Remuneration Act. The representation relationships indicated at the time the Settlement was signed shall be decisive. 6. The aforementioned provisions regarding the reimbursement of judicial or extrajudicial costs shall be binding on the Parties. The Shareholders shall not have any further claims to the reimbursement of costs, fees or expenses. To the extent Shareholder 4 is entitled to claim reimbursement of judicial and extrajudicial costs on the basis of this section 4, such reimbursement of costs shall also cover all judicial and extrajudicial costs of his trustor. 7. The claims to reimbursement provided for in this section 4 shall become due and payable upon receipt of a corresponding payment order by the Company, but no earlier than after 10 banking days of the Commercial Register Entries and the furnishing of proof by Shareholder 4 to the Company that he has withdrawn the motions filed in the action for disclosure. 6/8

7 8. The Company shall bear its own costs. 5 No special privileges The Shareholders hereby declare that they have neither been granted, conceded or promised special privileges in connection with the objections raised by them and the conclusion of this Settlement nor requested the same. The Company hereby declares that it has neither granted, conceded or promised special privileges to the Shareholders in connection with the objections raised by them and the conclusion of this Settlement. 6 Publication 1. The Company undertakes to publish the full wording of this Settlement (however without stating the Shareholders addresses and without naming their authorised representatives) in the Federal Gazette at its own expense. 2. Should the publication be incomplete this shall not affect any of the obligations of the Parties under this Settlement. 7 Choice of law/place of jurisdiction 1. This Settlement shall be governed by German law without regard to conflict of law provisions. 2. The sole place of jurisdiction for all disputes arising from or in connection with this Settlement is, to the extent legally permissible, Hanover. 8 Final provisions 1. The Parties waive, to the extent legally permissible, the right to rescind or otherwise reverse this Settlement. 2. Upon conclusion of this Settlement all mutual claims of the Parties arising in connection with the facts underlying this Settlement, whether known or unknown, shall be deemed settled. 3. Changes to, additions to or the termination of this Agreement, including a change to this provision itself, must be in writing in order to be valid. The same shall apply in the case of a waiver of this provision or the written form requirement. 4. Should a provision of this Settlement be or become void, invalid or unenforceable, in whole or in part, this shall not affect the validity and enforceability of any of the remaining provisions. The void, invalid or unenforceable provision shall be replaced by a valid and enforceable provision that comes closest to the economic purpose pursued by the void, invalid or unenforceable provision as regards object, extent, time, place and scope. The same applies to the filling of any gaps in this Settlement. 7/8

8 Annex 1 1. Development of the EBITDA of TUI Travel PLC for 2019/20 and 2020/21 (perpetual annuity) out of the EBITA (before depreciation) for 2012/13; development of an EBITA 2012/13 in the amount of EUR 532,8 million to an EBITDA in the amount of EUR 1,412 million in 2020/21 (perpetual annuity) 2. Sustainable EBITA and EBITDA of TUI Travel for the forecast years of 2013/14 to 2019/20 3. Forecast of TUI Travel profit-and-loss calculation for 2013/14: Actual for the first six months, forecast for the other six months and budgeted balance sheet as at 30 September Target figures 2014/15 to 2018/19 for TUI AG before and after the execution of the merger 8/8