The following information is presented pursuant to section 289 (4) and section 315 (4) of the German Commercial Code (HGB).
Composition of subscribed capital
The subscribed capital of TUI AG consists of no-par value shares, each representing an equal share of the capital stock. The proportionate share in the capital stock per share was around €2.56. In July of financial year 2005, the previous bearer shares were converted to registered shares.
The subscribed capital of TUI AG, registered in the commercial registers of the district courts of Berlin-Charlottenburg and Hanover, consisted of 251,444,305 shares at the end of the short financial year (previous year: 251,444,305 shares) and totalled €642.8m. Each share confers one vote at the Annual General Meeting.
Restrictions on voting rights or the transfer of shares
The Executive Board of TUI AG is not aware of any restrictions on voting rights or the transfer of shares.
Equity interests exceeding 10% of the voting rights
Pursuant to the German Securities Trading Act, every shareholder whose share of voting rights reaches, exceeds or falls below certain thresholds as the result of purchases, disposals or otherwise has to notify the Company and the German Federal Financial Supervisory Authority. The lowest threshold for this notification duty is 3%. The Executive Board of TUI AG has been notified of the following direct or indirect equity interests reaching or exceeding 10% of the voting rights.
The voting shares in TUI AG attributable to Alexey Mordashov, Russia, exceeded the 15% on 15 July 2008. As per that date, voting shares totalling 15.03% were attributable to him via Sungrebe Investments Ltd., Tortola, British Virgin Islands, Artcone Ltd., Limassol (Cyprus) and S-Group Travel Holding GmbH, Frankfurt (Germany).
The voting shares in TUI AG attributable to John Fredriksen, Cyprus, exceeded the 15% threshold on 30 June 2008. As per that date, voting shares totalling 15.01% were attributable to him via Monteray Enterprises Ltd., Limassol (Cyprus) and Geveran Holdings S.A., Monrovia (Liberia).
At the end of the short financial year 2009, around 55% of the TUI shares were in free float. Around 15% of all TUI shares were held by private shareholders, around 40% by institutional investors and around 45% by strategic investors. According to an analysis of the share register, these were mainly investors from Germany and other EU countries.
At the end of the short financial year 2009, around 55% of the TUI shares were in free float. Around 15% of all TUI shares were held by private shareholders, around 40% by institutional investors and around 45% by strategic investors. According to an analysis of the share register, these were mainly investors from Germany and other EU countries.
Shares with special control rights
There have not been any shares, nor are there any shares, with special control rights.
System of voting right control of any employee share scheme where the control rights are not exercised directly by the employees
Where TUI AG grants shares to employees under its employee share programme, the shares are directly transferred to the employees with a lock-up period. Beneficiaries are free to directly exercise the control rights to which employee shares entitle them, in just the same way as other shareholders, in line with legal requirements and the provisions of the Articles of Association.
Appointment and removal of Executive Board members and amendments to the Articles of Association
The appointment and removal of Executive Board members is based on sections 84 f. of the German Stock Corporation Act in combination with section 31 of the German Co-Determination Act. Amendments to the Articles of Association are based on the provisions of sections 179 ff. of the German Stock Corporation Act in combination with section 24 of the Articles of Association of TUI AG.
Powers of the Executive Board to issue or buy back shares
The Annual General Meeting of 13 May 2009 authorised TUI AG’s Executive Board to acquire own shares of up to 10% of the capital stock. The authorisation will expire on 12 November 2010 and replaces the authorisation granted by the AGM of 7 May 2008. The Executive Board was also authorised to use equity derivatives in the form of put or call options in the framework of that acquisition. The use of equity derivatives has been restricted to acquiring shares of up to 5% of the capital stock. To date, the option to acquire own shares has not been used. In contrast to the original proposals for resolutions formulated by the management for the Annual General Meeting, the resolutions adopted at the Annual General Meeting did not include an authorisation to exclude the shareholders’ subscription rights.
Moreover, conditional capital of €100m was authorised in 2009. Accordingly, bonds with conversion options or warrants as well as profit-sharing rights and income bonds of up to a nominal amount of €1.0bn may be issued up to 12 May 2014.
Conditional capital of €100m was already resolved by the Annual General Meeting of 7 May 2008. Accordingly, bonds with conversion options or warrants as well as profit-sharing rights and income bonds of up to a nominal amount of €1.0bn may be issued up to 6 May 2013.
The issuance of bonds and profit-sharing rights in accordance with the two authorisations mentioned above has been limited to a total nominal amount of €1.0bn.
In addition, two authorisations were granted in 2008 to increase the capital stock by a total of €74m by 6 May 2013. This includes authorised capital for the issue of new shares with the option of excluding subscription rights of €64m and authorised capital for the issue of employee shares worth €10m. To date, around €0.5m of this authorised capital has been used.
The Annual General Meeting of 10 May 2006 resolved to create authorised capital for the issue of new shares against cash or non-cash contribution worth €246m by 9 May 2011. The issue of new shares against non-cash contribution is limited to €128m.
Significant agreements taking effect in the event of a change of control of the Company following a takeover bid and the resulting effects
TUI AG’s remaining listed bonds, the private placements issued in 2006 and 2007 – where they have not yet been redeemed – and the equity-linked financing of TUI AG with shares in TUI Travel PLC as underlying include change of control clauses. A change of control occurs in particular if a third partly directly or indirectly acquires control over at least 30% or the majority of the voting shares in TUI AG, depending on the respective agreement.
In the event of a change of control, bondholders must be offered a buy-back of the corresponding bond. This provision applies to all listed bonds with the exception of the hybrid bond and the convertible bonds. For the hybrid bond, an interest mark-up has been agreed to take effect in the event of a change of control should the rating be downgraded. For the convertible bonds, a right of termination or reduction of the conversion price has been agreed.
Concerning the private placements, the lenders are entitled to terminate the agreements in the event of a change of control.
The equity-linked financing with shares in TUI Travel PLC as underlying sets out that the lenders will be able to demand either repayment at nominal value plus accrued interest or exchange of the bonds at market value in the event of a change of control.
The total volume of financing instruments with corresponding change of control clauses currently amounts to around €3.6bn. On top of that, there are no agreements in guarantee, leasing, option or other financial contracts that might cause material early redemption obligations that would be of significant relevance for the Group’s liquidity.
Apart from the financing instruments mentioned above, a framework agreement between the Riu family and TUI AG includes a change of control clause. A change of control occurs if a shareholder group represents a predefined majority of AGM attendees or if one third of the shareholder representatives on the Supervisory Board are attributable to a shareholder group. In the event of a change of control, the Riu family is entitled to acquire at least 20% and at most all shares in RIUSA II S.A. held by TUI.
A similar agreement concerning a change of control in TUI AG was concluded with the El Chiaty Group. Here, too, a change of control occurs if a shareholder group represents a predefined majority of AGM attendees or if one third of the shareholder representatives on the Supervisory Board are attributable to a shareholder group. In that case, the El Chiaty Group is entitled to acquire at least 15% and at most all shares in the joint hotel companies in Egypt and the United Arab Emirates held by TUI.
Under the license agreement concluded with the allocation of the tourism business to TUI Travel PLC, the licensee, TUI Travel PLC, is entitled to acquire TUI AG’s total tourism brand portfolio in the event of a change of control. A change of control agreement was concluded for the joint venture TUI Cruises between Royal Caribbean Cruises Ltd and TUI AG for a change of control in TUI AG. The agreement gives the partner the right to demand termination of the joint venture and to purchase the share held by TUI AG at a price which is lower than the selling price of their own share.
Compensation agreements between the Company and Executive Board members or employees taking effect in the event of a takeover bid
In the event of loss of Board membership through a change of control or by executing the right granted to Board members, specifically accorded for this event, of resigning from their office and terminating their service contract as a Board member, every Board member is entitled to receive remuneration for his or her financial entitlements for the remaining period of the said contract.
The performance-related remuneration and the granting of phantom stocks for the remaining term of the contract are based on the average remuneration received in the last three financial years. The same provision applies to the remuneration for Supervisory Board mandates hitherto received from Group companies.
The service contracts for Executive Board members do not comprise an explicit severance payment entitlement upon a premature termination of the contract. However, a severance payment may be paid under an individual termination agreement. In future, care will be taken to ensure that severance payments agreed in service contracts for Board members do not exceed the amount equivalent to two annual remuneration payments. The severance payment for change of control situations is to be limited to 150% of the severance payment cap.