EANS-General Meeting: TUI AG
Announcement convening the general meeting
-------------------------------------------------------------------------------- General meeting information transmitted by euro adhoc. The issuer is responsible for the content of this announcement. -------------------------------------------------------------------------------- Invitation We hereby invite our shareholders to the 2013 Annual General Meeting on Wednesday, 13 February 2013 at 10.30 a.m. at the Hannover Congress Centrum, Theodor-Heuss-Platz 1-3, 30175 Hanover. TUI AG Berlin/Hanover Karl-Wiechert-Allee 4 30625 Hanover Germany The Company's share capital is divided into 252,374,490 no-par value shares carrying the same number of votes. Securities identification numbers Voting and participating shares: ISIN-Code WKN DE 000 TUA G00 0 TUA G00 DE 000 TUA G0B 2 TUA G0B Voting shares: ISIN-Code WKN DE 000 TUA G20 8 TUA G20 DE 000 TUA G19 0 TUA G19 Agenda for the Annual General Meeting of TUI AG on 13 February 2013 1.Presentation of the approved annual financial statements for the 2011/12 financial year, the approved consolidated financial statements, the summarised management report and group management report with a report explaining the information in accordance with section 289 (4) and section 315 (4) of the German Commercial Code (Handelsgesetzbuch; HGB) and the Supervisory Board report 2. Resolution on the use of the net profit available for distribution for the 2011/12 financial year The net profit for the year is EUR127,946,061.75. After deduction of the EUR118,470,000.00 that was transferred to other revenue reserves and taking account of the retained earnings brought forward of EUR107,141,591.53, the resulting net profit is EUR116,617,653.28. The Executive Board and the Supervisory Board propose carrying forward this reported net profit to new account. 3. Resolution on the ratification of the actions of the Executive Board for the 2011/12 financial year The Supervisory Board and the Executive Board recommend that the actions be ratified. 4. Resolution on the ratification of the actions of the Supervisory Board for the 2011/12 financial year The Executive Board and the Supervisory Board recommend that the actions be ratified. 5. Resolution on the appointment of the auditor for the 2012/13 financial year Based on the recommendation of the Audit Committee, the Supervisory Board proposes that PricewaterhouseCoopers Aktiengesellschaft Wirtschaftsprüfungsgesellschaft, Hanover, be appointed as auditor for the 2012/13 financial year and also for the review of the half-year financial report for the first half of the 2012/13 financial year. 6. Cancellation of the authorised capital pursuant to article 4 (4) of the TUI AG Charter; new authorisation of the Executive Board to increase the share capital (authorised capital) with the option to exclude the shareholders' subscription rights - for the purpose of issuing shares to employees - (amendment of the Charter) By resolution of the Annual General Meeting of 7 May 2008, agenda item 7, the Executive Board was authorised to increase the share capital of the Company, with the consent of the Supervisory Board, by up to EUR10,000,000.00 by issuing new registered shares with the option to exclude the hareholders' subscription rights for the purpose of issuing shares to employees. This authorisation was partly used; it is currently still available in an amount of EUR8,314,654.13. In view of the fact that the authorisation ceases to be effective this year, it is proposed to cancel the existing authorized capital pursuant to article 4 (4) of the Charter and to resolve on a new authorisation creating authorized capital. In this context it is to be ensured that the cancellation of the existing authorised capital pursuant to article 4 (4) of the Charter will take effect only if this authorised capital is replaced by new authorised capital created pursuant to the following resolution proposal. The Executive Board and the Supervisory Board recommend that the following resolution be passed: a) The authorisation of the Executive Board to increase the share capital with the consent of the Supervisory Board pursuant to article 4 (4) of the TUI AG Charter by up to EUR8,314,654.13 (in words: eight million three hundred and fourteen thousand six hundred and fifty-four euros and thirteen cents) (issue of shares to employees) is cancelled with effect as of the date of registration of the new authorised capital to be resolved on pursuant to paragraphs b) and c) below. b) The Executive Board is authorised, with the consent of the Supervisory Board, to increase the share capital of the Company in one or more stages until 12 February 2018 by up to EUR10,000,000.00 (in words: ten million euros) in total by issuing new registered shares in return for contributions in cash (authorised capital) and to take decisions on the content of the shares and the terms of share issuance. The shareholders' sub11 scription rights may be excluded with the consent of the Supervisory Board in order to be able to issue the shares created from the authorised capital to employees of the Company and its Group companies. c) New authorised capital is created in the amount of EUR10,000,000.00. For this purpose, article 4 (4) of the Charter is amended to read as follows: "The Executive Board is authorised, with the consent of the Supervisory Board, to increase the share capital of the Company in one or more stages until 12 February 2018 by up to EUR10,000,000.00 (in words: ten million euros) in total by issuing new registered shares in return for contributions in cash (authorised capital) and to take decisions on the content of the shares and the terms of share issuance. The shareholders' subscription rights may be excluded with the consent of the Supervisory Board in order to be able to issue the shares created from the authorised capital to employees of the Company and its Group companies." d) In order to ensure that the cancellation of the existing authorized capital in the amount of EUR8,314,654.13 (in words: eight million three hundred and fourteen thousand six hundred and fifty-four euros and thirteen cents) will not take effect without being replaced by the new authorised capital created pursuant to the above resolution, the Executive Board is instructed to file for registration of the cancellation of the existing authorized capital in the amount of EUR8,314,654.13 (in words: eight million three hundred and fourteen thousand six hundred and fifty-four euros and thirteen cents) pursuant to article 4 (4) of the Charter with the commercial register subject to the proviso that the cancellation be registered only if the new authorized capital in the amount of EUR10,000,000.00 (in words: ten million euros) is registered at the same time. 7. Cancellation of the authorised capital pursuant to article 4 (5) of the TUI AG Charter; new authorisation of the Executive Board to increase the share capital (authorised capital) with the option to exclude the shareholders' subscription rights inter alia pursuant to sections 203 (2) and 186 (3) sentence 4 of the German Stock Corporation Act (Aktiengesetz; AktG) (amendment of the Charter) By resolution of the Annual General Meeting of 7 May 2008, agenda item 8, the Executive Board was authorised to increase the share capital of the Company, with the consent of the Supervisory Board, by up to EUR64,000,000.00 (in words: sixty-four million euros) by issuing new registered shares with the option to exclude the shareholders' subscription rights pursuant to section 186 (3) sentence 4 AktG. In view of the fact that this authorization expires this year, it is proposed to cancel this authorised capital and to replace it by a new authorisation in order to ensure that the Executive Board will continue to have the necessary tools for raising capital at its disposal and be able to adjust the Company's capital resources in order to meet the commercial requirements also in the future. In this context it is to be ensured that the cancellation of the existing authorised capital pursuant to article 4 (5) of the Charter will take effect only if this authorised capital is replaced by new authorised capital created pursuant to the following resolution proposal. The Executive Board and the Supervisory Board recommend that the following resolution be passed: a) The authorisation of the Executive Board to increase the share capital with the consent of the Supervisory Board pursuant to article 4 (5) of the TUI AG Charter by up to EUR64,000,000.00 (in words: sixty-four million euros) in total (authorised capital) is cancelled with effect as of the date of registration of the new authorised capital to be resolved on pursuant to paragraphs b) and c) below. b) The Executive Board is authorised, with the consent of the Supervisory Board, to increase the share capital of the Company in one or more stages until 12 February 2018 by up to EUR64,500,000.00 (in words: sixty-four million and five hundred thousand euros) in total by issuing new registered shares in return for contributions in cash (authorised capital). Shareholders are, in principle, entitled to subscription rights. The shares may also be acquired by one or more banks with the obligation that the shares be offered to shareholders for subscription. The Executive board may, with the consent of the Supervisory Board, exclude shareholders' subscription rights if the issue amount of the new shares is not significantly lower than the exchange price of previously issued shares with the same terms. The number of new shares issued on the basis of this authorisation, plus the shares issued or sold on the basis of an authorisation to sell pursuant to sections 71 (1) no. 8 sentence 5 and 186 (3) sentence 4 AktG after the Annual General Meeting has passed the resolution on this authorisation on 13 February 2013 (date of resolution) until such time as the authorisation has been exercised must not exceed the limit specified in section 186 (3) sentence 4 AktG of 10% of the share capital existing on the date of the resolution or (if lower) the share capital existing on the date of issue of the new shares. Further, shares that are issued or are to be issued on the basis of bonds with conversion rights or warrants or conversion obligations issued in accordance with section 186 (3) sentence 4 AktG after the date of resolution until such time as the authorisation has been exercised must be taken into account when calculating this limit. The Executive Board may further, with the consent of the Supervisory Board, exclude shareholders' subscription rights in respect of fractional amounts. The Executive Board is authorised, with the consent of the Supervisory Board, to stipulate the further details of the capital increase and its implementation. c) New authorised capital is created in the amount of EUR64,500,000.00. For this purpose, article 4 (5) of the Charter is amended to read as follows: "The Executive Board is authorised, with the consent of the Supervisory Board, to increase the share capital of the Company in one or more stages until 12 February 2018 by up to EUR64,500,000.00 (in words: sixty-four million and five hundred thousand euros) in total by issuing new registered shares in return for contributions in cash (authorised capital). Shareholders are, in principle, entitled to subscription rights. The shares may also be acquired by one or more banks with the obligation that the shares be offered to shareholders for subscription. The Executive Board may, with the consent of the Supervisory Board, exclude shareholders' subscription rights if the issue amount of the new shares is not significantly lower than the exchange price for previously issued shares with the same terms. The number of new shares issued on the basis of this authorisation, plus the shares issued or sold on the basis of an authorisation to sell pursuant to sections 71 (1) no. 8 sentence 5 and 186 (3) sentence 4 AktG after the Annual General Meeting has passed the resolution on this authorisation on 13 February 2013 (date of resolution) until such time as the authorisation has been exercised must not exceed the limit specified in section 186 (3) sentence 4 AktG of 10% of the share capital existing on the date of the resolution or (if lower) the share capital existing on the date of issue of the new shares. Further, shares that are issued or are to be issued on the basis of bonds with conversion rights or warrants or conversion obligations issued in accordance with section 186 (3) sentence 4 AktG after the date of resolution until such time as the authorisation has been exercised must be taken into account when calculating this limit. The Executive Board may further, with the consent of the Supervisory Board, exclude shareholders' subscription rights in respect of fractional amounts. The Executive Board is authorised, with the consent of the Supervisory Board, to stipulate the further details of the capital increase and its implementation." d) In order to ensure that the cancellation of the existing authorized capital in the amount of EUR64,000,000.00 (in words: sixtyfour million euros) will not take effect without being replaced by the new authorised capital created pursuant to the above resolution, the Executive Board is instructed to file for registration of the cancellation of the existing authorised capital in the amount of EUR64,000,000 (in words: sixty-four million euros) pursuant to article 4 (5) of the Charter with the commercial register subject to the proviso that the cancellation be registered only if the new authorised capital in the amount of EUR64,500,000.00 (in words: sixty-four million and five hundred thousand euros) is registered at the same time. 8. Resolution on the new authorisation to acquire and use treasury shares in accordance with section 71 (1) no. 8 AktG with potential exclusion of subscription rights and rights to tender shares and the possibility to redeem treasury shares while reducing share capital In order to acquire treasury shares, the Company requires a special authorisation by the Annual General Meeting, insofar as such acquisition is not expressly permitted by law. Since the authorisation granted by the Annual General Meeting on 9 February 2011 lapsed on 8 August 2012, it should be proposed to the Annual General Meeting that it once again grant the Company an authorisation to acquire treasury shares. The new authorisation to acquire and use treasury shares should also authorise the Executive Board to use treasury shares subject to an exclusion of shareholders' subscription rights. The Executive Board and the Supervisory Board therefore recommend that the following resolution be passed: a) The Executive Board is authorised to acquire treasury shares up to a maximum of 10% of the share capital existing at the time of this resolution. The shares acquired, together with other treasury shares held by the Company or attributable to the Company in accordance with sections 71 a ff. AktG, must at no time exceed 10% of the share capital. In addition, the requirements of section 71 (2) sentences 2 and 3 AktG must be complied with. The authorisation must not be used for the purpose of trading in treasury shares. b) The authorisation may be used in whole or in part, once or several times, and in pursuit of one or several objectives. The acquisition may be effected by the Company, by dependent companies or companies that are majority-owned by the Company, or by third parties acting for their account or for the account of the Company. The authorisation remains valid up to 12 August 2014. The acquisition will be effected, depending on the preference of the Executive Board, either on the stock exchange or by means of a public offer to buy or a public call to shareholders to submit an offer to sell (together 'public acquisition offer'). - If the shares are acquired on the stock exchange, the price per share paid by the Company (not including incidental acquisition costs) must not be more than 10% above or below the exchange price determined during the opening auction in the Xetra trading system (or a comparable successor system) at the Frankfurt Stock Exchange on the respective stock exchange trading day. - If the shares are acquired by means of a public acquisition offer, the offer price per share paid by the Company (not including incidental acquisition costs) must not be more than 10% above or below the price for the Company's shares determined during the closing auction in the Xetra trading system (or a comparable successor system) at the Frankfurt Stock Exchange on the last stock exchange trading day before the publication of the acquisition offer. If, following the announcement of a public offer to buy or a public call to shareholders to submit an offer to sell, there are significant variations in the relevant price, the offer or the call to submit an offer to sell may be adjusted. In this case, the average price during the three stock market trading days prior to the public announcement of any such adjustment will be used. If the total number of shares tendered in response to a public acquisition offer exceeds the volume of the latter, the acquisition may be effected in accordance with the ratio of shares tendered (tender ratio); in addition, preference may be given to accepting small quantities (up to 50 shares per shareholder)and rounding in accordance with common business practice allowed in order to avoid fractions of shares. Any further-reaching tender right on the part of shareholders is excluded in this context. c) Company shares that have been acquired on the basis of this authorisation may be sold over the stock exchange or by offering them to shareholders in accordance with the principle of equal treatment. Furthermore, the Executive Board is authorised to use Company shares that have been acquired on the basis of this authorisation for the following purposes instead: - The shares may be redeemed, with the consent of the Supervisory Board, without such redemption or the execution of such redemption requiring any further resolution by the General Meeting. They may also be redeemed without a capital reduction by adjusting the calculated pro rata amount of the Company's share capital represented by the remaining shares. The redemption may be restricted to only a portion of the shares acquired. If redemption takes place without a capital reduction, the Executive Board is authorised to modify the number of the shares in the Charter accordingly. - The shares may, with the consent of the Supervisory Board, also be sold by means other than a sale on the stock exchange or an offer to shareholders provided that the shares are sold for cash at a price that is not significantly below the exchange price (at the time of the sale) of shares of the Company that are subject to the same terms. In this case, the total number of shares to be sold is limited to 10% of the share capital existing at the time the resolution concerning this authorisation is passed or - if lower - at the time the authorisation is exercised. The above authorisation volume of 10% of the share capital is reduced by the portion of the share capital attributable to shares or relating to bonds carrying warrant and/or conversion rights or obligations that were issued or sold after 13 February 2013 subject to an exclusion of subscription rights in accordance with section 186 (3) sentence 4 AktG applied directly, analogously or mutatis mutandis. - The shares may, with the consent of the Supervisory Board, also be sold against contributions in kind, in particular in connection with the acquisition of companies, parts of companies, interests in companies or other assets (including receivables), and within the context of mergers. - The shares may also be used in connection with the exercise of warrant or conversion rights or for the purpose of fulfilling warrant or conversion obligations under convertible bonds, bonds with warrants, profit-sharing rights and/or income bonds (or combinations of these instruments) issued by the Company or by Group companies and carrying warrant or conversion rights or obligations. d) The authorisation under c) bullet points 2 to 4 also relates to the use of Company shares acquired on the basis of section 71d sentence 5 AktG. e) The authorisations under c) may be exercised once or several times, in full or in part, and individually or together, and the authorisations under c) bullet points 2 to 4 may additionally be exercised by dependent companies or companies that are majority-owned by the Company, or by third parties acting for theiraccount or for the account of the Company. f) The subscription rights of shareholders to treasury shares are excluded insofar as these shares are used in accordance with the above-mentioned authorisations under c) bullet points 2 to 4. In the event that the treasury shares are sold by means of an offer to the shareholders, the Executive Board will be authorised, with the consent of the Supervisory Board, to exclude the subscription rights of shareholders for fractional amounts. However, the total portion of the share capital attributable to treasury shares for which subscription rights have been excluded under this authorisation or through the exercise of the authorisations under c) bullet points 2 to 4 must not - together with the portion of share capital attributable to treasury shares or new shares from authorised capital or relating to warrant or conversion rights or obligations from bonds that were sold or issued after 13 February 2013 subject to an exclusion of subscription rights - exceed 10% of the share capital. This threshold is to be calculated on the basis of the amount of share capital existing at the time the authorisation takes effect or at the time the treasury shares are sold, whichever is lower. Subscription rights will also be deemed excluded if the sale or issue is effected by applying section 186 (3) sentence 4 AktG directly, analogously or mutatis mutandis. 9. Adjustment of the Supervisory Board remuneration as of the beginning of the 2012/13 financial year (amendment of the Charter) The remuneration of the TUI AG Supervisory Board was last changed during the financial year 2006. The Supervisory Board asked Hostettler Kramarsch & Partner (hkp) in their capacity as independent advisors specialised in remuneration issues to review the appropriateness of the remuneration of the TUI AG Supervisory Board and to make a proposal for adjusting the remuneration as regards its amount and structure. The result of the review and the proposal for an adjustment of the remuneration were discussed in detail by the Supervisory Board and the Executive Board. The changes recommended by the Supervisory Board and the Executive Board relate to - an adjustment of the annual fixed remuneration from EUR40,000.00 to EUR50,000.00, - the substitution of the short-term variable remuneration by the remuneration reflecting the long-term success of the Company; the cap of EUR50,000.00 for the long-term remuneration remains in place, - the determination of an equal additional remuneration for members of the Executive Committee and the Audit Committee in the amount of EUR40,000.00 in lieu of the previously payable EUR20,000.00, - the cancellation of the lump-sum reimbursement of expenses, and - the introduction of an attendance fee of EUR1,000.00 for every meeting. The new remuneration system is scheduled to take effect as of the beginning of the 2012/13 financial year. The long-term remuneration claims under the currently still valid remuneration system will be determined as of 30 September 2012 and paid after this Annual General Meeting. The proposal takes into account the recommendations of the German Corporate Governance Code (Corporate Governance Kodex) as amended on 15 May 2012. The Management Board and the Supervisory Board therefore propose to restate article 18 of the Charter as follows: "Article 18 (1) Apart from reimbursement of their expenses, which also include the turnover tax due on their emoluments, the members of the Supervisory Board shall each receive: (a) fixed remuneration payable at the end of the fiscal year totalling EUR50,000.00; and (b) a variable remuneration reflecting the long-term success of the Company (long-term variable remuneration) of EUR400.00 per EUR0.01 of the average undiluted results per share (profit per share) as reported in the Group financial statements for each of the last three fiscal years ended; Should a member step down from the Supervisory Board before the end of the three-year reference period, the determination of the average profit per share shall end with the fiscal year in which the member steps down. The amount payable shall not exceed a cap of EUR50.000,00. (c) the remuneration pursuant to subparagraph 1 (b) shall be payable after conclusion of the Annual General Meeting responsible for ratifying the actions of the Supervisory Board for the preceding fiscal year. (2) The chairman of the Supervisory Board shall receive three times, and his/her deputy one-and-a-half times the remuneration as specified in subparagraphs 1 (a) and (b). (3) In addition to their remuneration pursuant to subparagraphs 1 (a) and (b) and paragraph 2 members of the executive committee and the audit committee shall receive an additional amount of EUR40,000.00 payable pursuant to subparagraph 1 (c), and the chairman of the audit committee shall receive three times this remuneration. The members of the nomination committee shall receive no additional remuneration for their services. (4) In all cases the remuneration relates to a full fiscal year. For parts of a fiscal year or short fiscal years, the remuneration shall be paid pro rata temporis. In the case of short fiscal years the correct ratio shall be ensured by determining suitable adapted values. (5) Members of the Supervisory Board, of the executive committee, the nomination committee and the audit committee shall receive an attendance fee for attending meetings of EUR1,000.00 per meeting. (6) The members of the Supervisory Board shall be included in a D&O insurance, if any, taken out by the Company in a reasonable amount in the interest of the Company covering the members of the Boards and certain managers. The premium shall be paid by the Company." 10. Election of a Supervisory Board member for the remaining term of office Former Supervisory Board member Mr Roberto López Abad resigned his seat effective as of the close of the Annual General Meeting of 15 February 2012. On 26 March 2012, Ms Angelika Gifford was appointed as Supervisory Board member by the Local Court (Amtsgericht) of Hanover at the request of the Executive Board. In keeping with the German Corporate Governance Code the Supervisory Board requests that the appointment of Ms Gifford be confirmed by election at the Annual General Meeting for the remaining term of the Supervisory Board ending at the close of the 2016 Annual General Meeting. The Supervisory Board believes that the election of Ms Gifford as an independent and female nominee with ample professional experience in the field of information technology, which is of great importance to the Company, contributes to an optimal staffing of the board. In accordance with article 11 of the TUI AG Charter in conjunction with section 96 (1) and section 101 (1) AktG and section 7 (1) of the Mitbestimmungsgesetz (German Co-determination Act ), the Supervisory Board is comprised of eight shareholder representatives and eight employee representatives. The Supervisory Board members representing the shareholders are to be elected by the Annual General Meeting. When electing the shareholder representatives, the Annual General Meeting is not bound to elect one of the nominees. The Supervisory Board proposes electing Ms Angelika Gifford, Senior Director of Microsoft Deutschland GmbH, Kranzberg, to the Supervisory Board as shareholder representative for the period ending at the close of the 2016 Annual General Meeting, which ratifies the actions of the Supervisory Board for the 2014/15 financial year. Information on agenda item 10 pursuant to section 125 (1) sentence 3 AktG: Ms Angelika Gifford is not a member of other Supervisory Boards required by law or comparable supervisory bodies of commercial enterprises in Germany and abroad. Report of the Executive Board to the Annual General Meeting on the exclusion of subscription rights pursuant to sections 186 (4) sentence 2, 203 (2) sentence 2 and 71 (1) no. 8 sentence 5 AktG, as provided for in agenda items 7 and 8. The Executive Board reports in detail on the relationship between the existing authorisation to exclude subscription rights pursuant to sections 186 (3) sentence 4 AktG and pursuant to article 4 (5) of the TUI AG Charter and the new authorisations proposed in agenda item 7 (authorised capital) and agenda item 8 (acquisition and use of treasury shares) as follows: The authorisations proposed in agenda items 7 and 8 inter alia provide for an option to increase the share capital of TUI AG or to sell acquired treasury in accordance with the provisions of section 186 (3) sentence 4 AktG and to exclude the shareholders' subscription rights in this context, provided that the relevant statutory limit of 10% of the share capital in total is not exceeded. The Executive Board will, with the consent of the Supervisory Board, exercise any such authorisation based on an application of section 186 (3) sentence 4 AktG only in such a manner as to ensure that, overall, the limit specified in section 186 (3) sentence 4 AktG of 10% of the share capital existing at the time the resolutions regarding the authorisations are adopted by the General Meeting is not exceeded at any time during the term of the respective authorisation until such time as it is exercised. If the share capital at the time the respective authorisation is exercised is less than that at the time the resolutions were adopted, the lower share capital amount will apply. Irrespective of whether the authorisations providing for an option to exclude subscription rights are exercised separately or cumulatively, the limit of 10% of the share capital stipulated for an exclusion of subscription rights pursuant to section 186 (3) sentence 4 AktG must not be exceeded in aggregate. The sole purpose of the existing and proposed authorisations offering the option to exclude subscription rights pursuant to section 186 (3) sentence 4 AktG is to provide the Executive Board with the possibility to use the instrument that is most suitable in a specific situation - taking into consideration the interests of the shareholders and the Company - but not to make multiple use of the various possibilities for a simplified exclusion of subscription rights provided in the proposed authorisations, thereby excluding the shareholders' subscription rights above and beyond the limit of 10% of the share capital specified in section 186 (3) sentence 4 AktG. Re. agenda item 7 (authorised capital in the amount of EUR64,500,000.00) The authorisation to increase the share capital pursuant to the resolution of the Annual General Meeting of 7 May 2008, agenda item 8, by EUR64,000,000.00 will expire on 6 May 2013. In order to ensure that the Company will be able also in the future to adjust its capital resources flexibly to reflect any requirements that may arise, the Executive Board is to be authorised, for a period of five years, to increase the share capital of the Company by up to EUR64,500,000.00 with the consent of the Supervisory Board. When making use of this authorised capital, there is to be an option to exclude the shareholders' subscription rights with the consent of the Supervisory Board if, in the case of capital increases against contributions in cash, the new shares are issued in accordance with section 186 (3) sentence 4 AktG at a price that is not significantly below the exchange price. This authorisation will enable the Company to quickly and flexibly exploit market opportunities arising in its various business areas and to raise the required capital at very short notice, if necessary. In this context, the exclusion of the shareholders' subscription rights will not only allow the Company to act more quickly but also to place the shares at a price that is close to market, i.e. without the discount that is generally necessary in rights issues. This will result in higher issue proceeds and will thus be to the benefit of the Company. When exercising the authorisation, the Executive Board will determine a discount that is as low as possible in view of the market conditions prevailing at the time of placement. The discount from the exchange price at the time this authorised capital is utilised will, however, in no event be more than 5% of the exchange price prevailing at the time. The shares issued subject to an exclusion of shareholders' subscription rights pursuant to section 186 (3) sentence 4 AktG must not exceed 10% of the share capital either at the time the resolution on this authorisation is passed or at the time it is exercised. If, at the time the authorisation is exercised, the share capital is lower than on 13 February 2013, the lower amount applies. When calculating this limit, all treasury shares sold subject to an exclusion of shareholders' subscription rights pursuant to section 186 (3) sentence 4 AktG after 13 February 2013 and up to the time the authorisation is exercised must be included. Moreover, those shares must be included in the calculation of the limit that are issued or are to be issued in order to perform obligations under bonds with conversion rights or warrants or a conversion obligation, provided that the bonds were issued after 13 February 2013 and up to the time the authorisation is exercised subject to an exclusion of subscription rights by applying section 186 (3) sentence 4 AktG analogously. In line with the statutory provisions, this requirement ensures that the shareholders' need for protection against dilution of their shareholdings is adequately accounted for. As the volume of the capital increase in respect of which the shareholders' subscription rights are excluded is limited, each shareholder generally has the option to purchase the shares required in order to maintain his percentage stake at nearly equivalent terms on the stock market. It is thus ensured that the financial interests as well as the interests relating to voting rights will be adequately protected, in compliance with the statutory assessment set out in section 186 (3) sentence 4 AktG, in connection with a utilisation of this authorised capital subject to an exclusion of shareholders' subscription rights, while new scope for action is opened up for the Company, which is in the interests of all shareholders. The option to have the Executive Board exclude shareholders' subscription rights, with the consent of the Supervisory Board, in respect of fractional amounts will facilitate the handling of a rights issue if fractional amounts result from the issue volume or from ensuring a practicable subscription ratio. Re. agenda item 8 (authorisation to acquire and use treasury shares) The proposal in agenda item 8 concerns an authorisation, restricted to a period of 18 months, to acquire treasury shares in accordance with section 71 (1) no. 8 AktG representing up to 10% of the share capital. In the Annual General Meeting on 9 February 2011, TUI AG passed an authorisation resolution for the acquisition of treasury shares that was limited to a term ending on 8 August 2012. Under the new authorisation, the Company, in addition to being able to acquire treasury shares on the stock exchange, should also be able to acquire treasury shares by means of a public offer to buy or a public call to submit an offer to sell. The principle of equal treatment, as specified in German stock corporation law, must be observed regardless of the way in which the acquisition is effected. In the case of a public offer to buy or a public call to submit an offer to sell, shareholders can decide how many shares they would like to offer to the Company and - where a price range is specified - at what price. In the event that the volume offered at the specified price exceeds the number of shares the Company wishes to acquire, it is to be possible for the acquisition to be effected in accordance with the ratio of shares tendered (tender ratio). Only where an acquisition is made according to tender ratios rather than participation ratios will it be possible to handle the acquisition process effectively in technical terms. It should also be possible for preference to be given to accepting small offers or small parts of offers up to a maximum of 50 shares per shareholder. This makes it possible to avoid small, generally uneconomical residual amounts, thereby preventing the risk of small shareholders being put at a de facto disadvantage. It also serves to simplify the technical handling of the acquisition process. It should be possible, in all cases, to permit rounding in accordance with common business practice in order to avoid fractions of shares. This also serves to simplify the technical handling in that it allows to ensure that only whole shares are acquired. In all of these cases, the exclusion of any further-reaching tender rights of the shareholders is necessary, and is considered by the Executive Board and the Supervisory Board to be justified and appropriate vis-à-vis the shareholders. The purchase price or the upper and lower limits of the purchase price range offered for each share (not including incidental acquisition costs) must not be more than 10% above or below the price for the Company's shares determined during the closing auction in the Xetra trading system (or a comparable successor system) at the Frankfurt Stock Exchange on the last trading day before the publication of the acquisition offer. If, following the announcement of a public offer to buy or a public call to submit an offer to sell, there are significant variations in the relevant price, the offer or the call to submit an offer to sell may be adjusted. In this case, the average price during the three stock market trading days prior to the public announcement of any such adjustment will be used. The authorisation may be used in whole or in part, once or several times, and in pursuit of one or several objectives. The acquisition may be effected by the Company, by dependent companies or companies that are majority-owned by the Company, or by third parties acting for their account or for the account of the Company. The treasury shares acquired may be sold on the stock exchange. In this case, shareholders have no subscription rights. In accordance with section 71 (1) no. 8 sentence 4 AktG, the sale of treasury shares on the stock exchange - as well as the acquisition of shares on the stock exchange - complies with the principle of equal treatment as defined in section 53a AktG. However, the acquired treasury shares may also be sold by way of an offer to shareholders in compliance with the principle of equal treatment. Furthermore, the Executive Board is authorised to sell the acquired treasury shares in another way or to redeem them. In detail: The proposed resolution authorises the Executive Board to sell the acquired treasury shares, subject to the consent of the Supervisory Board, for cash by means other than a sale on the stock exchange or an offer to shareholders. For this to take place, the shares must be sold at a price that is not significantly below the exchange price (at the time of the sale) of shares of the Company that are subject to the same terms. This authorisation makes use of the possibility for a simplified exclusion of subscription rights permitted under section 71 (1) no. 8 sentence 5 AktG and section 186 (3) sentence 4 AktG, applied analogously. The need to protect shareholders against dilution is accounted for by the fact that the shares may only be sold at a price that is not significantly below the relevant exchange price. The sales price for the treasury shares will be finally determined shortly before the sale takes place. The Executive Board will set any discount from the exchange price as low as possible, taking into account the market conditions at the time of placement. The discount from the exchange price at the time this authorisation is exercised is not expected to be more than 3% and will definitely not be more than 5% of the current exchange price. The authorisation is valid provided that the shares sold subject to an exclusion of subscription rights pursuant to section 186 (3) sentence 4 AktG in aggregate do not exceed 10% of the share capital, either at the time the resolution on this authorisation is passed or at the time this authorisation is exercised. If the share capital at the time the authorisation is exercised is less than on 13 February 2013, the lower share capital amount shall apply. This authorisation should only be exercised such that the limit of 10% of the share capital specified in section 186 (3) sentence 4 AktG is not exceeded in aggregate, i.e. including any exercise of other authorisations to exclude subscription rights in accordance with section 186 (3) sentence 4 AktG. Shareholders generally have the possibility to maintain their stake by purchasing TUI shares on the stock exchange. This option to exclude subscription rights helps the Company to secure the best possible price when selling treasury shares. It enables the Company to take advantage of any opportunities offered by the relevant stock exchange conditions quickly, flexibly and cost-effectively. The sale proceeds that can be achieved by setting a near-market price generally result in a substantially higher cash inflow per share sold than in the case of a share placement with subscription rights. Furthermore, by forgoing the lengthy and expensive subscription rights process, capital requirements can be met quickly by utilising market opportunities that arise in the short term. Although section 186 (2) sentence 2 AktG allows the purchase price to be published three days before the expiry of the subscription period at the latest, the volatility of the stock markets means that a market risk - namely a price-change risk - nonetheless exists for a period of several days, resulting in the possibility of haircuts during the determination of the sales price, and thus in terms that are not near-market. In addition, if subscription rights are granted, the Company is unable to react quickly to favourable market conditions owing to the length of the subscription period. Although the above purpose is also served by the authorised capital pursuant to article 4 (5) of the Company's Charter, the Company should also be given the option, in suitable cases, to achieve this purpose after a repurchase of treasury shares even without increasing its capital, which is a time-consuming and often expensive process owing to the commercial register entry requirement. Treasury shares may, with the consent of the Supervisory Board, also be sold against contributions in kind subject to an exclusion of shareholders' subscription rights. The proposed authorisation is to place the Company in a position to offer treasury shares directly or indirectly as consideration in connection with mergers or acquisitions of companies, parts of companies, interests in companies or other assets (e.g. hotels, ships or aircraft, or receivables). As the Company is exposed to national and global competition, it must be in a position to act quickly and flexibly on the national and international markets at all times. This also includes the possibility to improve its competitive position by merging with other companies or by acquiring companies, parts of companies, interests in companies or other assets. In the individual case, the ideal way to implement this possibility may be to carry out a merger or acquisition in such a way that shares in the acquiring company are granted. Practical experience also shows that, on both national and international markets, shares in the acquiring company are often demanded in return for attractive acquisition targets. In addition, it can be more advantageous to deliver treasury shares than to sell these shares in order to generate the funds required for an acquisition, as selling shares can have the effect of pushing down prices. The authorisation proposed here is to create the necessary leeway permitting the Company to quickly and flexibly take advantage of opportunities in terms of mergers or acquisitions of companies, parts of companies, interests in companies or other assets that may arise on both national and international markets. For this to be possible, the proposed exclusion of subscription rights is essential. By contrast, if subscription rights are granted, it is not possible to deliver treasury shares as consideration for a merger with other companies or for the acquisition of companies, parts of companies or interests in companies so that the Company would have to forgo the related benefits. Although the above purposes are also served by the existing authorised capital pursuant to article 4 (5) of the Company's Charter, the Company is also to be given the option to achieve these purposes in suitable cases after a repurchase of treasury shares even without increasing its capital, which is a time-consuming and often expensive process owing to the commercial register entry requirement. At present, there are no specific plans to exercise this authorisation. Should possibilities to merge with other companies or to acquire companies, parts of companies, interests in companies or other assets arise, the Executive Board will examine carefully whether or not to make use of the option to grant treasury shares. The Executive Board will only do this if it firmly believes that the delivery of TUI shares as consideration for an acquisition is in the interest of the Company. In defining the valuation ratios, the Executive Board will ensure that the interests of the shareholders are suitably accommodated. When assessing the value of the shares granted as compensation, the Executive Board will base its decision-making on the exchange price of the TUI share. A formal link to an exchange price is not intended, largely in order to prevent the results of negotiations being put in question by variations in the exchange price. The Executive Board will report on the details of the exercise of this authorisation at the General Meeting following any merger or acquisition in return for which TUI AG shares were delivered. The authorisation furthermore allows that treasury shares be used subject to an exclusion of shareholders' subscription rights in order to fulfil conversion or subscription rights of holders of convertible bonds, bonds with warrants, profit-sharing rights and/or income bonds (or combinations of these instruments) issued by the Company or other Group companies and carrying warrant or conversion rights or obligations. It can make sense to use treasury shares instead of new shares from a capital increase, either solely or partially, in order to fulfil conversion rights because this is a suitable means of countering a dilution of shareholders' capital holdings and voting rights, which can occur to a certain extent if these rights are fulfilled by delivering newly created shares. The above utilisation options may be used not only in respect of shares that were acquired on the basis of this authorisation resolution. Rather, the authorisation also covers shares acquired pursuant to section 71d sentence 5 AktG. Using these treasury shares in the same way as the shares acquired on the basis of the authorisation resolution is advantageous and can create additional flexibility. Furthermore, it is intended that the aforementioned utilisation options should be available not only to the Company itself but also to dependent companies or companies that are majority-owned by the Company, or to third parties acting for their account or for the account of the Company. According to the proposal, the treasury shares acquired on the basis of this authorisation resolution may also be redeemed by the Company, with the consent of the Supervisory Board, without a new resolution by the General Meeting being required. According to section 237 (3) no. 3 AktG, the Company's General Meeting may decide to redeem its fully paid-in shares without a reduction in the Company's share capital being required. In addition to a redemption of shares with a capital reduction, the proposed authorisation expressly provides for this alternative, although this too is intended to no longer require a new resolution by the General Meeting. If treasury shares are redeemed without a capital reduction, the calculated pro-rata share in the Company's share capital represented by the remaining registered shares automatically increases. The Executive Board therefore is also to be authorised to make the necessary amendment to the Charter with regard to the change in the number of shares that will result from any redemption. Finally, the Executive Board is to be authorised, with the consent of the Supervisory Board, to exclude the subscription rights of shareholders for fractional amounts if the treasury shares are sold by offering them to shareholders. The exclusion of subscription rights for fractional amounts serves to achieve a technically feasible subscription ratio. The shares that are excluded from the shareholders' subscription rights as unallotted fractions will be utilised on the best possible terms for the Company by selling them on the stock exchange or in another way. Due to the restriction to fractional amounts, the possible dilutive effect will be small. Having given due consideration to all the above factors, the Executive Board and the Supervisory Board consider it justified and appropriate vis-à-vis the shareholders to exclude the subscription rights in those cases for the stated reasons, also taking into account the possible dilutive effects suffered by shareholders. If this authorisation is exercised, the Executive Board will notifythe next General Meeting accordingly. Report of the Executive Board to the Annual General Meeting on the exclusion of shareholders' subscription rights pursuant to sections 203 (2) sentence 2 and 186 (4) sentence 2 AktG as proposed in agenda item 6 The authorised capital limited to EUR10,000,000.00 is intended to permit the Executive Board to issue shares up to the stated amount to employees of the Company and its group companies on one or more occasions during a period ending on 12 February 2018. For this purpose, the shareholders' subscription rights must be excluded. This exclusion of shareholders' subscription rights requires the consent of the Supervisory Board of the Company. Participation in the Annual General Meeting Registration Pursuant to article 21 of the Charter, all shareholders of the Company who are entered in the Company's share register on the day of the Annual General Meeting and in respect of whose shareholdings the shareholders themselves or their proxies have registered for attendance by the end of the registration period (midnight on 6 February 2013) are entitled to participate and vote in the Annual General Meeting. Pursuant to article 21 (2) of the Charter, no entries will be made in the share register on the day of the Annual General Meeting and in the six days prior to it. We will write to all shareholders who are entered in the share register on or before 29 January 2013 and such shareholders may then register in the following ways: In writing to the following postal address: TUI AG Aktionärsservice AGM 2013 Postfach 1460 61365 Friedrichsdorf Germany By fax to: +49 (0) 69 22 22 34 29 4 Electronically via the following internet address (from 22 January 2013) www.tui-group.com/en/ir via the link AGM' Shareholders of TUI AG will again have the opportunity this year to register themselves or a proxy and to order admission tickets for the Annual General Meeting or give authorisation and instructions to Company-appointed proxies electronically via the internet. This sevice will be available from 22 January 2013 at www.tui-group.com/ en/ir via the link 'AGM'. The shareholder number and individual access number required for access to the personal internet service are printed on the reverse of the aforementioned letter from us. Shareholders whose registration has been received by the Company by midnight on 6 February 2013 may give authorisation and instructions to Company-appointed proxies, change previously issued instructions or revoke an authorisation using the addresses set out above until midnight on 12 February 2013. This also applies to authorisations and instructions that were given to Companyappointed proxies before 6 February 2013. Admission tickets must have been ordered by midnight on 6 February 2013 at the latest. Shareholders who have not been entered in the share register by 29 January 2013, and not by 6 February 2013 at the latest, can only order admission tickets in writing or by fax from the postal address or fax number listed above (such orders must be received by midnight on 6 February 2013 at the latest). Advice on voting by proxy Shareholders who are registered in the share register and have registered for the Annual General Meeting in time have the option to have their voting right exercised by a credit institution, a shareholder association, the proxies appointed by the Company or another proxy of their choice at the Annual General Meeting. The proxy authorisation must be granted or revoked and proof of authorisation to be provided to the Company must be provided in text form. Authorisation forms can be found in the personal invitation and at www. tui-group.com/en/ir via the link 'AGM'. If shareholders' proxies are required to prove their authorisation to the Company, i.e. if they do not fall under the exception that applies to credit institutions, commercial agents and shareholder associations pursuant to section 135 AktG, the proof of a proxy's appointment may also be provided by sending an e-mail to tui.hv@rsgmbh.com. As well as a copy of the authorisation itself or the confirmation that the authorisation has been granted, the e-mail must at least include the shareholder's name, date of birth and address, the number of shares being represented and the proxy's name and place of residence. The special rules contained in section 135 AktG apply to the authorisation of and exercise of voting rights by credit institutions, shareholder associations and equivalent persons or entities. The following special provisions apply to the authorisation of proxies appointed by the Company. Shareholders of TUI AG have the opportunity to have their voting rights represented at the Annual General Meeting by employees of the Company who are bound to comply with their instructions. Shareholders can grant authorisation and issue instructions to the Company-appointed proxies in writing using the response form included in the personal invitation, or alternatively by fax or via the internet using the above addresses/fax number. The proxies are obliged to vote in accordance with the instructions issued. If no instructions have been issued the authorisation is void and the voting right will not be exercised. If instructions are not clear, the proxies will abstain from voting on the corresponding agenda items. This always applies in the case of unforeseen motions. On receipt of a personal invitation the shareholders receive the corresponding form for granting authorisation and issuing instructions. Advice on counter-motions and nominations pursuant to sections 126 and 127 AktG Counter-motions relating to proposals made by the Executive Board and the Supervisory Board on a particular agenda item and proposals for a possible election of Supervisory Board members and the appointment of the auditor may be addressed to: TUI AG Vorstandsbüro Karl-Wiechert-Allee 4 30625 Hanover Germany Fax: +49 (0)511 566-1996 Email: gegenantraege.hv@tui.com Any motions and nominations sent to other addresses will not be published pursuant to sections 126 and 127 AktG. All motions that are received from shareholders by midnight on Tuesday, 29 January 2013 at the latest and that require publication will be published, together with the relevant shareholder's name, the grounds cited (only required in the case of counter-motions) and any statement made by the management, at www.tui-group.com/en/ir via the link 'AGM'. Advice on supplementary motions pursuant to section 122 (2) AktG Shareholders whose combined stakes represent a total pro rata amount of EUR500,000 of the Company's share capital may request, analogous to section 122 (1) AktG, that items are included in the agenda and published. Each new item must be accompanied by the pertinent grounds or a resolution proposal. The request for an addition to the agenda must have been received in writing by the Company by midnight on Sunday, 13 January 2013 at the latest. The applicants must prove that they have held the relevant shares for at least three months prior to the date on which the request was received by the Company and that they will continue to hold these shares until a decision on the request for an addition to the agenda has been taken. If the request is denied, applicants may have recourse to the courts pursuant to section 122 (3) AktG. Advice on the shareholder's right to information Pursuant to section 131 AktG, any shareholder must, on request, be given information by the Executive Board on the Company's affairs at the Annual General Meeting, provided such information is necessary in order to make an informed judgement on an agenda item. This right to information also extends to TUI AG's legal and commercial relations with affiliated companies, as well as the situation of the group as a whole and the companies included in the consolidated financial statements. Pursuant to article 22 (2) sentence 2 of the Company's Charter, the chairman may apply reasonable time limits to the question and answer rights of shareholders at the Annual General Meeting. The Executive Board may refuse to disclose information citing the grounds set out in section 131 (3) AktG, in particular if the information was available on the Company's website and at the Annual General Meeting and was continuously available for at least seven days prior to the beginning of the Annual General Meeting. If a shareholder is refused information, that shareholder may, pursuant to section 131 (5) AktG, request that the question and the reason for such refusal be included in the notarial record of the Annual General Meeting and, if appropriate, apply to a court to rule on the right to information pursuant to section 132 AktG. Information pursuant to section 124a AktG The website of TUI AG via which information pursuant to section 124a AktG can be accessed is: www.tui-group.com/en/ir via the link 'AGM' For further information, the TUI shareholder AGM hotline is available under (0800) 56 00 841 (from within Germany) or +49 (0) 69 91 06 49 72 (from abroad) from Monday to Friday between 8 a.m. and 6 p.m. (CET). Berlin/Hanover, December 2012 The Executive Board Further inquiry note: Investor Relations Kontakt: Björn Beroleit, Telefon: +49 (0) 511 566 1310 Nicola Gehrt, Telefon: +49 (0) 511 566 1435 Media Kontakt: Uwe Kattwinkel, Telefon: +49 (0) 511 566 1417 Robin Zimmermann, Telefon: +49 (0) 511 566 1488 end of announcement euro adhoc -------------------------------------------------------------------------------- issuer: TUI AG Karl-Wiechert-Allee 4 D-30625 Hannover phone: +49(0)511 566 - 1425 FAX: +49(0)511 566 - 1096 mail: investor.relations@tui.com WWW: http://www.tui-group.com sector: Transport ISIN: DE000TUAG000 indexes: MDAX, CDAX, HDAX, Prime All Share stockmarkets: regulated dealing: Hannover, Berlin, München, Hamburg, Düsseldorf, Stuttgart, regulated dealing/prime standard: Frankfurt language: English
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