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 2012 Annual General Meeting on Wednesday 15 February 2012 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 251,863,320 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 G9B 3 TUA G9B DE 000 TUA G0B 2 TUA G0B Voting shares: ISIN Code WKN DE 000 TUA G17 4 TUA G17 Agenda for the Annual General Meeting of TUI AG on 15 February 2012 1. Presentation of the approved annual financial statements for the 2010/11 financial year as at 30 September 2011, 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 2010/11 financial year from 1 October 2010 to 30 September 2011 The net profit for the year is EUR185,956,738.19. After deduction of the EUR92,440,492.12 that was transferred to other revenue reserves and taking account of the retained earnings brought forward of EUR13,625,345.46, the resulting net profit is EUR107,141,591.53. The Executive Board and the Supervisory Board propose carrying forward the reported net profit to new account. 3. Resolution on the ratification of the actions of the Executive Board for the 2010/11 financial year from 1 October 2010 to 30 September 2011 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 2010/11 financial year from 1 October 2010 to 30 September 2011 The Executive Board and the Supervisory Board recommend that the actions be ratified. 5. Resolution on the appointment of the auditor for the 2011/12 financial year from 1 October 2011 to 30 September 2012 Based on the recommendation of the Audit Committee, the Supervisory Board proposes that PricewaterhouseCoopers Aktiengesellschaft Wirtschaftsprüfungsgesellschaft, Hanover, be appointed as auditor for the 2011/12 financial year from 1 October 2011 to 30 September 2012 and also for the review of the halfyear financial report for the first half of the 2011/12 financial year. 6. New authorisation to issue convertible bonds, bonds with warrants, profit-sharing rights or income bonds (or combinations thereof) with the possibility of excluding subscription rights pursuant to section 221 (4) and section 186 (3) sentence 4 of the German Stock Corporation Act (Aktiengesetz, AktG) and creation of new conditional capital while cancelling the conditional capital existing under article 4 (7) of the TUI AG Charter (amendment to the Charter) Under agenda item 10 of the Annual General Meeting on 10 May 2006, the Executive Board was authorised, subject to the consent of the Supervisory Board, to issue convertible bonds, bonds with warrants, profit-sharing rights or income bonds (or combinations thereof) (hereinafter collectively referred to as "bonds"). The Executive Board exercised this power, with the consent of the Supervisory Board in 2007, issuing a convertible bond in a nominal amount of EUR694,000,000.00. This convertible bond has now been repaid in full, and the conditional capital of up to EUR100,000,000.00 created for this purpose pursuant to article 4 (7) of the Charter is no longer required. Moreover, the authorisation granted to the Executive Board on 10 May 2006 to issue bonds expired on 9 May 2011. The Executive Board has made partial use of each of the other authorisations to issue bonds granted by the Annual General Meetings in 2008 and 2009, issuing two convertible bonds in 2009 and 2011. The following authorisation should represent an additional authorisation to those granted in 2008 and 2009. The conditional capital created by resolution of the Annual General Meeting in 2008 and 2009 pursuant to article 4 (6) and (9) of the Charter should not be affected by the creation of new conditional capital. In view of the volatile market conditions and in order to ensure that the Company continues to have the necessary flexibility to use this key financing instrument in future, the proposal is made to the Annual General Meeting to pass a resolution granting new authorisation to issue bonds and creating new conditional capital, while cancelling the conditional capital set out in article 4 (7) of the Charter. The scope of the proposed new authorisation should cover an amount of EUR1,000,000,000.00. The Executive Board should also be authorised to exclude the shareholders´ right to subscribe to the bonds. In order to ensure that the proposed authorisation scope can still be used in full in the case of subsequent adjustments in respect of conversion or option prices, the new conditional capital, which will be created upon cancellation of the conditional capital set out in article 4 (7) of the Charter and which serves to fulfil conversion or option rights and obligations, should be EUR120,000,000.00, although if subscription rights are excluded in line with section 186 (3) sentence 4 AktG, the shares to be issued to service conversion or option rights or obligations must not exceed 10% of the share capital either at the time any subsequent authorisations take effect or at the time they are exercised, if this value is lower. The Executive Board and the Supervisory Board recommend that the following resolution be passed: a) Authorisation to issue convertible bonds, bonds with warrants, profit-sharing rights or income bonds (or combinations thereof) and to exclude subscription rights aa) Duration of authorisation, nominal amount, number of shares, maturity, contribution in kind, currency, issue by Group companies The Executive Board is authorised, subject to the consent of the Supervisory Board, to issue registered or bearer convertible bonds, bonds with warrants, profit-sharing rights or income bonds (or combinations thereof) (hereinafter collectively referred to as "bonds") with a total nominal amount of up to EUR1,000,000,000.00 on one or more occasions up until 14 February 2017 (inclusive) and to grant holders of these bonds conversion or option rights to Company shares representing a pro rata amount of the share capital of up to EUR120,000,000.00, as defined in more detail in the terms and conditions of the bonds (hereinafter also referred to as the "terms and conditions") or to furnish these bonds with conversion or option obligations. The bonds and the conversion or option rights and obligations may be issued with or without a fixed maturity. The bonds may be issued in return for contributions in kind. The bonds may be issued in euros or in the legal currency of an OECD country, provided that the equivalent in euro does not exceed the stipulated amount. The bonds may be issued by Group companies that are located downstream of the Company; in this case, the Executive Board is authorised, subject to the consent of the Supervisory Board, to assume the guarantee for the bonds on behalf of the Company and to grant or impose conversion or option rights or obligations relating to Company shares to or on the holders of these bonds. ab) Granting and exclusion of subscription rights The shareholders are fundamentally entitled to subscription rights in respect of the bonds. Such subscription rights can also be granted indirectly insofar as one or more credit institutions, or equivalent companies as specified in section 186 (5) sentence 1 AktG, underwrite the bonds, on the agreement that the bonds are offered to the shareholders. If bonds are issued by a downstream Group company, the Company must ensure that the statutory subscription rights for the Company´s shareholders are guaranteed. The Executive Board is, however, authorised to exclude shareholders´ subscription rights to the bonds, subject to the consent of the Supervisory Board, in the following cases: in respect of fractional shares; insofar as it is necessary in order to ensure that the holders of bonds with conversion or option rights or obligations relating to Company shares that have already been issued are granted subscription rights in the scope which would be available to them once these conversion or option rights had been exercised or these conversion or option obligations fulfilled; insofar as bonds with conversion or option rights or obligations are issued for cash and the issue price is not substantially lower than the theoretical market value of the bonds calculated on the basis of acknowledged methods of financial mathematics, although this only applies insofar as the shares to be issued in order to service the conversion or option rights or obligations under the bonds do not exceed 10% of the share capital in total either at the time any subsequent authorisations take effect or at the time they are exercised, if this value is lower. The above authorised volume of 10% of the share capital shall be reduced by the proportion of share capital represented by shares, or to which conversion or option rights or obligations under any bonds relate, which were issued or sold on or after 15 February 2012 subject to an exclusion of subscription rights by applying section 186 (3) sentence 4 AktG directly, analogously or mutatis mutandis; insofar as they are issued in return for contributions in kind, provided the value of the contribution in kind reasonably reflects the market value of the bonds calculated as described in the previous bullet point. Where profit-sharing rights or income bonds without conversion or option rights or obligations are issued, the Executive Board is authorised, subject to the consent of the Supervisory Board, to exclude shareholders´ subscription rights entirely, provided these profit-sharing rights or income bonds resemble debt obligations, i.e. do not represent membership rights in the Company, do not grant a share in any liquidation proceeds and the interest due is not calculated on the basis of the annual net earnings, the net profit or the dividend. Moreover, in this case, the interest due and issue price of the profit-sharing rights or income bonds must reflect the market conditions for comparable debt instruments prevailing at the time of issue. ac) Conversion right Where bonds with conversion rights are issued, the holders can convert their bonds into Company shares in line with the terms and conditions. The proportion of share capital represented by the shares to be issued upon conversion must not exceed the lower of the nominal amount of the bond and its issue price. The conversion rate is calculated by dividing the nominal amount of a bond by the defined conversion price for a Company share. The conversion rate may also be calculated by dividing the issue price of a bond (if lower than the nominal amount) by the defined conversion price for a Company share. An additional cash payment can also be specified. It is also possible to specify that fractional shares are consolidated and/or settled in cash. ad) Option right Where bonds with warrants are issued, one or more warrants entitling the holders to subscribe to Company shares in line with the terms and conditions will be attached to each bond. It is possible to specify that fractional shares are consolidated and/or settled in cash. The proportion of share capital represented by the shares to be subscribed for each bond must not exceed the lower of the nominal amount of the respective bond and its issue price. ae) Conversion or option obligation The terms and conditions may also provide for a conversion or option obligation at maturity or at another point in time (in each case "final maturity") or for the Company to have the right to grant holders of the bonds on final maturity shares in the Company or another listed company in place of the whole or part of the payment due. In such cases, the conversion or option price for a share may reflect the average closing price of the relevant company in Xetra trading on the Frankfurt Stock Exchange (or a corresponding successor system) in the 10 trading days prior to or following the final maturity date, even if this is lower than the minimum price specified in paragraph ff). Section 9 (1) in conjunction with section 199 (2) AktG must be observed. af) Conversion/option price, anti-dilution protection The conversion or option price is either (if subscription rights are excluded) at least 60% of the average closing price of the Company´s shares in Xetra trading on the Frankfurt Stock Exchange (or a corresponding successor system) over the 10 trading days prior to the day on which the resolution on issuing bonds is passed by the Executive Board or (if subscription rights are granted) at least 60% of the average closing price of the Company´s shares in Xetra trading on the Frankfurt Stock Exchange (or a corresponding successor system) during the subscription period, with the exception of any days in the subscription period that are required in order that the conversion or option price can be published on time in accordance with section 186 (2) sentence 2 AktG. If, during the term of the bonds granting or imposing a conversion or option right or obligation, the economic value of the existing conversion or option rights or obligations is diluted and no subscription rights are granted as compensation, the conversion or option rights or obligations may, notwithstanding section 9 (1) AktG, be adjusted to maintain their value, unless such adjustment is already required by law. The proportion of share capital represented by the shares to be subscribed per bond must not, in any case, exceed the lower of the nominal amount per bond and its issue price. ag) Other possible structures The terms and conditions of the bonds may in each case specify that the Company has the option, when conversion or option rights or obligations are exercised, also to grant new shares from conditional capital, treasury shares held by the Company or existing shares of another listed company. Moreover, they may also specify that the Company will not grant the holder of conversion or option rights Company shares, but will rather pay out the cash value. ah) Authorisation to determine the further terms and conditions of the bonds The Executive Board is authorised, subject to the consent of the Supervisory Board, to define the further details relating to the issue and structure of the bonds, in particular the interest rate, the interest structure, the issue price, maturity, denomination and conversion or option period and any variability in the conversion ratio. Where Group companies are to issue the bonds, the Executive Board must also ensure that the corporate bodies of the Group companies issuing the bonds are in agreement. b) Creation of new conditional capital The share capital is to be conditionally increased by up to EUR120,000,000.00 (in words: one hundred and twenty million euro) by issuing up to 46,939,920 new registered shares with dividend rights from the beginning of the financial year in which they were issued. The conditional capital increase allows shares to be granted to holders of convertible bonds, bonds with warrants, profit-sharing rights or income bonds (or combinations thereof) with conversion or option rights or obligations issued on the basis of the above authorisation, insofar as they were issued for cash. The new shares will be issued at the conversion or option price to be determined on the basis of the above authorisation. The conditional capital increase may only be effected to the extent that conversion or option rights under bonds issued for cash are exercised or conversion or option obligations under such bonds are fulfilled, providing no other forms of fulfilment are employed when servicing such obligations. The Executive Board is authorised, subject to the consent of the Supervisory Board, to determine the further details of the implementation of the conditional capital increase. c) Amendment to the Charter Article 4 (7) of the Charter is to be cancelled and replaced with the following provision: "The share capital is conditionally increased by up to EUR120,000,000.00 (in words: one hundred and twenty million euro) by issuing up to 46,939,920 new registered shares with dividend rights from the beginning of the financial year in which they were issued (Conditional Capital 2012). The conditional capital increase will be effected only to the extent that holders of convertible bonds, bonds with warrants, profitsharing rights or income bonds (or combinations thereof) with conversion or option rights or obligations issued by TUI AG or its Group companies for cash on or before 14 February 2017 on the basis of the authorisation granted by the Annual General Meeting on 15 February 2012 exercise their conversion or option rights or to the extent that conversion or option obligations under these bonds are fulfilled and to the extent that no other forms of fulfilment are employed when servicing such obligations. The Executive Board is authorised, subject to the consent of the Super visory Board, to determine the further details of the implementation of the conditional capital increase." The Supervisory Board is authorised to amend article 4 (7) of the Charter to reflect each issue of shares using the Conditional Capital 2012. Report on item 6 of the agenda (New authorisation to issue convertible bonds, bonds with warrants, profit-sharing rights or income bonds (or combinations thereof)) Regarding the relationship between the authorisations to exclude subscription rights pursuant to section 186 (3) sentence 4 AktG in agenda item 6 (Issuing bonds) and article 4 (5) of the Charter The authorisations set out in item 6 of the agenda and article 4 (5) of the Charter provide for the possibility, citing the provisions of section 186 (3) sentence 4 AktG, of issuing bonds and increasing the Company´s share capital, while in each case excluding the shareholders´ subscription rights, provided the issue or sale is effected close to the trading price or market value and the statutory limit of 10% of share capital in total, which applies to this so-called `simplified´ process for excluding subscription rights, is not exceeded. In respect of all authorisations granted on the basis of section 186 (3) sentence 4 AktG, the Executive Board, subject to the consent of the Supervisory Board, will only exercise its resulting power insofar as the limit of 10% of the share capital existing at the time the Annual General Meeting passed the resolution on the authorisations (i.e. 15 February 2012) is not exceeded during the valid term of the respective authorisation until it is exercised. If, at the time the authorisation is exercised, the share capital is lower than on 15 February 2012, the lower sum applies. Irrespective of whether the relevant authorisations with the possibility of excluding subscription rights are exercised individually or cumulatively, the limit of 10% of the share capital that applies under section 186 (3) sentence 4 AktG in the case of an exclusion of subscription rights should not be exceeded in total. The exclusive purpose of the various proposed and existing authorisations with the possibility of excluding subscription rights in line with section 186 (3) sentence 4 AktG is to give the Executive Board the option to select the most suitable instrument in view of the actual circumstances and taking the interests of both the shareholders and the Company into account, and not to be able to exclude shareholders´ subscription rights over and above the 10% limit specified in section 186 (3) sentence 4 AktG by exploiting the various options open to them on several occasions. Regarding item 6 of the agenda (New authorisation to issue convertible bonds, bonds with warrants, profit-sharing rights or income bonds (or combinations thereof)) The Executive Board made use of the authorisation granted to it on 10 May 2006 to issue convertible bonds, bonds with warrants, profitsharing rights or income bonds (or combinations thereof) (hereinafter also collectively referred to as "bonds"), subject to the consent of the Supervisory Board, in 2007, issuing a convertible bond. This convertible bond has now been repaid in full, and the conditional capital of up to EUR100,000,000.00 created for this purpose pursuant to article 4 (7) of the Charter is no longer required. Moreover, the authorisation granted to the Executive Board on 10 May 2006 to issue bonds expired on 9 May 2011. The Executive Board has made partial use of each of the other authorisations to issue bonds granted by the Annual General Meetings in 2008 and 2009, issuing two bonds in 2009 and 2011. The new authorisation should represent an additional authorisation to those granted in 2008 and 2009. The conditional capital created by resolution of the Annual General Meetings in 2008 and 2009 pursuant to article 4 (6) and (9) of the Charter should not be affected by the creation of new conditional capital. In order to ensure that the Company continues to have the necessary flexibility in raising capital, a new authorisation to issue bonds with a total nominal amount of up to EUR1,000,000,000.00 is proposed. This enables the Company to respond flexibly to the market conditions prevailing when a bond is issued and thus, in the interests of the Company and its shareholders, to achieve the best possible financing terms. The conditional capital to be created upon cancellation of the conditional capital pursuant to article 4 (7) of the Charter, which will serve to fulfil conversion or option rights or obligations resulting from the authorisation, should be EUR120,000,000.00 in total. The ability to issue bonds offers TUI AG another option, besides the traditional methods of debt and equity financing, namely to exploit attractive alternative financing instruments available on the capital market depending on the prevailing market conditions and thus to lay the foundations for future business developments. Moreover, the ability to grant conversion or option rights and obligations also offers the Company the possibility of securing as equity at least part of the funds borrowed when issuing bonds. By issuing bonds, the Company can also borrow capital on attractive terms which, depending on the terms and conditions of the bonds, can be booked as equity or near-equity for the purposes of credit assessments and on balance sheets. The conversion or option premiums generated and the designation as equity boost the Company´s capital base and thus enable it to access cheaper financing options. The other options provided for, namely to create conversion or option obligations, as well as conversion or option rights and to combine convertible bonds, bonds with warrants, profit-sharing rights or income bonds, allows greater room for manoeuvre when developing these financial instruments. Since, in the field of hybrid financing instruments, products with an unlimited term have become established, the authorisation does not specify a particular term for bonds with conversion or option rights or obligations. The authorisation also gives the Company the necessary flexibility to decide whether to issue the bonds itself or to place them with directly or indirectly associated companies. Bonds may be issued in euros or in the legal currency of an OECD country. In order to be able to make the most of the spectrum of possible capital market instruments that carry conversion or option rights or obligations, it would appear appropriate to once again specify that the permitted issue volume under the proposed authorisation is limited to a total nominal amount of EUR1,000,000,000.00 and the conditional capital which serves to fulfil the conversion or option rights or obligations is EUR120,000,000.00. This ensures that the scope of this authorisation can be exploited in full. The number of shares required to fulfil any conversion or option rights or obligations under a bond with a particular issue volume generally depends on the trading price of TUI shares when the bond is issued. Having sufficient conditional capital available ensures that it is possible to exploit the full scope of the authorisation for issuing convertible bonds or bonds with warrants. Shareholders must, as a rule, be granted subscription rights where convertible bonds, bonds with warrants, profit-sharing rights or income bonds are issued. Where convertible bonds or bonds with warrants (or profit-sharing rights or income bonds) with conversion or option rights or obligations are issued, the Executive Board should, in line with section 186 (3) sentence 4 AktG, be authorised to exclude shareholders´ subscription rights, subject to the consent of the Supervisory Board, provided the issue price of the bonds is not substantially lower than their market value. This may be useful in order to be able to respond quickly to favourable market conditions and to be in a position to fast and flexibly place a bond with attractive terms on the market. Stock and credit markets have become much more volatile in recent years. It is thus imperative that the Executive Board can react to market developments as quickly as possible when issuing bonds in order to ensure the best possible result. Favourable conditions that are as close-tomarket as possible can generally only be achieved if the Company is not bound to them for too long an offer period. In the case of rights issues, it is as a rule necessary to take a not insubstantial haircut in order to ensure the sustained attractiveness of the terms and thus the issue´s success prospects for the entire offer period. Although section 186 (2) AktG permits that the subscription price (and thus, in the event of bonds with conversion or option rights or obligations, the terms and conditions of these bonds) be published up to three days before the end of the subscription period, the volatility of the stock and credit markets means that a certain market risk then exists over several days, which makes haircuts necessary when defining the terms and conditions, which are thus no longer close-to-market. Moreover, if the Company were to grant the shareholders subscription rights, it would be more difficult to achieve an alternative placement with third parties or this would generate additional expense, owing to the uncertainty as to whether or not shareholders will actually exercise their subscription rights (subscription behaviour). Finally, if the Company grants subscription rights it cannot respond quickly to changes in market conditions due to the length of the subscription period, and this in turn can mean that the Company is forced to accept less favourable conditions when raising capital. The fact that the bonds are issued at a price that is not substantially lower than the market value ensures that shareholders´ interests are protected. The market value must be calculated on the basis of acknowledged methods of financial mathematics. When setting the price, the Executive Board will take account of the prevailing capital market conditions and endevour to keep the difference between the issue price and market value as low as possible. This ensures that the hypothetical market value of the subscription rights would be close to zero, and that the shareholders would not suffer any significant financial disadvantage as a result of their subscription rights being excluded. Insofar as the Executive Board deems necessary in view of the prevailing situation, it will refer to specialist advice and rely on the support of experts. Such advice may be provided by the underwriting banks supporting the issue or by an independent investment bank or auditor. All of this ensures that the value of the Company´s shares is protected against significant dilution as a result of the exclusion of subscription rights. The shareholders are also able to maintain the proportion of their shareholding by purchasing bonds via the stock exchange on almost equal terms, thus ensuring that their financial interests have been adequately taken into account. The power to exclude subscription rights pursuant to section 186 (3) sentence 4 AktG applies only to bonds carrying rights to shares representing a proportion of the share capital that does not exceed 10% in total either at the time the authorisation takes effect or at the time the authorisation is exercised, if this value is lower. The above authorised volume of 10% of the share capital is to be reduced by the proportion of share capital represented by shares, or to which conversion or option rights or obligations under any bonds relate, which were issued or sold on or after 15 February 2012 subject to an exclusion of subscription rights by applying section 186 (3) sentence 4 AktG directly, analogously or mutatis mutandis. This reduction is effected in the interests of the shareholders to ensure that their shareholding is subject to as little dilution as possible. Where profit-sharing rights or income bonds without conversion or option rights or obligations are to be issued, the Executive Board is authorised, subject to the consent of the Supervisory Board, to exclude shareholders´ subscription rights entirely, provided these profit-sharing rights or income bonds resemble debt obligations, i.e. do not represent membership rights in the Company, do not grant a share in any liquidation proceeds and the interest due is not calculated on the basis of the annual net earnings, the net profit or the dividend. Moreover, in this case, the interest due and issue price of the profit-sharing rights or income bonds must reflect the market conditions for comparable debt instruments prevailing at the time of issue. If the above requirements are met, the exclusion of subscription rights does not place the shareholders at a disadvantage, since the profit-sharing rights or income bonds do not represent membership rights and do not grant a share in any liquidation proceeds or in profits generated by the Company. While the bonds may provide for any interest payable to be subject to annual net earnings, net profit or a dividend being generated, it would not be permissible for higher net earnings, higher net profit or a higher dividend to generate higher interest. The issue of profit-sharing rights or income bonds therefore neither changes nor dilutes the shareholders´ voting rights nor their participation in the Company and its profits. Moreover, the binding requirement that where subscription rights are excluded the bonds are issued on fair market terms ensures that subscription rights have no significant value. The above possibilities for excluding subscription rights give the Company the flexibility to respond quickly and exploit favourable capital market situations and puts it in a position to respond flexibly and quickly to secure low interest and/or favourable demand for a bond issue. Excluding subscription rights, and thus eliminating the lead time, brings decisive advantages, both in view of the costs of raising capital and in view of the placement risk as compared to bonds with subscription rights. Where subscription rights are excluded, the haircut and the placement risk, which would otherwise apply, can be reduced, thus enabling the Company to raise capital more cheaply, which is in its own interests and those of its shareholders. Where bonds with conversion or option rights or obligations are issued with subscription rights excluded, the conversion or option price for a share is at least 60% of the average price of TUI shares in Xetra trading on the Frankfurt Stock Exchange (or a comparable successor system) over the 10 trading days prior to the day on which the resolution was passed by the Executive Board to issue the bonds. Insofar as shareholders have subscription rights in respect of the bonds, it is also possible to define the conversion or option price for a share on the basis of the average price of the Company´s shares in Xetra trading on the Frankfurt Stock Exchange (or a comparable successor system) during the subscription period, with the exception of the days within the subscription period that are necessary in order to publish the conversion or option price on time in accordance with section 186 (2) sentence 2 AktG, although this price must also be at least 60% of the average price of TUI shares in Xetra trading on the Frankfurt Stock Exchange (or a comparable successor system). The Executive Board is also authorised, subject to the consent of the Supervisory Board, to exclude fractional shares from the subscription rights. Such fractional shares may result from the amount of the respective issue volume and from ensuring a practicable subscription ratio. The bonds representing fractional shares excluded from the shareholders´ subscription rights will be realised either by sale on the stock exchange or by other means in the best interests of the Company. In this case, excluding the subscription rights facilitates the processing of the capital increase. The Executive Board should also have the possibility of excluding shareholders´ subscription rights, subject to the consent of the Supervisory Board, in order to grant the holders of bonds with conversion or option rights or obligations subscription rights to the extent they would be entitled to such rights after exercising their conversion or option rights or once their conversion or option obligations have been fulfilled. This means that it is possible to grant holders of conversion or option rights or obligations already existing at the time subscription rights as a form of anti-dilution protection, rather than having to reduce the conversion or option price. Furnishing bonds with such anti-dilution protection is standard market practice. Bonds may also be issued in return for contributions in kind, insofar as this is in the interests of the Company. In this case, the Executive Board is authorised, subject to the consent of the Supervisory Board, to exclude shareholders´ subscription rights, provided the value of the contributions in kind reasonably reflects the hypothetical market value of the bonds calculated on the basis of acknowledged methods of financial mathematics. This in turn makes it possible to grant bonds as consideration for acquisitions in appropriate individual cases, for instance when purchasing companies, parts of companies, interests in companies or other assets (such as hotels, ships or aeroplanes). In such cases, it may prove necessary during negotiations that a form of consideration other than cash is offered. Thepossibility of offering bonds as consideration thus offers a competitive edge in respect of interesting acquisitions as well as the necessary room for manoeuvre to exploit opportunities for acquiring companies, parts of companies, interests in companies or other assets while protecting the Company´s own liquidity. This may also prove useful in view of achieving an optimum financing structure. The Executive Board will in each case carefully consider whether or not to use its power to issue convertible bonds or bonds with warrants (or profit-sharing rights or income bonds) in return for contributions in kind while excluding subscription rights. It will only exercise this power if it is in the interests of the Company and thus of its shareholders. The proposed new conditional capital is designed to service the conversion or option rights or to fulfil the conversion or option obligations relating to Company shares attached to convertible bonds, bonds with warrants, profit-sharing rights or income bonds, insofar as these bonds were issued for cash. Other forms of fulfilment may be used in place of the above. Conversion or option rights or obligations under bonds issued in return for contributions in kind, however, cannot be serviced from the new conditional capital. 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 8 February 2012) 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 31 January 2012 and such shareholders may then register in the following ways: In writing to the following postal address: TUI Aktionärsservice AGM 2012 Max-Planck-Straße 9a 61334 Friedrichsdorf Germany By fax to: +49 (0) 69 22 22 34 29 4 Electronically via the following internet address (from 24 January 2012) 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 service will be available from 24 January 2012 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 8 February 2012 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 14 February 2012. This also applies to authorisations and instructions that were given to Company appointed proxies before 8 February 2012. Admission tickets must have been ordered by midnight on 8 February 2012 at the latest. Shareholders who have not been entered in the share register by 31 January 2012, and not by 8 February 2012 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 8 February 2012 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 5 66-19 96 E-mail: 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, 31 January 2012 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, 15 January 2012 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, January 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/prime standard: Frankfurt, regulated dealing: Berlin, Hamburg, Stuttgart, Düsseldorf, Hannover, München language: English
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