AGM Information • Feb 14, 2024
AGM Information
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At the annual general meeting of TUI AG (the Company) held virtually at 10:00 a.m. GMT (11:00 hours CET) on Tuesday, 13 February 2024, each of the resolutions set out below were duly passed by the majorities required by applicable German law.
The Supervisory Board and the Executive Board propose that the actions of the members of the Executive Board in the financial year that ended on 30 September 2023 be approved.
Due to the fact that TUI AG's shares are listed on the London Stock Exchange ("LSE") and in view of the corporate governance standards applicable there, approval is to take place on an individual basis, i.e. a separate resolution is to be passed for each member. The actions of the following members holding office on the Executive Board in the preceding financial year are to be approved: Sebastian Ebel (CEO), David Burling, Mathias Kiep, Peter Krueger, Sybille Reiss and Frank Rosenberger.
The Executive Board and the Supervisory Board propose that the actions of the members of the Supervisory Board in the financial year that ended on 30 September 2023 be approved.
Due to the fact that TUI AG's shares are listed on the LSE and in view of the corporate governance standards applicable there, approval is to take place on an individual basis, i.e. a separate resolution is to be passed for each member. The actions of the following members holding office on the Supervisory Board in the preceding financial year are to be approved: Dr Dieter Zetsche (Chairman), Frank Jakobi (Deputy Chairman), Ingrid-Helen Arnold, Sonja Austermühle, Christian Baier, Andreas Barczewski, Peter Bremme, María Garaña Corces, Dr Jutta A. Dönges, Prof. Dr Edgar Ernst, Wolfgang Flintermann, Stefan Heinemann, Janina Kugel, Coline Lucille McConville, Helena Murano, Mark Muratovic, Anette Strempel, Joan Trían Riu, Tanja Viehl and Stefan Weinhofer.
Based on the recommendation of the Audit Committee, the Supervisory Board proposes that Deloitte GmbH Wirtschaftsprüfungsgesellschaft, Hanover, be appointed as auditor of the annual financial statements and the consolidated financial statements for the financial year that will end on 30 September 2024 and also for the audit review of the half-year financial report for the first half of such financial year. The Supervisory Board further proposes that Deloitte GmbH Wirtschaftsprüfungsgesellschaft, Hanover, be appointed as auditor for a potential review of additional interim financial information within the meaning of section 115 (7) of the German Securities Trading Act (Wertpapierhandelsgesetz) for the financial years that will end on 30 September 2024 and on 30 September 2025 up to the next Annual General Meeting.
5. Resolution on the authorisation of the Executive Board to increase the share capital (Authorised Capital 2024/I) of the Company with the option to disapply shareholders' pre-emption rights in accordance with, inter alia, sections 203 (2), 186 (3) sentence 4 AktG, while cancelling the previous authorisations pursuant to Article 4 (4) (Authorised Capital
By the resolution under agenda item 5 of the Annual General Meeting of 8 February 2022, the Executive Board was authorised, subject to the consent of the Supervisory Board, to increase the Company's share capital by up to EUR 162,291,441.00 (in words: Euro one hundred and sixty-two million two hundred and ninety-one thousand four hundred and forty-one) by issuing new registered shares with the option to disapply pre-emption rights pursuant to section 186 (3) sentence 4 AktG (Authorised Capital 2022/I). As this authorisation was partly utilised in March 2023, it is proposed that a new authorisation be granted in order to ensure that the Executive Board continues to have the necessary means for raising capital at its disposal and will also be able to adjust the Company's equity resources in order to meet its business requirements in the future. At the same time, it is to be ensured that authorisations on the disapplication of preemption rights, insofar as these are based on direct, indirect or analogous application of section 186 (3) sentence 4 AktG, are limited to a share volume of 10% in aggregate of the share capital.
The authorisation of the Executive Board to increase the share capital pursuant to Article 4 (5) of the Charter (Authorised Capital 2022/I) is therefore to be cancelled and a new authorised capital (Authorised Capital 2024/I) and a corresponding restatement of Article 4 (5) of the Charter are to be resolved.
In addition, the authorisation of the Executive Board to increase the share capital by issuing new registered shares to employees pursuant to Article 4 (4) of the Charter (Authorised Capital 2018) has expired on 12 February 2023. Therefore, by the resolution under agenda item 5, Article 4 (4) of the Charter shall be deleted without replacement.
The Executive Board and Supervisory Board therefore propose that the following resolution be passed:
The Executive Board will be authorised, subject to the consent of the Supervisory Board, to increase the share capital of the Company once or several times until 12 February 2029 (inclusive) by an amount not to exceed EUR 50,743,103.00 (in words: Euro fifty million seven hundred and forty-three thousand one hundred and three) in total (Authorised Capital 2024/I) by issuing new registered shares in return for contributions in cash. Shareholders are, in principle, entitled to pre-emption rights. The shares may be acquired by one or several banks with the obligation that the shares be offered to the shareholders for subscription. The Executive Board may, with the consent of the Supervisory Board, disapply shareholders' pre-emption rights if the issue amount of the new shares is not significantly lower than the market price for previously issued shares with the same terms.
However, the total portion of the share capital attributable to new shares for which pre-emption rights have been disapplied under these authorisations must not – together with the portion of the share capital attributable to new shares from authorised capital or relating to conversion or warrant rights or obligations from bonds that were sold or issued on or after 13 February 2024 subject to the disapplication of pre-emption rights based on direct, indirect or analogous application of section 186 (3) sentence 4 AktG – exceed 10% of the share capital; this threshold is to be calculated on the basis of the amount of the share capital existing either on 13 February 2024 or at the time the new shares are issued, whichever is lower. When calculating the aforementioned 10%, shares to be granted to creditors of the bonds under the terms and conditions of these bonds for purposes of protection against dilution (e.g. in the event of a cash capital increase with pre-emption rights during the term of the bonds after the issue of the bonds) will not be taken into account. The Executive Board may further, subject to the consent of the Supervisory Board, disapply shareholders' pre-emption rights in order to avoid fractional amounts.
The Executive Board is authorised, subject to the consent of the Supervisory Board, to determine the further details of the capital increase and its implementation.
The Authorised Capital 2022/I resolved by the Annual General Meeting on 8 February 2022 will be cancelled with effect from the date the resolution of the Annual General Meeting on the creation of Authorised Capital 2024/I takes effect by registration in the commercial register.
Article 4 (5) of the Charter will be restated as follows:
"The Executive Board is authorised, subject to the consent of the Supervisory Board, to increase the share capital of the Company once or several times until 12 February 2029 (inclusive) by an amount not to exceed EUR 50,743,103.00 (in words: Euro fifty million seven hundred and forty-three thousand one hundred and three) in total (Authorised Capital 2024/I) by issuing new registered shares in return for contributions in cash. Shareholders are, in principle, entitled to pre-emption rights. The shares may be acquired by one or several banks with the obligation that the shares be offered to the shareholders for subscription. The Executive Board may, with the consent of the Supervisory Board, disapply shareholders' pre-emption rights if the issue amount of the new shares is not significantly lower than the market price for previously issued shares with the same terms.
However, the total portion of the share capital attributable to new shares for which pre-emption rights have been disapplied under these authorisations must not – together with the portion of the share capital attributable to new shares from authorised capital or relating to conversion or warrant rights or obligations from bonds that in each case were sold or issued on or after 13 February 2024 subject to the disapplication of pre-emption rights based on direct, indirect or analogous application of section 186 (3) sentence 4 AktG – exceed 10% of the share capital; this threshold is to be calculated on the basis of the amount of the share capital existing either on 13 February 2024 or at the time the new shares are issued, whichever is lower. When calculating the aforementioned 10%, shares to be granted to creditors of the bonds under the terms and conditions of these bonds for purposes of protection against dilution (e.g. in the event of a cash capital increase with pre-emption rights during the term of the bonds after the issue of the bonds) will not be taken into account. The Executive Board may further, subject to the consent of the Supervisory Board, disapply shareholders' pre-emption rights in order to avoid fractional amounts.
The Executive Board is authorised, subject to the consent of the Supervisory Board, to determine the further details of the capital increase and its implementation."
The authorisation of the Executive Board, subject to the consent of the Supervisory Board, to increase the Company's share capital until 12 February 2023 by up to EUR 22,258,259 in total by issuing new registered shares to employees has expired. Article 4 (4) of the Charter will therefore be restated as follows:
"(deleted)"
6. Resolution on the authorisation of the Executive Board to increase the share capital (Authorised Capital 2024/II) of the Company with the option to disapply pre-emption rights, including utilisation in return for contributions in kind and to issue new registered shares to employees, while cancelling Authorised Capital 2022/II, and the restatement of Article 4 (7) of the Charter (amendment to the Charter)
By resolution of the Annual General Meeting of 8 February 2022 under agenda item 6, the Executive Board was authorised, subject to the consent of the Supervisory Board, to increase the share capital of the Company by up to EUR 626,907,236.00 by issuing registered shares with the option to disapply pre-emption rights, including utilisation in return for contributions in kind (Authorised Capital 2022/II). This authorisation was partly utilised in March 2023.
It is therefore proposed that a resolution be passed on the creation of a new authorised capital in the amount of EUR 202,972,413.00 (in words: Euro two hundred and two million nine hundred and seventy-two thousand four hundred and thirteen) and to cancel the Authorised Capital 2022/II in order to ensure that the Executive Board will continue to have planning security and remain in a position to adjust the Company's equity resources in order to quickly and flexibly meet financial requirements also in future. When utilising this new authorised capital, shareholders are, in principle, entitled to pre-emption rights; however, the Executive Board is to be authorised, subject to the consent of the Supervisory Board, to disapply shareholders' pre-emption rights for specific purposes. However, as stated, this option is generally to be limited to a share volume of 10% of the share capital in aggregate, taking into account other authorisations to disapply pre-emption rights based on direct, indirect or analogous application of section 186 (3) sentence 4 AktG.
The Executive Board and the Supervisory Board therefore propose that the following resolution be passed:
a) Creation of Authorised Capital 2024/II
The Executive Board will be authorised, subject to the consent of the Supervisory Board, to increase the Company's share capital once or several times until 12 February 2029 (inclusive) by issuing new registered shares against contributions in cash or in kind by an amount not to exceed EUR 202,972,413.00 (in words: Euro two hundred and two million nine hundred and seventy-two thousand four hundred and thirteen) in total (Authorised Capital 2024/II). Shareholders are, in principle, entitled to pre-emption rights. The pre-emption rights may be granted indirectly in that shares may also be subscribed by one or several credit institutions or equivalent entities as defined in section 186 (5) sentence 1 AktG with the obligation to offer them to the shareholders for subscription.
However, the Executive Board is authorised, subject to the consent of the Supervisory Board, to disapply shareholders' pre-emption rights to the extent necessary in order to grant holders of bonds with conversion or warrant rights or obligations issued or to be issued by TUI AG or its subsidiaries the pre-emption rights they would be entitled to after exercising the conversion or warrant rights or fulfilling the conversion or warrant obligations. Furthermore, shareholders' pre-emption rights may be disapplied in respect of fractional amounts. In addition, the Executive Board may, with the consent of the Supervisory Board, disapply shareholders' preemption rights insofar as the capital increase (i) against contributions in kind is performed in order to acquire companies, parts of companies, interests in companies or other assets (including receivables) or (ii) against contribution in cash in one or more stages by up to EUR 10,000,000.00 to issue new registered shares to the Company's or the Group Companies'
employees. However, the total portion of the share capital attributable to new shares for which pre-emption rights have been disapplied under the capital increase against contribution in kind must not – together with the portion of the share capital attributable to new shares from authorised capital or relating to conversion or warrant rights or obligations from bonds that were sold or issued on or after 13 February 2024 subject to the disapplication of pre-emption rights based on direct, indirect or analogous application of section 186 (3) sentence 4 AktG – exceed 10% of the share capital; this threshold is to be calculated on the basis of the amount of the share capital existing either on 13 February 2024 or at the time the new shares are issued or sold, whichever is lower. When calculating the aforementioned 10%, shares to be granted to creditors of the bonds under the terms and conditions of these bonds for purposes of protection against dilution (e.g. in the event of a cash capital increase with pre-emption rights during the term of the bonds after the issue of the bonds) will not be taken into account.
The Executive Board is also authorised, subject to the consent of the Supervisory Board, to determine the further details of the capital increase and its implementation.
The Authorised Capital 2022/II resolved by the Annual General Meeting on 8 February 2022 will be cancelled with effect from the date the resolution of the Annual General Meeting on the creation of Authorised Capital 2024/II takes effect by registration in the commercial register. Article 4 (7) of the Charter will be restated in accordance with paragraph c) below.
c) Amendment to the Charter
Article 4 (7) of the Charter will be restated as follows:
"The Executive Board is authorised, subject to the consent of the Supervisory Board, to increase the Company's share capital once or several times until 12 February 2029 (inclusive) by issuing new registered shares against contributions in cash or in kind by an amount not to exceed EUR 202,972,413.00 (in words: Euro two hundred and two million nine hundred and seventy-two thousand four hundred and thirteen) in total (Authorised Capital 2024/II). Shareholders are, in principle, entitled to pre-emption rights. The pre-emption rights may be granted indirectly in that shares may also be subscribed by one or several credit institutions or equivalent entities as defined in section 186 (5) sentence 1 AktG with the obligation to offer them to the shareholders for subscription.
However, the Executive Board is authorised, subject to the consent of the Supervisory Board, to disapply shareholders' pre-emption rights to the extent necessary in order to grant holders of bonds with conversion or warrant rights or obligations issued or to be issued by TUI AG or its subsidiaries the pre-emption rights they would be entitled to after exercising the conversion or warrant rights or fulfilling the conversion or warrant obligations. Furthermore, shareholders' pre-emption rights may be disapplied in respect of fractional amounts. In addition, the Executive Board may, with the consent of the Supervisory Board, disapply shareholders' preemption rights insofar as the capital increase (i) against contributions in kind is performed in order to acquire companies, parts of companies, interests in companies or other assets (including receivables) or (ii) against contribution in cash in one or more stages by up to EUR 10,000,000.00 to issue new registered shares to the Company's or the Group Companies' employees. However, the total portion of the share capital attributable to new shares for which pre-emption rights have been disapplied under the capital increase against contribution in kind must not – together with the portion of the share capital attributable to own shares or new shares from authorised capital or relating to conversion or warrant rights or obligations from bonds that were sold or issued on or after 13 February 2024 subject to the disapplication of preemption rights based on direct, indirect or analogous application of section 186 (3) sentence 4
AktG – exceed 10% of the share capital; this threshold is to be calculated on the basis of the amount of the share capital existing either on 13 February 2024 or at the time the new shares are issued or sold, whichever is lower. When calculating the aforementioned 10%, shares to be granted to creditors of the bonds under the terms and conditions of these bonds for purposes of protection against dilution (e.g. in the event of a cash capital increase with pre-emption rights during the term of the bonds after the issue of the bonds) will not be taken into account.
The Executive Board is also authorised, subject to the consent of the Supervisory Board, to determine the further details of the capital increase and its implementation."
7. Resolution on the authorisation of the Executive Board to issue convertible bonds, bonds with warrants, profit-sharing rights or income bonds (or combinations thereof) with the option to disapply pre-emption rights pursuant to, inter alia, section 221 (4) and section 186 (3) sentence 4 AktG as well as resolution on the creation of a conditional capital (Conditional Capital 2024), while cancelling the previous conditional capitals pursuant to Article 4 (6) (Conditional Capital 2016), Article 4 (8) (WSF Silent Participation I), Article 4 (10) (Conditional Capital 2022/I) and Article 4 (11) (Conditional Capital 2022/II) of the Charter (amendment to the Charter)
The Executive Board was authorised by the Annual General Meeting of 8 February 2022 under agenda items 7 and 8 of that meeting, 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"). Two conditional capitals, the first of up to EUR 162,291,441.00 (in words: Euro one hundred and sixty-two million two hundred and ninety-one thousand four hundred and forty-one) and the second of up to EUR 81,145,720.00 (in words: Euro eighty-one million one hundred forty-five thousand seven hundred and twenty) were created for this purpose pursuant to Article 4 (10) and (11) of the Charter. Both authorisations are to be cancelled as following the capital reduction and reserve share split in February 2023 their scopes are no longer adequate. 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 resolve on a new authorisation to issue Bonds and a new conditional capital. The scope of the proposed new authorisation is to enable the Company to issue bonds to cover an amount of up to EUR 1,500,000,000.00 (in words: Euro one billion five hundred million). The Executive Board is also to be authorised to disapply the shareholders' rights to subscribe 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 warrant prices, the new conditional capital to be created, which serves to fulfil conversion or warrant rights or obligations, is to amount up to EUR 50,743,103.00 (in words: Euro fifty million seven hundred forty-three thousand one hundred and three), although if preemption rights are disapplied in line with section 186 (3) sentence 4 AktG, the shares to be issued to service conversion or warrant rights or obligations must not exceed 10% of the share capital either at the time the subsequent new authorisation is resolved or, if lower, at the time it is exercised. At the same time, as stated, it is to be ensured that all authorisations on the disapplication of pre-emption rights based on direct, indirect or analogous application of section 186 (3) sentence 4 AktG are limited to a share volume of 10% in aggregate of the share capital.
The Executive Board was authorised by the extraordinary General Meeting of 5 January 2021 under agenda item 3 of that meeting to grant new no-par value shares to the Economic Stabilisation Fund ("WSF") upon the exercise of the conversion right granted to it in connection with the silent participation I ("WSF Silent Participation I"). For this purpose, a conditional capital was created pursuant to Article 4 (8) of the Charter. The WSF Silent Participation I was repaid on 27 April 2023, so that the conversion right granted to the WSF has ceased to exist.
The purpose of the conditional capital pursuant to Article 4 (8) of the Charter has ceased to exist and Article 4 (8) is therefore to be cancelled.
Accordingly, the conditional capitals pursuant to Article 4 (8) of the Charter (WSF Silent Participation I), pursuant to Article 4 (10) of the Charter ("Conditional Capital 2022/I") and pursuant to Article 4 (11) of the Charter ("Conditional Capital 2022/II") are to be cancelled and the relevant provisions of the Charter to be deleted without replacement.
In addition, the existing but no longer required conditional capital pursuant to Article 4 (6) of the Charter (Conditional Capital 2016) is to be cancelled and a new conditional capital (Conditional Capital 2024) and a corresponding restatement of Article 4 (6) of the Charter are to be resolved.
The Executive Board and Supervisory Board therefore propose that the following resolution be passed:
a) Creation of an authorisation to issue convertible bonds, bonds with warrants, profitsharing rights or income bonds (or combinations thereof) and to disapply pre-emption rights
aa) Term of authorisation, nominal amount, number of shares, maturity, contribution in kind, currency, issue by Group companies
The Executive Board will be 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 EUR 1,500,000,000.00 (in words: Euro one billion five hundred million) once or several times until and including 12 February 2029 and to grant holders and creditors (hereinafter collectively referred to as "Holders") of the Bonds conversion or warrant rights to Company shares representing a pro rata amount of the share capital of up to EUR 50,743,103.00 (in words: Euro fifty million seven hundred forty-three thousand one hundred and three), in accordance with the terms and conditions of the Bonds (hereinafter also referred to as the "Terms and Conditions") or to attach conversion or warrant obligations to these Bonds. The Bonds and the conversion or warrant rights and obligations may be issued with or without a fixed maturity. The Bonds may also be issued in return for contributions in kind. The Bonds may be issued in euro or in another legal currency of an OECD country, provided that the equivalent in euro does not exceed the stipulated amount. The Bonds may be issued by downstream Group companies of the Company; in this case, the Executive Board will be 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 warrant rights or obligations relating to Company shares to or on the Holders of these Bonds.
bb) Granting and disapplication of pre-emption rights
Shareholders are, in principle, entitled to pre-emption rights in respect of the Bonds. Such preemption rights may be granted indirectly in that shares may also be subscribed by one or several credit institutions or equivalent entities as defined in section 186 (5) sentence 1 AktG with the obligation to offer them to the shareholders for subscription. If Bonds are issued by a downstream Group company, the Company must ensure that the statutory pre-emption rights for the Company's shareholders are guaranteed in line with the above. The Executive Board is, however, authorised to disapply shareholders' pre-emption rights to the Bonds, subject to the consent of the Supervisory Board, in the following cases:
• in respect of fractional amounts;
• insofar as it is necessary in order to ensure that the Holders of Bonds that have already been issued are granted pre-emption rights in the scope which would be available to them once these conversion or warrant rights had been exercised or these conversion or warrant obligations had been fulfilled;
• insofar as Bonds with conversion or warrant rights or obligations are issued for cash and the issue price is not substantially lower than the market value of the Bonds, although this only applies insofar as the shares to be issued in order to service the conversion or warrant rights or obligations under the Bonds do not exceed 10% of the share capital in total either at the time the authorisation is resolved or at the time it 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 the share capital represented by shares, or to which conversion or warrant rights or obligations under any Bonds relate, which were issued or sold on or after 13 February 2024 subject to the disapplication of pre-emption rights by applying section 186 (3) sentence 4 AktG directly, analogously or mutatis mutandis. When calculating the aforementioned 10%, shares to be granted to creditors of the Bonds under the Terms and Conditions of these Bonds for purposes of protection against dilution (e.g. in the event of a cash capital increase with pre-emption rights during the term of the Bonds after the issue of the Bonds) will not be taken into account;
• insofar as they are issued in return for contributions in kind, provided the value of the contributions in kind reasonably reflects the market value of the Bonds.
Where profit-sharing rights or income bonds without conversion or warrant rights or obligations are issued, the Executive Board is authorised, subject to the consent of the Supervisory Board, to disapply shareholders' pre-emption rights entirely, provided these profit-sharing rights or income bonds according to their terms are similar to 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.
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 the share capital attributable to 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 can 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 determined. It is also possible to determine that fractional shares are consolidated and/or settled in cash.
dd) Warrant 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 provide that fractional shares are consolidated and/or settled in cash. The proportion of the share capital attributable to 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.
The Terms and Conditions may also provide for a conversion or warrant 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 of the Bonds 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 warrant price for a share may reflect the average closing price of the Company's shares on the Frankfurt Stock Exchange (Xetra trading) or the depositary interests representing the shares at the LSE during the ten 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.
The conversion or warrant price is either (if pre-emption rights are disapplied) at least 60% of the average closing price of the Company's shares on the Frankfurt Stock Exchange (Xetra trading) or the depositary interests representing the shares at the LSE during the ten trading days prior to the day on which the resolution on issuing Bonds is passed by the Executive Board or (if pre-emption rights are granted) at least 60% of the average closing price of the Company's shares on the Frankfurt Stock Exchange (Xetra trading) or the depositary interests representing the shares at the LSE during the subscription period, with the exception of any days in the subscription period that are required in order that the conversion or warrant 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 warrant right or obligation, the economic value of the existing conversion or warrant rights or obligations is diluted and no pre-emption rights are granted as compensation, the conversion or warrant rights or obligations may, notwithstanding section 9 (1) AktG, be adjusted to maintain their value, to the extent that such adjustment is not already required by mandatory law. The proportion of the share capital attributable to 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.
The Terms and Conditions of the Bonds may in each case provide that the Company has the option, when conversion or warrant rights or obligations are exercised, also to grant new shares from authorised capital, own shares held by the Company or existing shares of another listed company. Moreover, they may also provide that the Company will not grant the holders of conversion or warrant rights Company shares, but will rather pay out the cash value.
The Executive Board will be 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 warrant 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.
The share capital is to be conditionally increased by up to EUR 50,743,103.00 (in words: Euro fifty million seven hundred forty-three thousand one hundred and three) by issuing up to 50,743,103 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 warrant 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 warrant 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 warrant rights under bonds issued for cash are exercised or conversion or warrant 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) Cancellation of Conditional Capital 2016 and the conditional capital pursuant to Article 4 (8) of the Charter (WSF Silent Participation I) as well as the authorisations to issue convertible bonds, bonds with warrants, profit-sharing rights or income bonds (or combinations thereof) with conversion or warrant rights or obligations of 8 February 2022 and cancellation of Condition Capital 2022/I and Conditional Capital 2022/II created in this regard
The Conditional Capitals 2016 (Article 4 (6) of the Charter), 2022/I (Article 4 (10) of the Charter), 2022/II (Article 4 (11) of the Charter) and the conditional capital for the WSF Silent Participation I (Article 4 (8) of the Charter) as well as the authorisations of 8 February 2022 to issue convertible bonds, bonds with warrants, profit-sharing rights or income bonds (or combinations thereof) with conversion or warrant rights or obligations will be cancelled. Article 4 (8), (10) and (11) of the Charter will be deleted without replacement.
d) Amendment to the Charter
aa) Article 4 (6) and (8) of the Charter will be restated as follows:
"(6) The share capital is conditionally increased by up to EUR 50,743,103.00 (in words: Euro fifty million seven hundred forty-three thousand one hundred and three) by issuing up to 50,743,103 new registered shares with dividend rights from the beginning of the financial year in which they were issued (Conditional Capital 2024). The conditional capital increase will be effected to the extent that holders or creditors of convertible bonds, bonds with warrants, profit-sharing rights or income bonds (or combinations thereof) with conversion or warrant rights or obligations issued by TUI AG or its Group companies for cash until 12 February 2029 (inclusive) on the basis of the authorisation resolved by the Annual General Meeting on 13 February 2024 exercise their conversion or warrant rights or to the extent that conversion or warrant 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 Supervisory Board, to determine the further details of the implementation of the conditional capital increase."
"(8) (deleted)"
bb)Article 4 (10) and (11) of the Charter will be deleted.
The term of office of the Supervisory Board members elected by the Annual General Meeting, Ingrid-Helen Arnold, María Garaña Corces, Coline Lucille McConville and Joan Trían Riu, will end at the close of the Annual General Meeting on 13 February 2024.
In accordance with sections 96 (1), 101 (1) AktG and section 7 (1) sentence 3, sentence 1 no. 3 of the German Codetermination Act 1976 (Mitbestimmungsgesetz) in conjunction with Article 11 (1) sentence 1 of the Charter of TUI AG, the Supervisory Board of the Company is made up of ten shareholder representatives and ten employee representatives. In accordance with section 96 (2) sentence 1 AktG, the Supervisory Board is moreover made up of at least 30% women and at least 30% men (required minimum proportion). The overall fulfilment pursuant to section 96 (2) sentence 3 AktG, according to which the minimum proportion of 30% women and 30% men is to be fulfilled by the Supervisory Board overall, has not been objected to. Therefore, the Supervisory Board must be filled with a total of at least six women and at least six men in order to fulfil the required minimum proportion. This is currently the case. By means of an election of the currently incumbent members of the Supervisory Board, Ingrid-Helen Arnold, María Garaña Corces, Coline Lucille McConville and Joan Trían Riu, the requirements continue to be satisfied as before.
Based on corresponding proposals of the nomination committee and taking into account the Supervisory Board's aims published in the Declaration on Corporate Governance regarding its composition, the profile of required skills and expertise as well as the diversity concept (Diversitätskonzept), the Supervisory Board proposes that the following individuals be elected to the Supervisory Board as shareholder representatives:
It is planned that the Annual General Meeting will be allowed to vote on the nominations on an individual basis.
Ms Ingrid-Helen Arnold is a member of the Supervisory Board of TUI AG since her first appointment on 11 February 2020. She is not a member of any other Supervisory Board required by law or other comparable supervisory bodies in domestic or foreign commercial companies.
With regard to recommendation C.13 (1) DCGK, it is stated that, in the opinion of the Supervisory Board, Ms Arnold has no personal or business relationship with the Company, bodies of the Company or a shareholder with a material interest in the Company.
The shareholder representatives on the Supervisory Board consider Ms Arnold to be independent within the meaning of recommendation C.6 DCGK; this also applies with regard to the UK Corporate Governance Code ("UK CGC").
Ms María Garaña Corces is a member of the Supervisory Board of TUI AG since her first appointment on 11 February 2020. She is not a member of any other Supervisory Board required by law. Ms Garaña Corces is a member of the following comparable supervisory body in a domestic or foreign commercial company: Alantra Partners, S.A. (listed company).
With regard to recommendation C.13 (1) DCGK, it is stated that, in the opinion of the Supervisory Board, Ms Garaña Corces has no personal or business relationship with the Company, bodies of the Company or a shareholder with a material interest in the Company.
The shareholder representatives on the Supervisory Board consider Ms Garaña Corces to be independent within the meaning of recommendation C.6 DCGK; this also applies with regard to the UK Corporate Governance Code.
Ms Coline Lucille McConville is a member of the Supervisory Board of TUI AG since her first appointment on 11 December 2014. She is not a member of any other Supervisory Board required by law. Ms Coline Lucille McConville is a member of the following other comparable supervisory bodies in domestic or foreign commercial companies: 3i Group PLC (listed company).
With regard to recommendation C.13 (1) DCGK, it is stated that, in the opinion of the Supervisory Board, Ms Coline Lucille McConville has no personal or business relationship with the Company, bodies of the Company or a shareholder with a material interest in the Company.
The shareholder representatives on the Supervisory Board consider Ms Coline Lucille McConville to be independent within the meaning of recommendation C.6 DCGK. Under the UK Corporate Governance Code, being a member of the Supervisory Board for more than nine years, is one of the circumstances which is noted as likely to impair, or appear to impair, a director's independence. The shareholder representatives on the Supervisory Board have therefore looked in detail at how to assess Ms McConville's independence. Due to Ms Coline Lucille McConville's professional background, the shareholder representatives on the Supervisory Board have come to the conclusion that she maintains the necessary critical distance from the Executive Board and the Company, taking into account that she has belonged to TUI AG's Supervisory Board for more than nine years, and that they see her as independent.
Mr Joan Trían Riu is a member of the Supervisory Board of TUI AG since his first appointment on 12 February 2019. He is not a member of any other Supervisory Board required by law. Mr Joan Trían Riu is a member of the following other comparable supervisory bodies in domestic or foreign commercial companies: Ahungalla Resorts Ltd. (not listed), Hotel San Francisco S.A. (not listed), Pep Toni Hotels S.A. (not listed), RIUSA II S.A. (not listed) and Riu Hotels S.A. (not listed).
With respect to recommendation C.6 and C.13 (1) DCGK, it is stated that Riu Hotels & Resorts Group, Palma de Mallorca, where Mr Joan Trían Riu holds the position of a member of the Executive Board, maintains numerous business relations to companies of the TUI Group in the area of accommodation services, including as a joint venture partner in RIUSA II S.A. and Pep Toni S.A. Against this background, the shareholders have come to the conclusion that Mr Joan Trían Riu cannot be considered independent.
Further information on the candidates, in particular their curricula vitae, can be found on the Company's website at www.tuigroup.com/en-en/investors/agm. The curricula vitae also reflect, among other things, the extent to which the candidates contribute to fulfilling the Supervisory Board's profile of required skills and expertise. The Supervisory Board's profile of required skills and expertise is also published at
www.tuigroup.com/en-en/about-us/about-tui-group/management. A qualification matrix of the Supervisory Board can be found in the Company's Annual Report beginning on page 126.
The Executive Board and the Supervisory Board must prepare a clear and understandable remuneration report on an annual basis that complies with the requirements of section 162 AktG. The auditor is required to audit if the remuneration report contains all the information required by law and to issue an audit report on this. Pursuant to section 120a (4) AktG the audited remuneration report needs to be submitted to the General Meeting for approval by shareholders. The decision of the General Meeting relating to the approval of the remuneration report is non-binding.
The Executive Board and the Supervisory Board propose to the Annual General Meeting to approve the remuneration report for the financial year that ended on 30 September 2023 which can be found together with the audit report in Section IV. "Remuneration report pursuant to section 162 AktG – Regarding item 9 of the agenda" following this agenda.
The remuneration report explains the remuneration of the members of the Executive Board of TUI AG and the remuneration of the members of the Supervisory Board in accordance with the Charter. The remuneration systems underlying the remuneration presented are based in particular on the recommendations of the German Corporate Governance Code, the requirements of the German Commercial Code (HGB) and the German Stock Corporation Act and, where possible, the recommendations of the UK Corporate Governance Code.
As a German stock corporation, TUI AG is also listed on the LSE. Insofar as mandatory regulations on the management structure and legal requirements of a German stock corporation are affected, these regulations are presented in this report accordingly and, where applicable, placed in the context of the UK Corporate Governance Code.
The Supervisory Board resolved, most recently on 26 February 2021, on a remuneration system for the members of the Executive Board of TUI AG pursuant to section 87a AktG. The Annual General Meeting on 25 March 2021 approved this remuneration system with 95.80% of the votes cast. The Supervisory Board regularly reviews the remuneration system. Section 120a AktG provides that the general meeting of listed companies must adopt a resolution on the approval of the remuneration system for the members of the executive board submitted by the supervisory board in the case of any material amendment to the system, however at least every four years.
The Supervisory Board has resolved to adjust the remuneration system for the members of the Executive Board of TUI AG. The adjusted remuneration system develops the remuneration system approved by the Annual General Meeting on 25 March 2021 further. In particular, the individual performance factor in the annual performance-based remuneration will be replaced by an ESG factor, in the long-term incentive plan, absolute "earnings per share" ("EPS") target values will be taken as a basis instead of EPS growth and Free Cash Flow before dividends will be replaced by Total Cash Flow before dividends, and share ownership guidelines will be introduced. When preparing the proposals, the Supervisory Board was assisted by a renowned independent external remuneration consultant. If approved by the Annual General Meeting, the adjusted remuneration system shall apply with retroactive effect as of 1 October 2023.
The ESG element was deliberately not integrated into the long-term incentive plan. Integrating ESG targets in the annual remuneration component enables an annual tracking of the strategic milestone plan, thereby simplifying target setting and reducing the complexity of the system. In addition, the design of the long-term incentive plan in the form of a virtual performance share plan was retained. This is in line with common market practice and meets the requirement for share-based remuneration. However, in order to achieve even greater alignment with investor requirements, an additional component based on real shares has been introduced through the implementation of share ownership guidelines.
The adjusted remuneration system for the Executive Board members of TUI AG can be found at the end of the agenda sub V. The Supervisory Board proposes that the Annual General Meeting approves this adjusted remuneration system pursuant to section 120a (1) AktG.
All 507,431,033 no-par value TUI AG shares ("TUI Shares") are currently admitted to (i) the premium listing segment of the Official List maintained by the UK Financial Conduct Authority (the "FCA") and to trading on the Main Market for listed securities of the LSE (with trading occurring via Depositary Interests ("DIs")) in the United Kingdom, (ii) the regulated market segment (regulierter Markt) of the Hanover Stock Exchange as well as (iii) the Open Market segment (Freiverkehr) of the stock exchange in Frankfurt in Germany.
On 6 December 2023, the Company announced that it was considering a proposal to cancel the admission of the TUI Shares to the Official List maintained by the FCA and to trading on the Main Market for listed securities of the LSE (with trading occurring via the DIs) in the United Kingdom (the "UK Delisting") and considering applying for admission to trading on the regulated market (regulierter Markt) of the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse) with simultaneous admission to the Prime Standard market segment of the Frankfurt Stock Exchange, a sub-segment of the regulated market segment (regulierter Markt) having additional post admission obligations in Germany (the "Admission"). On 4 January 2024, the Company announced that, following shareholder feedback the UK Delisting Resolution will be proposed at the Company´s Annual General Meeting. It is anticipated that Admission will be granted by the Frankfurt Stock Exchange by 5 April 2024, that trading on the Prime Standard market segment of the Frankfurt Stock Exchange will start on or around 8 April 2024 and, subject to the UK Delisting Resolution being passed at the Annual General Meeting, that the effective date of the UK Delisting will be 24 June 2024. The admission to trading on the Hanover Stock Exchange in Germany will not be affected by the UK Delisting resolution under agenda item 11.
The Listing Rules made by the FCA pursuant to Part VI of the UK Financial Services and Markets Act 2000, as amended, (the "Listing Rules") require that, amongst other things, if a company wishes to cancel its listing on the premium listing segment of the Official List maintained by the FCA, it must be approved by not less than 75 per cent. of the votes cast at the Annual General Meeting, whether personally or by proxy. Therefore, the Executive Board (Vorstand) requests from the Annual General Meeting the authorisation and approval of the UK Delisting with no less than 75 per cent. of the votes cast, whether personally or by proxy.
The Executive Board and Supervisory Board therefore propose that the following resolution be passed:
The Executive Board (Vorstand) is hereby authorized (ermächtigt) to apply for the cancellation of the admission of all 507,431,033 no-par value TUI AG shares to the premium listing segment of the Official List maintained by the UK Financial Conduct Authority and their removal from trading (in the form of DIs) on the Main Market for listed securities of the London Stock Exchange and approval is hereby granted thereto.
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