Additional Information on Takeover Law and Explanatory Notes
1. The subscribed capital of the company is now € 72,753,334.00. It is divided into 72,753,334 registered no-par-value shares with a pro-rata share of the company’s nominal capital of € 1.00. Of this amount, 70,048,834 are Class A shares and 2,704,500 are Class S shares (class of shares). The Class S shares constitute only shareholdings in the net profit/loss and net assets of the S division, and the Class A shares constitute only shareholdings in the net profit/loss and net assets of the remainder of the company (A division). The S division consists of the part of the company which deals with the acquisition, holding, selling, letting, management and development of properties not specific to port handling (Real Estate subgroup). All other parts of the company (Port Logistics subgroup) form the A division. The dividend entitlement of holders of Class S shares is based on the proportion of the distributable profit for the year attributable to the S division, and the dividend entitlement of holders of Class A shares is based on the remaining proportion of distributable profit for the year (Article 4  of the articles of association). Each share entitles the holder to one vote at the Annual General Meeting (Article 20  of the articles of association) and gives the holder the rights and responsibilities laid down in the German Stock Corporation Act (AktG) and the articles of association. If the statutory provisions require a special resolution to be adopted by holders of a given class of shares, only the holders of that class of shares shall be entitled to vote.
2. To the Executive Board’s knowledge there are no restrictions on voting rights or the transfer of shares, including those arising from agreements between shareholders.
3. For details on direct or indirect capital shareholdings which entitle the holder to more than 10 % of the voting rights. See the Notes to the Consolidated Financial Statements, Note 35 and Note 48
4. There are no shares with special rights granting powers of control.
5. Employees who hold stakes in the company’s equity exercise their shareholders’ rights at their own discretion. There is therefore no control of the voting rights.
6.1 As per Article 8 (1) of the articles of association of Hamburger Hafen und Logistik Aktiengesellschaft, the Executive Board consists of two or more people. Members of the Executive Board are appointed and dismissed by the Supervisory Board in accordance with Section 84 of the German Stock Corporation Act (AktG) in conjunction with Section 31 of the German Co-Determination Act (MitbestG) and Article 8 of the articles of association.
6.2 Amendments to the articles of association can be made by means of a resolution of the Annual General Meeting. In line with Sections 179 and 133 of the German Stock Corporation Act (AktG) and Article 22 of the articles of association, a simple majority of the votes cast at the Annual General Meeting is sufficient for amendments to the articles of association. If a capital majority is required in addition to a majority of the votes, a simple majority of the share capital represented when the resolution is passed is adequate. Exceptions to this rule are amendments to the articles of association for which the law requires a larger majority. In accordance with Article 11 (4) of the articles of association, the Supervisory Board is authorised to carry out amendments to the articles of association which relate only to the wording. If an amendment to the articles of association in the event of a capital increase or steps taken in accordance with the German Reorganisation of Companies Act (UmwG) is designed to change the relationship between Class A and Class S shares, special resolutions by the Class A and Class S shareholders affected are required as per Section 138 of the German Stock Corporation Act (AktG). Amendments to the articles of association become effective when they are recorded in the commercial register.
7.1 Subject to the approval of the Supervisory Board, the Executive Board was authorised by the Annual General Meeting on 14 June 2012 to increase the company’s share capital until 13 June 2017 by up to € 35,024,417.00, by issuing up to 35,024,417 new registered Class A shares for subscription in cash and/or kind in one or more stages (authorised capital I, cf. Article 3 (4) of the articles of association). The statutory subscription right of the holders of Class S shares shall be excluded. The Executive Board is additionally authorised, subject to the approval of the Supervisory Board, to exclude the statutory subscription rights of holders of Class A shares in those cases covered in more detail in the resolution, such as issue for contributions in kind.
7.2 Subject to the approval of the Supervisory Board, the Executive Board is additionally authorised under Article 3 (5) of the articles of association to increase the company’s share capital until 13 June 2017 by up to € 1,352,250.00 by issuing up to 1,352,250 new registered Class S shares by subscription in cash and/or kind in one or more stages (authorised capital II). The statutory subscription right of the holders of Class A shares shall be excluded. The Executive Board is further authorised, with the approval of the Supervisory Board, to exclude the statutory subscription rights of holders of Class S shares as is necessary to equalise fractional amounts.
7.3 The Annual General Meeting on 13 June 2013 authorised the Executive Board, subject to the approval of the Supervisory Board, to issue on one or more occasions up to 12 June 2016 bearer or registered bonds with warrants or convertible bonds (hereinafter known collectively as “debenture bonds”) and to grant the bearers or creditors of the debenture bonds warrants or conversion rights for new Class A company shares subject to the detailed terms of the debenture bonds. The total nominal amount of the debenture bonds issued under this authorisation may not exceed € 200,000,000.00. Option and conversion rights may only be issued for Class A company shares accounting for up to € 6,900,000.00 of the company’s total share capital accounted for by Class A shares. The debenture bonds are to be divided into separate securities, each with equal rights. Class S shareholders’ subscription rights are excluded. The Executive Board is also authorised, subject to the approval of the Supervisory Board, to exclude Class A shareholders’ subscription rights to the separate securities in full or in part in order to equalise fractional amounts, to grant subscription rights to the holders or creditors of warrants and/or convertible bonds and to the extent that debenture bonds are issued for cash, whereby separate securities with rights, options or obligations to convert them into shares may account for no more than 10 % of share capital. As per Article 3 (6) of the articles of association, conditional capital of € 6,900,000.00 is available to service warrants and conversion rights. This is made up of 6,900,000 new registered Class A shares.
7.4 The Annual General Meeting held on 16 June 2011 authorised the company until 15 June 2016 to acquire Class A shares in the company amounting to up to 10 % of the current nominal capital attributable to Class A shares. This authorisation may be used for any legally permissible purpose, except for trading in treasury shares. At the discretion of the Executive Board, the purchase can be made via the stock exchange or by means of a public purchase offer made to all Class A shareholders or by means of a public request for a purchase offer. The Executive Board was also authorised, subject to the approval of the Supervisory Board, to use Class A shares purchased under the authorisation to acquire the company’s own Class A shares for any legally permissible purpose. This includes in particular offering shares to Class A shareholders at a price that is not significantly lower than the price of shares in the company of the same rights at the time of the sale, the sale of shares to third parties in return for contributions in kind, using shares to settle rights or obligations of bearers or creditors resulting from convertible bonds or bonds with warrants issued by the company or by companies in which the company holds a majority stake, issuing or offering shares for sale to employees of the company or an associated company as well as cancelling shares, even in a simplified process in accordance with Section 237 (3–5) of the German Stock Corporation Act (AktG). In the above cases – excluding cancellation – the rights of shareholders to subscribe for the company’s own shares is also excluded.
7.5 Under Article 6 of the articles of association and Section 237 (1) of the German Stock Corporation Act (AktG), the company is authorised to mandatorily cancel Class A or S shares against payment of appropriate compensation if the shareholders whose shares are to be cancelled have given their consent.
8. The following material agreements include regulations that apply in the case of a change of control, as may result from a takeover bid:
In September 2015 the company took out three promissory note loans amounting to € 53,000,000 in total. The original lender is HSH Nordbank AG. The company does, however, have the right to pass on the promissory note loans to third parties in tranches of € 1,000,000. Partial repayments for the promissory note loans will be due between 30 September 2022 and 30 September 2025. If there is a change of control at HHLA, the lenders have the right to demand repayment of tranches, including accumulated interest, prematurely at the next interest payment due date if the parties cannot come to an agreement regarding the loan, and the lender cannot be reasonably expected – taking into account HHLA’s legitimate interests – to accept an unchanged loan agreement. A change of control can be said to have taken place if the Free and Hanseatic City of Hamburg directly holds less than 50.1 % of the voting rights in HHLA.
In addition, HHLA issued a total of 44 registered bonds with a nominal value of € 500,000 each, and therefore a total nominal value of € 22,000,000, on 30 September 2015, which are due in two repayments of € 11,000,000 each on 30 September 2027 and 30 September 2030. The registered bonds were initially issued to HSH Nordbank AG, which has the right to transfer the individual registered bonds. The terms of the bond provide for the registered bond to be repaid prematurely if there is a change of control at HHLA. The regulation, including the definition of a change of control, corresponds to that in the promissory note loan contracts.
The service contracts valid during the reporting period for Executive Board members also contain a regulation that states they have a right to severance if their membership of the Executive Board is terminated due to a change of control or comparable circumstances (see item 9 below).
9. The contracts of employment with the Executive Board members valid during the reporting period contain clauses which provide for a payment to the respective Executive Board members in the event of them losing their Executive Board seats due to a change of control or similar circumstances.
The company is obliged to make a one-off payment to the Executive Board member, with 2 % p.a. interest discount, for the outstanding term of office according to their contract, whereby other income that the Executive Board member may receive until the end of the employment contract could be deducted under certain circumstances.
The average annual result of the last three complete financial years is used to calculate variable remuneration.
During the extension of two Executive Board service contracts in the 2015 financial year, the entitlements in the contracts listed above were restricted – in line with the recommendations of the German Corporate Governance Code – to not more than two annual salaries (including other benefits) and also not more than the total remuneration for the remaining term in cases of premature termination of Executive Board contracts (including termination due to a change of control).
The provisions described above correspond to the legal situation and are standard practice at comparable listed companies. Their intention is not to complicate any possible takeovers.