Settlement Agreement. between. MAN SE, Ungererstr. 69, Munich, and. Mr. Håkan Samuelsson. Preamble

Transcription

1 Settlement Agreement between MAN SE, Ungererstr. 69, Munich, and Mr. Håkan Samuelsson Preamble P.1 Mr. Samuelsson was a member of the Executive Board of the former MAN Aktiengesellschaft and MAN SE ( MAN ) from 15 May 2000 until his resignation on 23 November 2009, and also its Chief Executive Officer from 1 January Additionally, from 15 May 2000 until 31 December 2004 Mr. Samuelsson was a Member of the Executive Board of MAN Nutzfahrzeuge Aktiengesellschaft, which has since been renamed MAN Truck & Bus AG, and also its Chief Executive Officer from 1 July Furthermore, Mr. Samuelsson has held other executive positions at group companies of MAN. P.2 In 2009, the Public Prosecutors Office Munich I initiated investigations against employees and executives of subsidiary and affiliate companies of MAN on grounds of suspected bribery payments within the MAN group. Fines of EUR 75,300, each were imposed on MAN Nutzfahrzeuge Aktiengesellschaft and MAN Turbo AG on 10 December MAN Turbo AG was merged with MAN Diesel SE in 2010 and has been renamed MAN Diesel & Turbo SE. In the view of MAN, the payment of these fines led to financial losses at MAN, and MAN suffered further detriment due to subsequent payment of taxes, the costs of internal investigation and the payment of bribes itself. The alleged damages claims were quantified and asserted against Mr. Samuelsson with letter of 26 July 2010 together with a memorandum of 21 July In accordance with the definition of the Key Issues Paper [ Eckpunktepapier ] of 9 February 2012 between MAN and Allianz Global Corporate & Specialty AG ( AGCS ) AGCS acting in its own name as the insurer of the Basic Contract [ Grundvertrag ] and as the lead insurer of the First Excess Policy [ erster Exzedentenvertrag ] (P.5) and No. 1.2 of the D&O Settlement ISAR (P.6), the above-mentioned facts and circumstances shall with the exception of the Ferrostaal/IPIC Complex as described in 3 be referred to in the following as Compliance-Case ISAR

2 P.3 The parties disagree as to whether Mr. Samuelsson has breached his duties as board member with regard to the Compliance-Case ISAR and whether, and to what amount, damages claims arise as a result thereof. P.4 With regard to the severance payment claims of Mr. Samuelsson under the termination agreement with MAN of 23 November 2009 ( Termination Agreement ), MAN exercised a right of lien in the amount of EUR 2,373, to secure any possible damages claims resulting from the Compliance-Case ISAR. P.5 Alongside other former executive board members of MAN and its subsidiary companies, Mr. Samuelsson belongs to the insured group of persons covered by a D&O Insurance that MAN concluded as policy holder and that consists of a Basic Contract for EUR 25,000, and two excess policies for EUR 35,000, and EUR 90,000,000.00: (i) pecuniary loss liability insurance policy taken out for directors and officers between AGCS and MAN with the insurance policy number IHV 70/0493/ /509 of 15 May 2009 ( Basic Contract ), (ii) directors' and officers' liability insurance excess policy between AGCS as the lead insurer and MAN with the policy-no. IHV 70/0493/ /509 of 18 May 2009 ( First Excess Policy ) and (iii) directors' and officers' liability insurance excess policy between Zurich Insurance plc ( Zurich ), Niederlassung Deutschland (branch in Germany) as the lead insurer and MAN with the policy-no of 5 June P.6 MAN reached a mutual agreement with AGCS as the insurerer of the Basic Contract (P.5(i)) and as the lead insurer of the First Excess Policy (P.5(ii)) on the liability and coverage claims with regard to the Compliance-Case ISAR for the insurance period of 31 December 2008 until 31 December 2009 ( D&O Settlement ISAR ). The legally binding signing (conditions precedent not impairing the legally binding effect) of the D&O Settlement ISAR by MAN and AGCS, with AGCS acting in its own name as well as in the name and on behalf of AIG Europe Limited, HDI-Gerling Industrie Versicherung AG, CNA Insurance Company Limited, Chubb Insurance Company of Europe S.E. (AGCS, the aforementioned companies and Zurich hereinafter referred to as the D&O Insurers ), took place on 4 October 2013 and 26 September According to the D&O Settlement ISAR, the D&O Insurers (with the exception of Zurich) will pay MAN EUR 42,500, for the regulation of possible losses arising from or in connection with the Compliance-Case ISAR less the costs for making claims (fees of the attorneys of the insured persons) and less any deductibles to be borne by the insured persons. The D&O Settlement ISAR is subject to the - 2 -

3 condition precedent that the shareholders meeting of MAN as well as the shareholders meetings of MAN Truck & Bus AG, MAN Diesel & Turbo SE and Renk AG approve this D&O Settlement ISAR and no minority of shareholders whose shares in total represent at least 10% of the capital stock of the respective company files a written objection ( 93 Para. 4 Sent. 3 German Stock Corporation Act). According to the current planning, the respective shareholders meetings are to take place in June In light of the above, and in order to avoid court proceedings, the parties agree on the following: 1 Personal Contribution In view of his corporate policy responsibility to resolve incidents within the MAN group during his term of office that resulted in losses, Mr. Samuelsson agrees to pay MAN a personal contribution for the adjustment of losses ( Personal Contribution ) in the amount of EUR 1,250, (in words: one million two hundred and fifty thousand Euro). This independent obligation to pay the Personal Contribution does not represent an acknowledgment by Mr. Samuelsson with regard to possible violations of his duties with regard to his function as executive board member of MAN and/or MAN Nutzfahrzeuge Aktiengesellschaft and MAN shall no longer uphold its allegations against Mr. Samuelsson with regard to the Compliance-Case ISAR. With regard to the Personal Contribution, Mr. Samuelsson will not assert any recourse claims against other former or current executive or supervisory board members of MAN including its subsidiary companies. 2 Settlement and Satisfaction of Claims 2.1 Subject to 3, and upon (i) payment of the Personal Contribution according to 1 and (ii) entry into force of the D&O Settlement ISAR according to P.6, all current and future claims of MAN against Mr. Samuelsson, whether known or unknown, conditional or unconditional, from its own rights or from assigned rights, regardless of the legal grounds for such claims, arising from or in connection with the Compliance-Case ISAR shall be settled and satisfied. Any wage tax or income tax related duties or obligations vis-à-vis the tax authorities relating to Mr. Samuelsson in connection with such settlement and satisfaction of claims shall in relation to MAN be borne solely by Mr. Samuelsson. 2.2 Subject to 3, the settlement and satisfaction of claims pursuant to 2.1 also covers any claims of all current companies of the MAN group, each including their subsidiary companies, against Mr. Samuelsson arising from or in connection with the Compliance-Case ISAR. With regard to the aforementioned as well as the former compa

4 nies of the MAN group, MAN shall insofar as legally possible for MAN exert its influence so as to prevent any claims against Mr. Samuelsson from being asserted. With respect to the companies MAN Truck & Bus AG, MAN Diesel & Turbo SE and Renk AG, MAN shall insofar as legally permitted see to it that these companies, each represented by the in relation to Mr. Samuelsson competent board and their shareholders meeting, approve this agreement. MAN will inform Mr. Samuelsson once each approval is given. 3 Ferrostaal/IPIC Complex 3.1 The settlement and satisfaction of claims pursuant to 2 shall not cover any possible claims of MAN, MAN Ferrostaal Beteiligungs GmbH as well as Ferrostaal AG and their subsidiary and affiliate companies (Ferrostaal AG and its subsidiary and affiliate companies hereinafter together referred to as Ferrostaal ) against Mr. Samuelsson due to any breaches of duties of any kind arising from or in connection with the set-up and the supervision of the compliance organization of Ferrostaal or due to any exercise of influence on it and due to suspected bribery cases and bribery cases at Ferrostaal not prevented by such organization and/or due to any other breaches of duties of any kind arising from or in connection with (or as a result of the aforementioned possible breaches of duties) the contract negotiations and the conclusion of the contract of MAN and MAN Ferrostaal Beteiligungs GmbH with IPIC Ferrostaal Holdings GmbH & Co. KG and due to the possible financial losses already incurred and those still being incurred in the future by MAN and/or MAN Ferrostaal Beteiligungs GmbH as a result of the rescission of the contract ( Ferrostaal/IPIC Complex ). MAN Ferrostaal Beteiligungs GmbH was merged into MAN on 6 September 2013 and therefore ceased to exist; its claims were transferred to MAN by means of universal succession. To the extent that claims of MAN arising from or in connection with the Ferrostaal/IPIC Complex are mentioned below, this shall also include claims of the former MAN Ferrostaal Beteiligungs GmbH arising from or in connection with the Ferrostaal/IPIC Complex. 3.2 The liability of Mr. Samuelsson for claims of MAN arising from or in connection with the Ferrostaal/IPIC Complex is limited in its total amount to the remaining amount of coverage of EUR 107,500, under the D&O-Insurance for the insurance period 31 December 2008 until 31 December MAN remains authorized to claim for all damage in excess of the amount of EUR ,00 to substantiate its claims. The D&O-Insurers attach importance to the notice directed towards the insured persons that in the event that any claims are asserted against insured persons due to the Ferrostaal/IPIC Complex, the obligation of the D&O-Insurers to assume liabilities and the allocation of claims to a certain insurance period will be unclear and would need to be reviewed. Furthermore, the D&O-Insurers are careful to point out that claims - 4 -

5 were reported for the insurance period 31 December 2010 until 31 December 2011 and it is currently not possible to make a statement regarding the amount of the insurance sums that are still available. 3.3 The parties agree that in the event that claims are asserted against Mr. Samuelsson the enforcement and clearing of possible claims of MAN against Mr. Samuelsson arising from or in connection with the Ferrostaal/IPIC Complex shall insofar as possible take place exclusively between MAN and the D&O-Insurers. Mr. Samuelsson completely, unconditionally and in full performance assigns to MAN all his coverage claims against the D&O-Insurers within the meaning of No. 1.1 of the insurance terms and conditions of the Basic Contract of the D&O-Insurance based upon claims arising from or in connection with the Ferrostaal/IPIC Complex. MAN accepts such assignment. This shall, against the backdrop of the duties of cooperation as listed below, be without prejudice to a possible claim of Mr. Samuelsson against the D&O-Insurers in relation to the defense, in and out of court, against claims arising from or in connection with the Ferrostaal/IPIC Complex. 3.4 The duties of cooperation and other obligations [ Obliegenheiten ] of Mr. Samuelsson vis-à-vis the D&O-Insurers under the insurance contract and under statutory rules shall remain unaffected by the assignment. Even if the D&O-Insurers reject claims or in the event that MAN brings a lawsuit against the D&O-Insurers arising from or in connection with the Ferrostaal/IPIC Complex, Mr. Samuelsson remains obligated to support the D&O-Insurers in defending the claims, including to submit true and detailed damage reports, disclose all circumstances that from the point of view of the D&O-Insurers are important for the processing of the insurance claims and to submit all documents that from the point of view of the D&O-Insurers are relevant for assessing the insurance claim. In case of (i) any breaches of these duties to cooperate despite of a written request by the insurers to cooperate or (ii) a material breach of other obligations [ Obliegenheiten ] to the detriment of the D&O-Insurers, a contractual penalty - for each breach - of EUR 50, up to EUR 250,000.00, subject to a total of not more than EUR 500,000.00, shall be payable to the D&O-Insurers, the defense of continuing breach [ Einrede des Fortsetzungszusammenhangs ] being thereby excluded. Contractual penalties to be determined by the D&O-Insurers shall be in accordance with equitable discretion. The right of Mr. Samuelsson to file a lawsuit in the event of an inequitable contractual penalty determined by the D&O-Insurers shall remain unaffected

6 Any additional consequences under the insurance contract resulting from breaches of such other obligations [ Obliegenheiten ] shall similarly remain unaffected by the aforementioned. The aforementioned provisions constitute a genuine contract to the benefit of a third party [ echter Vertrag zugunsten Dritter ] and establish a direct claim of the D&O- Insurers against Mr. Samuelsson. These provisions do not give rise to any duties on the part of MAN. 3.5 To the extent that the D&O-Insurers do not assume the costs incurred by Mr. Samuelsson in connection with disputes resulting from the Ferrostaal/IPIC Complex, MAN will indemnify Mr. Samuelsson from his costs that are adequate in terms of the importance of the dispute and his reputation upon presentation of statements of hours worked or, in the event of court disputes, from statutory fees, if such are higher, up to the amount of EUR 250, MAN will, as far as legally possible for MAN, exercise its influence so as to prevent all current and former companies of the MAN group from asserting claims that would lead to an assertion of claims against Mr. Samuelsson beyond the limitations of liability as set out in 3.2 and Settlement of Claims between Co-Debtors [ Innenschuldnerausgleich ] 4.1 With regard to the Compliance-Case ISAR, Mr. Samuelsson hereby assigns to MAN any possible co-debtor recourse claims he may have against former and current executive and supervisory board members as well as against employees of MAN, MAN Truck & Bus AG, MAN Diesel & Turbo SE and/or Renk AG, each including their legal predecessors and subsidiary companies. MAN hereby accepts the assignment. 4.2 Payments by the aforementioned third parties do not lead to the fulfillment of claims against Mr. Samuelsson that exist under this agreement. 5 Indemnity 5.1 Subject to the provisions in 5.4, MAN shall indemnify Mr. Samuelsson from (a) all possible claims of all current and former companies of the MAN group, (b) possible co-debtor recourse claims of other former or current executive and supervisory board members and/or employees of MAN, MAN Truck & Bus AG, MAN Diesel & Turbo SE and/or Renk AG, each including their legal predecessors and subsidiary companies, - 6 -

7 (c) possible claims of the D&O-Insurers against Mr. Samuelsson due to possible alleged breaches of other obligations [ Obliegenheiten ] resulting from the negotiations and/or the conclusion of this agreement, as well as (d) possible claims of customers or competitors of the MAN group against Mr. Samuelsson arising from or in connection with Mr. Samuelsson s position as board member of a current and former company of the MAN group, arising from or in connection with the Compliance-Case ISAR. The indemnification does not apply if Mr. Samuelsson admits any claims as described in 5.1 (a), (b), (c) or (d) without the prior consent of MAN, if he agrees to a settlement of such claims without the prior consent of MAN or if he does not defend himself against such claims until MAN has decided upon a defense. 5.2 For the avoidance of doubt, the indemnification pursuant to 5.1 does not apply to claims described in 5.1 (a), (b), (c) or (d) that Mr. Samuelsson has admitted, for which he has agreed to a settlement or against which he has failed to defend himself, before this settlement agreement has taken legal effect pursuant to 7, unless Mr. Samuelsson disclosed such claims to MAN and MAN has decided upon a defense against such claims. Mr. Samuelsson undertakes that he has not admitted such claims, has not agreed to a settlement of such claims, and has not failed to defend himself against such claims. 5.3 Additionally, MAN indemnifies Mr. Samuelsson from possible co-debtor recourse claims of former or current executive and supervisory board members as well as of employees of MAN, MAN Ferrostaal Beteiligungs GmbH or other companies against Mr. Samuelsson that are based upon the assertion of claims by MAN arising from or in connection with the Ferrostaal/IPIC Complex. Mr. Samuelsson will inform MAN or the attorneys-at-law Dr. Roland Steinmeyer and/or Mr. Patrick Späth, c/o Wilmer Cutler Pickering Hale and Dorr LLP, Friedrichstr. 95, Berlin, who are irrevocably authorized by MAN to receive such information, by letter, fax or in the event that such claims are asserted against Mr. Samuelsson and he will, in the event of court proceedings, serve MAN with a third-party notice. MAN is free to become involved insofar as legally possible in the court proceedings. This duty of indemnification does not apply to claims which Mr. Samuelsson has admitted or will admit, for which he has agreed or will agree to a settlement or against which he has not defended or will not defend himself, unless Mr. Samuelsson disclosed such claims to MAN and MAN has decided upon an admission or settlement of such claims or upon a defense against such claims. Mr. Samuelsson undertakes that he has not admitted such claims, has not agreed to a settlement of such claims, and has not failed to defend himself against such claims

8 5.4 The indemnity by MAN does not apply to (a) possible claims of MAN against Mr. Samuelsson, (b) possible claims of Ferrostaal against Mr. Samuelsson, as well as (c) possible co-debtor recourse claims of other former and current executive and supervisory board members or employees of Ferrostaal that result from the assertion of claims by Ferrostaal, arising from or in connection with the Ferrostaal/IPIC Complex. 6 Right of Lien, Due Date and Methods of Payment 6.1 Up until this settlement agreement takes legal effect pursuant to 7, MAN is entitled to exercise a right of lien in the amount of the Personal Contribution ( 1) with respect to the remaining severance payment claims of Mr. Samuelsson under the Termination Agreement. Interest claims of Mr. Samuelsson against MAN due to the withholding of severance payments have not arisen and will not arise up until the due date pursuant to The Personal Contribution is due on the first workday of the month that follows the approval by the shareholders meeting of MAN. If a complaint is filed against resolutions of the shareholders meeting regarding the approval of this settlement agreement prior to the expiry of the statutory deadline, the payment only becomes due once the necessary approval of the settlement agreement by the shareholders meeting of MAN finally takes legal effect. 6.3 The Personal Contribution shall be paid by way of a declaration by MAN vis-à-vis Mr. Samuelsson offsetting against unpaid severance payment claims under the Termination Agreement. Mr. Samuelsson alone shall, in his relationship with MAN, bear any and all wage tax or income tax related duties or obligations vis-à-vis the tax authorities relating to Mr. Samuelsson in connection with such offsetting. With regard to all severance payment claims and offsetting against such, MAN will withhold and remit any applicable wage tax and other duties to the competent tax office prior to paying out the remaining amount unless Mr. Samuelsson has beforehand provided evidence of a corresponding exemption in the form of an electronic wage tax deduction note pursuant to 39a German Income Tax Act. Mr. Samuelsson hereby agrees with immediate effect to the withholding and remittance of wage tax and other duties as determined by MAN

9 6.4 The portion of the withheld severance payment claims pursuant to P.4 that exceeds the Personal Contribution pursuant to 1 is to be paid out to Mr. Samuelsson immediately after the deduction of any applicable wage taxes pursuant to 6.3 and after the signing of this settlement agreement. 7 Legal Effect 7.1 The legal effect of this settlement agreement is subject to the condition precedent that the Supervisory Board of MAN give its approval. The condition is deemed to be met as soon as the Chairman of the Supervisory Board of MAN confirms to Mr. Samuelsson in writing that the Supervisory Board has given its approval to this settlement agreement. 7.2 The legal effect of this settlement agreement is subject to the additional condition precedent that the shareholders meeting of MAN approve this settlement agreement and no minority of shareholders whose shares in total represent at least 10 % of the capital stock of MAN file a written objection ( 93 Para. 4 Sent. 3 German Stock Corporation Act). The condition is deemed to be met as soon as the Chairman of the Supervisory Board of MAN confirms to Mr. Samuelsson in writing that the aforementioned requirement has been met , 7, 8 and 9 of this settlement agreement shall, by way of derogation from 7.1 and 7.2, be interim provisions and have immediate effect. 5 shall take effect as soon as the Supervisory Board of MAN has approved this settlement agreement pursuant to 7.1. In the event that the Supervisory Board of MAN or the shareholders meeting of MAN do not give their approval to this settlement agreement or a minority of shareholders whose shares in total represent at least 10 % of the capital stock of MAN files a written objection ( 93 Para. 4 Sent. 3 German Stock Corporation Act) at such shareholders meeting, 5, 6, 8 and 9 of this settlement agreement lose their legal effect six month after the refusal of the approval or filing of such objection. 7.4 The legal effect of this settlement agreement does not depend on the legal effect of settlement agreements with other former executive board members. 8 Waiver of the Defense of the Statute of Limitations 8.1 Mr. Samuelsson prolongs until 30 June 2015 his waiver of the defense of the statute of limitations as declared vis-à-vis MAN in No. 1 of his statement of 9 November 2009 in connection with the statements of 3 February 2010, 10 December 2010, 14 June 2011, 23 December 2011, 20 February 2012, 4 December 2012 and 14 May In return, MAN shall until 30 June 2015 waive the defense of the statute of limitations - 9 -

10 with regard to the severance payment claims of Mr. Samuelsson arising under the Termination Agreement. 8.2 Additionally, Mr. Samuelsson prolongs until 30 June 2015 his waiver of the defense of the statute of limitations as declared vis-à-vis MAN Truck & Bus AG in No. 1 of his statement of 10 November 2009 in connection with the statements of 3 February 2010, 10 December 2010, 14 June 2011, 23 December 2011, 20 February 2012, 4 December 2012 and 9 February In the event that a complaint is filed against resolutions of the shareholders meeting regarding the approval of this settlement agreement or of the D&O Settlement ISAR prior to the expiry of the statutory deadline, Mr. Samuelsson shall prolong as of now his respective waiver of the defense of the statute of limitations pursuant to 8.1 and 8.2 until 30 June In the event that a complaint is filed against resolutions of the shareholders meeting regarding the approval of this settlement agreement, MAN shall prolong as of now its waiver of the defense of the statute of limitations pursuant to 8.1 until 30 June The statements in 8.3 and 8.4 do not constitute any extension in the material scope of the declared waivers of the defense of the statute of limitations as referred to in 8.1 and 8.2; only the deadline is prolonged respectively. 9 Miscellaneous 9.1 MAN shall ensure that this settlement agreement will be presented for approval to the next scheduled Annual General Meeting of MAN following the conclusion of this settlement agreement. The Supervisory Board of MAN will recommend that the Annual General Meeting of MAN approve this settlement agreement, provided that the Supervisory Board of MAN has approved the settlement agreement. 9.2 MAN hereby irrevocably authorizes the attorneys-at-law Dr. Roland Steinmeyer and Mr. Patrick Späth, both with business address at c/o Wilmer Cutler Pickering Hale and Dorr LLP, Friedrichstr. 95, Berlin, to issue the statements pursuant to 7.1 and 7.2 on behalf of MAN. 9.3 There are no ancillary agreements to this settlement agreement. Any changes to this settlement agreement, including this written form requirement, must be made in writing. 9.4 If any provision of this settlement agreement is or becomes wholly or partially invalid or unenforceable, or should an omission be identified while executing this settlement

11 agreement, the validity of the remaining provisions shall remain unaffected thereby. An appropriate and legally valid provision that comes closest in an economic sense to what the parties intended or would have intended had they thought of the invalidity, unenforceability or omission, shall apply in place of the invalid, unenforceable or absent provision. Similarly, the parties will re-enter into this settlement agreement and subsequently carry out all actions necessary in the event that this settlement agreement is or becomes wholly or partially invalid or unenforceable and such deficiency is capable of being remedied subsequently Para. 2 German Civil Code shall not apply. 9.6 All disputes arising from or in connection with this settlement agreement, including the facts and circumstances described in the preamble, shall be governed by German law. The exclusive place of jurisdiction for such disputes shall be Munich. The place of performance is Munich. 9.7 The parties hereby agree to treat this settlement agreement and any actions in connection with the matters regulated herein as confidential, unless they are obligated to make disclosure by law or vis-à-vis their employer or the D&O-Insurers or the disclosure serves to execute this settlement agreement. Any press statements may only be released with the consent of the other party and need to be agreed upon between the parties on short notice. (Berlin, 21 November 2013) (Munich, 12 November 2013) Signed by Steinmeyer, Rechtsanwalt (MAN SE) Signed by Samuelsson (Håkan Samuelsson)