- 1 - Constantin Medien AG Ismaning – WKN 914720 – – ISIN

Transcrição

Constantin Medien AG
Ismaning
– WKN 914720 –
– ISIN DE0009147207 –
We herewith invite our shareholders to participate in the
Extraordinary Shareholders' Meeting
taking place on the 15th and 16th of December, 2009 in the Hilton Munich Park, Am
Tucherpark 7 in 80538 Munich, Germany.
The extraordinary shareholders' meeting starts on Tuesday, 15 December 2009 at 10:00
a.m. In the case the agenda cannot conclusively be dealt with on this day, the
extraordinary shareholders' meeting will be continued on Wednesday, 16 December
2009, at 10:00 a.m. at the same place.
Agenda
1.
Taking of decisions regarding the approval of entering into an agreement
between the company and Chubb Insurance Company of Europe SE as well
as regarding the waiving of claims for compensation against former
management and supervisory board members.
Management and supervisory board suggest taking the following decision:
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"The entering into an agreement between Constantin Medien AG, Ismaning, and
Chubb Insurance Company of Europe SE, Düsseldorf branch, dated 27 /
28 August 2009 is approved. In accordance with the more detailed provisions of
the aforementioned agreement between the company and Chubb Insurance
Company of Europe SE, the company waives all claims for compensation arisen
prior to 1 January 2006 as well as its claims for recourse in connection with the
breach of duty prior to 1 January 2006 against (1) Mr. Thomas Haffa, who has
been chairman of the management board of the predecessor in title of the
company (EM.TV & Merchandising AG) in the period from 8 August 1997 until
24 July 2001, and (2) Mr. Florian Haffa, who has been member of the
management board of the predecessor in title of the company (EM.TV &
Merchandising AG) in the period from 8 August 1997 until 3 December 2000,
and (3) Mr. Franz Prinz von Auersperg, who has been member of the
Merchandising AG) in the period from 8 August 1997 until 29 February 2000,
and (4) Mr. Ulrich Goebel (Dr.), who has been member of the management
board of the predecessor in title of the company (EM.TV & Merchandising AG)
in the period from 1 October 1999 until 20 December 2000, and (5) Mr. Hans
Peter Vriens who has been member of the management board of the predecessor
in title of the company (EM.TV & Merchandising AG) in the period from
1 November 1999 until 5 March 2001, and (6) Mrs. Sylvia Rothblum (Dr.), who
has been member of the management board of the predecessor in title of the
company (EM.TV & Merchandising AG) in the period from 1 March 2000 until
10 May 2001, and (7) Mr. Rolf Rickmeyer, who has been member of the
Merchandising AG) in the period from 1 November 2000 until 31 August 2001,
and (8) Mr. Marius Schwarz, who has been member of the management board of
the predecessor in title of the company (EM.TV & Merchandising AG) in the
period from 1 September 2001 until 30 November 2001, and (9) Mr. Rainer
Hüther, who has been member of the management board of the predecessor in
title of the company (EM.TV & Merchandising AG) in the period from 6 March
2001 until 19 April 2004 as well as member of the management board of the
company in the period from 5 March 2004 until 30 June 2009 and member of
the supervisory board of the company in the period from 17 November 2003
until 5 March 2004, and (10) Mr. Werner E. Klatten, who has been chairman of
the management board of the predecessor in title of the company (EM.TV &
Merchandising AG) in the period from 15 September 2001 until 19 April 2004
as well as member of the management board of the company in the period from
5 March 2004 until 31 August 2008 and member of the supervisory board of the
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company in the period from 17 November 2003 until 5 March 2004, and (11)
Mr. Andreas Pres (Dr.), who has been member of the management board of the
predecessor in title of the company (EM.TV & Merchandising AG) in the period
from 1 January 2003 until 19 April 2004 and member of the management board
of the company from 17 November 2003 until 31 March 2008, and (12) Mr.
Nickolaus Becker (Dr.), who has been chairman of the supervisory board of the
predecessor in title of the company (EM.TV & Merchandising AG) in the period
from 8 August 1997 until 30 March 2001, and (13) Mr. Axel Kollar (Prof. Dr.),
who has been member of the supervisory board of the predecessor in title of the
company (EM.TV & Merchandising AG) in the period from 8 August 1997 until
1 August 2001, and (14) Mr. Matthias Schwarz (Prof. Dr.), who has been
member of the supervisory board of the predecessor in title of the company
(EM.TV & Merchandising AG) in the period from 8 August 1997 until 1 August
2001, and (15) Mr. Bernd Thiemann (Dr.), who has been member of the
supervisory board of the predecessor in title of the company (EM.TV &
Merchandising AG) in the period from 17 April 2001 until 19 April 2004 and
chairman of the supervisory board from 4 May 2001 and chairman of the
supervisory board of the company in the period from 17 November 2003 until
1 July 2009, and (16) Mr. Roland Berger (Prof.), who has been member of the
supervisory board of the predecessor in title of the company (EM.TV &
Merchandising AG) in the period from 1 August 2001 until 19 April 2004 and
member of the supervisory board of the company in the period from 5 March
2004 until 5 July 2005, and (17) Mr. Ralf Wollburg (Dr.), who has been member
of the supervisory board of the predecessor in title of the company (EM.TV &
Merchandising AG) in the period from 1 August 2001 until 15 May 2003, and
(18) Mr. Andreas Meissner (Dr.), who has been member of the supervisory
board of the predecessor in title of the company (EM.TV & Merchandising AG)
in the period from 20 May 2003 until 19 April 2004 and member of the
supervisory board of the company in the period from 5 March 2004 until 5 July
2005, and (19) Mr. Hans-Holger Albrecht (Dr.), who has been member of the
supervisory board of the company in the period from 5 July 2005 until 1 July
2009, and (20) Mr. Arthur Bastings, who has been member of the supervisory
board of the company in the period from 5 July 2005 until 27 June 2007."
The essential contents of the mutual agreement are promulgated as follows:
"AGREEMENT
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between
Constantin Medien AG, Münchener Straße 101g, 85737 Ismaning
- hereinafter referred to as "Constantin Medien AG" and
Chubb Insurance Company of Europe SE, Grafenberger Allee 295, 40237 Düsseldorf
- hereinafter referred to as "Chubb” - Constantin Medien AG and Chubb,
jointly hereinafter referred to as "the Parties" -
Preamble:
I.
(1)
Constantin Medien AG, formerly operating under the name of EM.Sport
Media AG and EM.TV AG, as legal successor of the merged EM.TV &
Merchandising AG, maintained with Chubb a financial loss liability
insurance for the period of time from 1 January 2000 until 1 January 2004 for
directors and officers (D&O Insurance) on the basis of the General Insurance
Terms AVB OLA 1998 and the Special Terms (Policy No. 61-2074) and, in
accordance with Special Term No. 5 dated 1 January 2001 for misdemeanor
prior to 1 January 2001, with an insurance sum of EUR 51,129,188 (in
words: euro fifty-one million one-hundred and twenty-nine thousand onehundred eighty-eight) per insurance case and in total per period of
insurance.
(2)
Constantin Medien AG maintained an excess of loss agreement for the same
period of time and in addition to the basic agreement with Chubb at ACE
European Group Limited administration for Germany (hereinafter referred o
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as "ACE"). The Parties of this Agreement have agreed that this Agreement
does not affect the liabilities of ACE pursuant to the excess of loss agreement
referred to in item I.(2) of the Preamble.
(3)
Constantin Medien AG and Chubb prolongated the D&O Insurance referred
to in item (1) on the basis of the General Insurance Terms AVB OLA 2003
and the Special Terms for the period of time from 1 January 2004 until
1 January 2005 with a sublimit for misdemeanor prior to 15 September 2001
of EUR 1,875,000 (in words: euro one million eight-hundred seventy-five
thousand) per insurance case and in total per period of insurance.
(4)
Constantin Medien AG and Chubb prolongated the D&O Insurance referred
to in item (1) and (3) on the basis of the General Insurance Terms AVB OLA
2003 and the Special Terms for the period of time from 1 January 2005 until
II.
(1)
Constantin Medien AG has claimed compensation from several persons
insured in various lawsuits because of alleged breach of duty in connection
with the actions of the boards. The sued persons insured have declared
litigation against other persons insured. Furthermore, Constantin Medien
AG has, to the extent third parties claimed compensation, declared litigation
against other persons insured. Finally, several shareholders have claimed
compensation against Constantin Medien AG and persons insured.
(2)
Chubb has preliminarily and with reservation regarding its rights and
objections granted insurance coverage in form of legal defense cost coverage
to persons insured.
(3)
The following third party liability processes and circumstance
announcements are attributed to the period of time of the D&O Insurance
described in item I.(1):
(a)
"Formel 1" (Regional Court Munich I – 5HK O 19261/04)
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(b)
"Theatro Centro / Tabaluga" (Regional Court Munich I – 5HK O
16125/05; Higher Regional Court – 7 U 1784/09)
(c)
Shareholders' actions before various courts. In particular the
shareholders' actions listed in Annex 1 are referred to. The list in
Annex 1 is not conclusive.
(d)
All circumstances announcements in accordance with AVB OLA 98
which have taken place. In particular the circumstances announcements
listed in Annex 2 are referred to. The list in Annex 2 is not conclusive.
As of 14 August 2009 and in the scope of the legal defense protection Chubb
bore legal defense costs in accordance with AVB OLA 98 to the amount of
EUR 7,175,132.21 (in words: euro seven million one-hundred seventy-five
thousand one-hundred thirty-two point twenty-one).
(4)
Neither third party liability processes nor circumstances announcements are
attributed to the period of time of the D&O Insurance described in item I.(3).
(5)
The following third party liability processes and circumstances
(a)
"Victory Media" (Regional Court Munich I – 21 O 15695/04; Higher
Regional Court Munich – 6 U 3416/06)
(b)
"World of Tosh" (Regional Court Munich I – 5HK O 18333/05; Higher
(c)
"Mr. Baby" (Regional Court Munich I – 5HK O 17701/05; Higher
(d)
"Peter-Maffay-Stiftung" (Regional Court Munich I – 5HK O 16125/05;
Higher Regional Court Munich – 7 U 1784/09)
(e)
"Big Guy and Rusty" (Regional Court Munich I – 5HK O 18272/04;
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(f)
As of 14 August 2009 and in the scope of the legal defense protection Chubb
bore legal defense costs in accordance with AVB OLA 2003 to the amount of
EUR 1,465,350.53 (in words: euro one million four-hundred sixty-five
thousand three-hundred fifty point fifty-three).
With this provision and in order to settle the different points of view regarding
liability and coverage, the Parties agree as follows:
1.
Payment
1.1
Chubb pays to Constantin Medien AG EUR 30 Mio. (in words: euro thirty
million) (hereinafter referred to as the "amicable settlement sum").
1.2
The payment of the amicable settlement sum becomes due two weeks after
the occurrence of the following events:
1.3
-
effective signing of this agreement;
-
occurrence of the conditions precedent as set forth in item 6., and
-
expiry of the period stipulated in Sec. 246 para. (1) German Companies
Act (Aktiengesetz, AktG) for rescission of the shareholders’ resolution
as set forth in item 6. if no action to rescind has been suited, or the
valid dismissal of all actions to rescind regarding the shareholders’
resolution as set forth in item 6.
The payment of the amicable settlement sum shall be effected by means of
bank transfer to the account of Constantin Medien AG:
Account No.: 1191046
IBAN: DE29 7005 0000 0001 1910 46
Bank: Bayerische Landesbank
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Bank Code: 700 500 00
BIC/SWIFT: BYLADEMM
2.
Third party liability procedure and costs
2.1
Constantin Medien AG and Chubb have agreed that the third party liability
procedures as set forth in item II.(3)(b) and (5) of the Preamble shall be
terminated immediately – as far as they are not yet validly decided – after
successful credit of the amicable settlement sum and that the costs of the
legal proceedings are to be borne economically in accordance with the
criteria for redistribution as set forth in item 2.2. This aim is preferably to be
reached by means of a mutual settlement declaration. Constantin Medien AG
undertakes to immediately, however not later than one week after successful
credit of the amicable settlement sum, declare the pending third party
liability procedures as set forth in item II.(3)(b) and (5) of the Preamble
settled and to dispense with a decision as to costs under reference as to the
final provision in item 2.2 of this Agreement. Chubb will explicitly and in
writing instruct the sued persons insured to approve the settlement
declaration of Constantin Medien AG pursuant to the third party liability
processes as set forth in item II.(3)(b) and (5) of the Preamble and on their
part to dispense with a decision as to costs due to the final provision in item
2.2 of this Agreement.
2.2
In the third party liability procedures as set forth in item II.(3)(b) and (5) of
the Preamble, Constantin Medien AG bears court fees the advanced by it and
its own extrajudicial and court fees, in particular costs for legal advisors.
Court fees advanced by persons insured as well as extrajudicial and court
fees, in particular costs for legal advisors of the persons insured, are not to
be borne by Constantin Medien AG. Insofar, the absorption of costs is
particularly determined in accordance with the regulations of the D&O
Insurance as set forth in item I.(1) and (4) of the Preamble.
Constantin Medien AG will immediately after the date of the signing of this
Agreement apply for a suspension of third party liability procedures as set
forth in item II.(3)(b) and (5) of the Preamble - as far as not yet validly
settled - under assertion of the pending completion of the amicable settlement
agreement. Otherwise and in contrast to the provisions set forth in item 2.2
subpara. 1, Constantin shall bear all extrajudicial and court fees of the
persons insured resulting thereof.
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2.3
The aforementioned regulations do not apply to the third party liability
procedure "Formel 1” referred to in item II.(3)(a) of the Preamble. Insofar,
Chubb bears legal defense costs of persons insured in accordance with the
D&O Insurance referred to in item I.(1) of the Preamble which have become
due as of the signing of this agreement. All further extrajudicial and court
fees, including those of the persons insured, arising after the signing will
not be borne by Chubb. The right of the persons insured to claim legal
defense costs in accordance with the excess of loss agreement referred to in
item I.(2) of the Preamble remains unaffected thereof.
Constantin Medien AG and Chubb will do their utmost to avoid that the third
party liability procedure "Formel 1” referred to in item II.(3)(a) of the
Preamble be forwarded until the occurrence of the conditions precedent as
mentioned in item 6., unless the bringing forward of this third party liability
procedure is necessary to inhibit the limitation of actions of the claims for
compensation claimed in this procedure.
2.4
Chubb bears legal defense costs for the legal actions by the shareholders
referred to in item II.(3)(c) of the Preamble in accordance with the D&O
Insurance referred to in item I.(1) of the Preamble which have become due as
of the signing of this Agreement. All further legal defense costs for the legal
actions by the shareholders referred to in item II.(3)(c) of the Preamble will
be borne by Constantin Medien AG. In particular Constantin Medien AG will
exempt the persons insured from further legal defense costs if and to the
extent Chubb granted insurance coverage to the persons insured. The
exempt requires that legal briefs are agreed upon between the persons
insured and Constantin Medien AG before filing with the Court and that
Constantin Medien AG has not declared its opposition. A prior reconciliation
upon the legal brief is not necessary if a prompt action is required in order to
avoid urgent disadvantages. When declaring its opposition, Constantin
Medien AG has to preserve the interests of the persons insured like a third
party liability insurer. An exemption liability does not exist insofar as by
means of legally valid third party judgement it has been determined that the
persons insured have deliberately been derelict in their duties. Insofar as
Constantin Medien AG has, relying to these provisions, to exempt the
persons insured, the persons insured are concurrently with the exemption
obliged to assign their claims in connection with such facts and
circumstances, namely to assign their claims for reimbursement of costs
against the respective claimant. Claims for reimbursement of costs of
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Constantin Medien AG against the respective claimant remain unaffected.
Additionally, the right of the persons insured to be represented by their
mandated lawyer remains unaffected.
Constantin Medien AG will exempt the persons insured from potentially justified
claims of the claimants in accordance with the legal actions by the shareholders
referred to in item II.(3)(c) of the Preamble insofar as by means of legally valid
third party judgement it has not been determined that the persons insured have
deliberately been derelict in their duties.
The persons insured are entitled to the claims for exemption and for
reimbursement of costs against Constantin Medien AG pursuant to para. (1) and
(2) and can assert these claims vis-à-vis Constantin Medien AG. To that extent,
Constantin Medien AG waives its right to offset such claims against possibly
existing counterclaims. Constantin Medien AG may nevertheless offset claims for
reimbursement of costs against the persons insured in connection with the
reimbursement of the advanced legal defense costs pursuant to para. (1) if and to
the extent Constantin Medien AG has been legally validly condemned to pay such
legal defense costs, and that by means of legally valid third party judgement it
has been determined that the persons insured have deliberately been derelict in
their duties and that Constantin Medien AG has fully or in part satisfied the claims
of third parties.
The determination of deliberate action is the equivalent to a judgement being
based on a provision which can only be fulfilled when a deliberate breach of duty
exists.
Until expiry of the period stipulated in Sec. 246 para. (1) Stock Corporation Act
for the rescission of the shareholders' resolution as set forth in item 6. if no action
to rescind has been suited or until dismissal of all actions to rescind regarding the
shareholders’ resolution as set forth in item 6. is legally binding, Chubb will
advance the legal defense costs to be borne by Constantin Medien AG pursuant to
para. (1) by offsetting the amicable settlement sum.
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3.
Compensation
3.1
Insurance Policy
With occurrence of the conditions precedent as referred to in item 6., all
claims and rights of companies insured and persons insured in accordance
with the D&O Insurance referred to in item I.(1), (3) and (4) of the Preamble
shall be finally and absolutely satisfied and settled, unless otherwise
governed in this Agreement. This applies to both present and future, known
and unknown claims.
3.2
Third party liability procedures as set forth in item II.(3)(b) and (5)(a) to
(e) of the Preamble – "Theatro Centro / Tabaluga", "Victory Media",
"World of Tosh", "Mr. Baby", "Peter-Maffay-Stiftung", "Big Guy and
Rusty"
Upon payment of the amicable settlement sum, all possible claims and rights
of Constantin Medien AG as well as of companies controlled by Constantin
Medien AG against persons insured arising from or in connection with the
facts and circumstances of the third party liability procedures referred to in
item II.(3)(b) and (5)(a) to (e) of the Preamble "Theatro Centro / Tabaluga",
"Victory Media", "World of Tosh", "Mr. Baby", "Peter-Maffay-Stiftung",
"Big Guy and Rusty" shall be finally and absolutely satisfied and settled.
This applies to both present and future, known and unknown claims.
The persons insured are entitled to directly refer to the satisfaction of the
claims pursuant to item 3.2.
The compensation of demands develops cumulative effect in favor of third
parties insofar as persons insured would be liable in their internal
relationship in the framework of a joint and several compensations.
3.3
Third party liability procedure referred to in item II.(3)(a) of the
Preamble – "Formel 1"
In the third party liability procedure referred to in item II.(3)(a) of the
Preamble - "Formel 1" - Constantin Medien AG will not enforce against the
persons insured a payment claim which has been determined by a
provisionally enforceable or legally valid judgement or by an enforceable
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title insofar as ACE is not required to exempt the persons insured from the
claims of Constantin Medien AG in accordance with the regulations of the
excess of loss agreement.
Enforcements permissible under item 3.3 para. (1) can only be made by way
of compulsory execution and is limited to the seizure and transfer of the
claims of the persons insured against ACE.
The persons insured are entitled to directly refer to the aforementioned
limitations regarding the enforcement of an enforceable title.
The limitations is dispensed with immediately in case
(1)
that persons insured in whole or in part exempt ACE from its coverage
liability or if such coverage liability has been limited by mutual
agreement or to the disadvantage of Constantin Medien AG, e.g. by an
agreement or waiver; or
(2)
it has been determined by legally valid judgement that ACE is free from
a duty to pay because of a violation of obligation by the persons
insured. The entering into this Agreement by Chubb is not to be
considered as a violation of obligation by the persons insured.
The laps of limitations does only apply to the person insured that fulfils a
criterion as to (1) or (2).
3.4
Further third party liability claims of Constantin Medien AG against the
persons insured resulting from the services provided in board function
Upon occurrence of the conditions precedent referred to in item 6., all further
possible known and unknown claims and rights of Constantin Medien AG and
companies controlled by Constantin Medien AG against persons insured arising
from or in connection with their services provided in board function that would
have been comprised by the D&O Insurance referred to in item I.(1), (3) and (4)
of the Preamble and have arisen prior to 1 January 2006 shall be deemed finally
and absolutely be satisfied and settled, regardless of the available insurance sum
and leaving the regulations in item 3.3 unaffected. The compensation does not
refer to a possible right of recourse of Constantin Medien AG against a person
insured due to a sentence in one of the legal actions by the shareholders referred
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to in item II.(3)(c) of the Preamble, if and to the extent Constantin Medien AG is
sentenced by a legally valid third party liability judgement to such payment, and if
by means of a legally valid third party liability judgement it has been determined
that the persons insured have deliberately been derelict in their duties and that
Constantin Medien AG has fully or in part satisfied the claims of third parties.
The persons insured are entitled to directly refer to the compensation of the
The compensation of claims also develops a cumulative effect in favour of
third parties insofar as persons insured would be liable vis-à-vis the third
parties in their internal relationship in the framework of a joint and several
compensation.
4.
Exemption obligation of Constantin Medien AG
If and to the extent ACE claims compensation against persons insured due
to or in connection with this Agreement, Constantin Medien AG will exempt
the persons insured from the costs necessary and appropriate to avoid the
claims including costs for legal defense as well as from possibly justified
claims, insofar as Constantin Medien AG is contractually or statutorily bound
to do so.
5.
Costs for the amicable settlement
The costs of the parties arising in connection with the entering into this
Agreement will be set off against one another ["gegeneinander aufgehoben",
i.e. each party shall bear its own costs].
6.
Conditions precedent
The effectiveness of this Agreement is in accordance with Section 93
para. (4) sentence 3 Stock Corporation Act subject to the following
conditions precedent:
•
the extraordinary shareholders' meeting of Constantin Medien AG
effectively approves this Agreement;
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•
no minority with a total share in the company of at least 10% of the
share capital raises an objection for record as to this resolution.
Constantin Medien AG shall inform Chubb about the resolution of the
extraordinary shareholders' meeting as well as about a possible objection by
presenting a written communication by the notary in charge of the minutes of
the extraordinary shareholders' meeting.
7.
Notifications and declarations
All notifications and declarations arising from or in connection with this
Agreement have to be in writing and are to be addressed to:
7.1 For Constantin Medien AG:
Bernhard Burgener
Chairman of the management
board
Münchener Straße 101g
85737 Ismaning
7.2 For Chubb:
Chubb Insurance Company
Europe SE
Mrs. Andrea Zitzmann
Herr Dr. Norbert Wilga
Grafenberger Allee 295
40237 Düsseldorf
of
cc:
Bub, Gauweiler & Partner
Attorney-at-law Franz Enderle
Promenadeplatz 9
80333 München
cc:
NÖRR STIEFENHOFER LUTZ
• Partnerschaft
Attorney-at-law Dr. Oliver Sieg
Attorney-at-law Dr. Henning
Schaloske
Victoriaplatz 2
40477 Düsseldorf
8.
Final provisions
8.1
The entering into this Agreement takes place without acknowledging a legal
obligation beyond this Agreement to do so and without precedent for the
legal situation. In particular no legal obligation as to insurance coverage of
Chubb vis-à-vis Constantin Medien AG or the persons insured is
incorporated with the entering into this Agreement. And in addition, entering
into this Agreement does not render precedent for a violation of duty, let
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alone a liability of the persons insured against Constantin Medien AG, as to
claims for compensation raised by Constantin Medien AG.
8.2
Constantin Medien AG shall inform Chubb without delay about any action
for rescission being filed within the statutory period of time against the
resolution of the extraordinary shareholders' meeting of Constantin Medien
AG approving this Agreement. Constantin Medien AG shall do its utmost to
avoid any action for rescission and shall regularly as well as upon demand
inform Chubb about the procedure(s) without delay and in all detail.
8.3
The insurance policy regarding the insurance agreement for the periods of
time referred to in items I.(1), (3) and (4) of the Preamble is in the possession
of Constantin Medien AG. Chubb received a certified copy of the policy.
8.4
For the terms in bolt being used in this Agreement the definitions in § 13
AVB OLA 98 and/or § 12 AVB OLA 2003 for the respective insurance term
shall apply.
8.5
There are no collateral clauses to this Agreement. Amendments,
modifications and collateral clauses to this Agreement, including this
requirement of the written form, need to be made in writing.
8.6
In case a provision of this Agreement is or becomes invalid in whole or in
part, the validity of the remaining provisions shall not be affected thereof. In
substitution of the invalid provision, insofar as statutorily permissible, an
appropriate regulation coming closest to the economic aim the parties
whished or would have whished if they had been aware of the invalidity of
the provision shall apply. The same applies accordingly to any omission in
the Agreement.
8.7
To all legal disputes arising from or in connection with this Agreement
German law shall apply, excluding international civil law.
8.8
It has been agreed that exclusively the German Courts shall be responsible
for all legal disputes arising from or in connection with this Agreement.
Exclusive venue shall be Düsseldorf."
Annex 1 to the settlement agreement contains a list of all legal actions by the
shareholders referred to in item II.(3)(c) of the Preamble as of 15 July 2009. Listed
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are a total of 614 procedures at first and second instance (including delinquency
procedures and applications for information on a point of law) as well as
proceedings before the Federal Court of Justice of Germany and the Federal
Constitutional Court, respectively. The list is subdivided by settled and pending
procedures as well as by the courts at which the procedures are or were pending.
There are listed the following settled proceedings: 75 procedures before the
Regional Court and the Higher Regional Court Frankfurt, respectively; 254
procedures before the Local Court and the Regional Court Munich, respectively;
103 procedures before the Higher Regional Court Munich (including 9 procedures
in the category AG/LG München) as well as 26 procedures in connection with
investor-related model case procedures (Kapitalanleger-Musterverfahrensgesetz,
KapMuG); 2 procedures before the Regional Court and the Higher Regional Court
Stuttgart, respectively and 35 procedures before the Federal Court of Justice of
Germany. There are listed the following pending procedures: 1 procedure before
the Regional Court Frankfurt; 69 procedures before the Local Court and the
Regional Court Munich, respectively; 13 procedures before the Higher Regional
Court Munich and 3 procedures before the Federal Court of Justice of Germany.
Furthermore, the list contains 4 applications for information on a point of law and
25 delinquency procedures. Finally 4 lawsuits are listed which are addressed solely
against Mssrs. Florian and Thomas Haffa.
Annex 2 to the settlement agreement contains 2 documents. Annex 2.1 contains the
circumstances announcement which has been delivered to the D&O insurers Chubb
Insurance Company of Europe SE and ACE Insurance SA-NV on 22 December
2003 and Annex 2.2 contains the circumstances announcement which has been
delivered to the D&O insurer Chubb Insurance Company of Europe SE on
20 December 2005. The other documents referred to in the circumstances
announcements are no appendices to this agreement.
In the circumstances announcement dated 22 December 2003 (Annex 2.1)
circumstances of the case are described from which – subject to further review – from
the point of time when the declaration has been issued possible claims for compensation
against board members of the company could result. In Annex 2.1 the following
circumstances are listed: incidents in connection with the acquisition of Tele-MünchenGroup, incidents in connection with the Junior-TV-entities, the Formel-1-transaction,
incidents in connection with the Jim Henson Company, incidents in connection with the
acquisition of Tabaluga as well as with the acquisition of interests in Plus License, in
Junior Toys, in Dolce Media, in TFC, in Networx, in Constantin Film KG, in FJE-Film,
in TheatrOCentrO, in Talit, in My Toys and in Publishing Partner GmbH. In addition,
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there are briefly described the complex circumstances on which the present pending
legal action of the shareholders are based.
In Annex 2.2, such circumstances are listed being or possibly being part of vicarious
liability lawsuits; furthermore, the respectively initiated judicial and extrajudicial
measures are described. The descriptions regard the following circumstances: Formel-1transaction, acquisition of interests in TheatrOCentro and in Tabaluga as well as a
donation to the Peter-Maffay-Foundation, the co-production agreements Mr. Baby and
World of Tosh as well as the license agreement Big Guy. In addition, there are
described the circumstances on which the shareholders base their compensation claims
against board members and the legal predecessor of the company, EM.TV AG.
Regarding these legal actions of the shareholders, there are described the legal steps
against the board members being applicable in case the company loses the legal actions
of the shareholders. Finally, claims and counterclaims of third parties (Mrs. Helga Jokl,
Victory Media AG and Free Film Productions GmbH) against EM.TV AG (the legal
predecessor of the company) are briefly described in which the company declared
litigation against management- and supervisory board members. Furthermore, there are
described ceased preliminary proceedings against management- and supervisory board
members of the company as well as a criminal procedure against an employee in
Switzerland.
2.
Taking of decisions regarding the approval of entering into an agreement
between the company and ACE European Group Limited, administration
for Germany, as well as regarding the waiving of claims for compensation
against former management and supervisory board members.
Management and supervisory board suggest taking the following decision:
"The entering into the agreement between Constantin Medien AG,
Ismaning, and ACE European Group Limited, administration for Germany
in Frankfurt am Main dated 4 November 2009 is approved. In accordance
with the more detailed provisions of the aforementioned agreement
between the company and ACE European Group Limited, administration
for Germany in Frankfurt, the company waives all rights and claims for
compensation arisen from or in connection with the circumstances, which
are topics of the third liability proceedings "Formel 1" described in this
agreement in more detail, against (1) Mr. Thomas Haffa, who has been
chairman of the management board of the predecessor in title of the
company (EM.TV & Merchandising AG) in the period from 8 August
- 17 -
1997 until 24 July 2001, and (2) Mr. Florian Haffa, who has been member
of the management board of the predecessor in title of the company
(EM.TV & Merchandising AG) in the period from 8 August 1997 until
3 December 2000, and (3) Mr. Franz Prinz von Auersperg, who has been
member of the management board of the predecessor in title of the
1997 until 29 February 2000, and (4) Mr. Ulrich Goebel (Dr.), who has
been member of the management board of the predecessor in title of the
company (EM.TV & Merchandising AG) in the period from 1 October
1999 until 20 December 2000, and (5) Mr. Hans Peter Vriens who has
company (EM.TV & Merchandising AG) in the period from 1 November
1999 until 5 March 2001, and (6) Mrs. Sylvia Rothblum (Dr.), who has
company (EM.TV & Merchandising AG) in the period from 1 March 2000
until 10 May 2001, and (7) Mr. Rolf Rickmeyer, who has been member of
the management board of the predecessor in title of the company (EM.TV
& Merchandising AG) in the period from 1 November 2000 until
31 August 2001, and (8) Mr. Nickolaus Becker (Dr.), who has been
chairman of the supervisory board of the predecessor in title of the
1997 until 30 March 2001, and (9) Mr. Axel Kollar (Prof. Dr.), who has
been member of the supervisory board of the predecessor in title of the
1997 until 1 August 2001, and (10) Mr. Matthias Schwarz (Prof. Dr.), who
has been member of the supervisory board of the predecessor in title of the
1997 until 1 August 2001."
The essential contents of the mutual agreement are promulgated as follows:
"AGREEMENT
between
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Constantin Medien AG, Münchener Straße 101g, 85737 Ismaning
- hereinafter referred to as "Constantin Medien AG" and
ACE European Group Limited, administration for Germany, Lurgiallee 10, 60439
Frankfurt a.M.
- hereinafter referred to as "ACE” - Constantin Medien AG and ACE,
jointly hereinafter referred to as "the Parties" -
Preamble:
I.
(1)
Constantin Medien AG, formerly operating under the name of EM.Sport
Media AG and EM.TV AG, as legal successor of the merged EM.TV &
Merchandising AG, maintained with CUBB Insurance Company of Europe
S.E. (hereinafter referred to as "CHUBB") a financial loss liability insurance
for the period of time from 1 January 2000 until 1 January 2004 for directors
and officers (D&O Insurance) on the basis of the General Insurance Terms
AVB OLA 1998 and the Special Terms (Policy No. 61-2074) and, in
accordance with Special Term No. 5 dated 1 January 2001 for misdemeanor
prior to 1 January 2001, with an insurance sum of EUR 51,129,188 (in
words: euro fifty-one million one-hundred and twenty-nine thousand onehundred eighty-eight) per insurance case and in total per period of
insurance.
(2)
For the period from 3 March 2000 until 31 December 2000 EM.TV &
Merchandising AG maintained a financial loss liability insurance for
directors and officers (D&O Insurance) with ACE Insurance S.A.-N.V.,
which transferred its insurance portfolio to ACE. This was considered to be
an excess of loss agreement (policy no. 30 GE 600032) on the basis of the
General Insurance Terms AVB OLA 1998 and the Special Terms of the
agreement between Constantin Medien AG and CHUBB (Policy No. 612074) with an insurance sum for misdemeanor prior to 1 January 2001 of
- 19 -
EUR 51,129,188 (in words: euro fifty-one million one hundred and twentynine thousand one hundred eighty-eight) per insurance case and in total per
period of insurance for such part of loss exceeding the limit of indemnity
covered by the basic agreement to the amount of EUR 51,129,188 (in words:
euro fifty-one million one hundred and twenty-nine thousand one hundred
eighty-eight) per insurance case.
(3)
Constantin Medien AG and CHUBB prolongated the D&O Insurance referred
to in item (1) on the basis of the General Insurance Terms AVB OLA 2003
and the Special Terms for the period of time from 1 January 2004 until
(4)
Constantin Medien AG and CHUBB prolongated the D&O Insurance referred
to in items (1) and (3) on the basis of the General Insurance Terms AVB
OLA 2003 and the Special Terms for the period of time from 1 January 2005
until 1 January 2006 with a sublimit for misdemeanor prior to 15 September
2001 of EUR 1,875,000 (in words: euro one million eight-hundred seventyfive thousand) per insurance case and in total per period of insurance.
II.
(1)
Constantin Medien AG has claimed compensation from several persons
insured in various lawsuits because of alleged breach of duty in connection
with the actions of the boards. The sued persons insured have declared
litigation against other persons insured. Furthermore, Constantin Medien
AG has, to the extent third parties claimed compensation, declared litigation
against other persons insured. Finally, several shareholders have claimed
compensation against Constantin Medien AG and persons insured.
(2)
With letter dated 7 May 2007 ACE has preliminarily granted to the persons
insured insurance coverage in accordance with the Insurance Terms and
Conditions and limited to adequate legal defense costs concerning claims for
damages asserted from the insurance holder or other persons insured in
connection with fall in value of the EM.TV share after the profit alert in
December 2000 in form of legal defense cost coverage. Up to now, insurance
coverage in form of legal defense cost coverage has not been made use of.
- 20 -
(3)
The following third party liability proceedings and circumstance
(a)
"Formel 1" (Regional Court Munich I – 5HK O 19261/04)
(b)
"Theatro Centro / Tabaluga" (Regional Court Munich I – 5HK O
16125/05; Higher Regional Court – 7 U 1784/09) with exception of the
procedural part "Peter Maffay-Stiftung" in accordance with the
Preamble item II (5) (d).
(c)
Shareholders' actions before various courts. In particular the
shareholders' actions listed in Annex 1 are referred to. The list in
Annex 1 is not conclusive.
(d)
The circumstances announcement in accordance with AVB OLA 98
(Annex 2). The list in Annex 2 is not conclusive.
The aforementioned chronological listing of shareholders' actions and
circumstances announcements in accordance with the Preamble item II (3)
(c) and (d) does not apply in so far as the process has not effectively been
filed with ACE within the period of time for late registration. However, a
change of burden of proof is not connected therewith.
(4)
Neither third party liability proceedings nor circumstances announcements
are attributed to the period of time of the D&O Insurance described in item
I.(3).
(5)
The following third party liability proceedings and circumstances
(a)
"Victory Media" (Regional Court Munich I – 21 O 15695/04; Higher
(b)
"World of Tosh" (Regional Court Munich I – 5HK O 18333/05; Higher
- 21 -
(6)
(c)
"Mr. Baby" (Regional Court Munich I – 5HK O 17701/05; Higher
(d)
"Peter-Maffay-Stiftung" (Regional Court Munich I – 5HK O 16125/05;
(e)
"Big Guy and Rusty" (Regional Court Munich I – 5HK O 18272/04;
(f)
The damage claimed in the third party liability proceeding "Formel 1" exceeds
both the insurance sum stipulated in the basic agreement between Constantin
Medien AG and CHUBB of EUR 51,129,188 (in words: euro fifty-one million
one hundred and twenty-nine thousand one hundred eighty-eight) as well as the
insurance sum according to the excess of loss agreement EUR 51,129,188 (in
words: euro fifty-one million one hundred and twenty-nine thousand one
hundred eighty-eight). This process is pending in first instance at the Regional
Court Munich I under file reference 5HK O 19261/04.
III.
On 27/28 August 2009, Constantin Medien AG entered into the attached insurance
agreement with CHUBB (Annex 3) in order to settle the different points of view
regarding liability and coverage, by which the third party liability proceedings listed in
the Preamble in item II (3) (b) and (5) (b) to (e) are settled.
With this provision and in order to settle the different points of view regarding
liability and coverage, the Parties agree as follows:
- 22 -
1.
Payment
1.1
ACE pays to Constantin Medien AG EUR 27.5 Mio. (in words: twenty-seven
million five hundred thousand ) (hereinafter referred to the "amicable
settlement sum").
1.2
The payment of the amicable settlement sum becomes due two weeks after
the occurrence of the following events:
1.3
-
effective signing of this agreement;
-
occurrence of the conditions precedent as set forth in item 5., and
-
non-voidability of the shareholders’ resolution as set forth in item 5.,
especially if no action to rescind has been suited within the period of
time stipulated in Section 246 para. 1 German Stock Corporation Act,
or if all actions to rescind regarding the shareholders’ resolution as set
forth in item 5. have been effectively rejected.
The payment of the amicable settlement sum shall be effected by means of
bank transfer to the account of Constantin Medien AG:
Account No.: 1191046
IBAN: DE29 7005 0000 0001 1910 46
Bank: Bayerische Landesbank
Bank Code: 700 500 00
BIC/SWIFT: BYLADEMM
2.
Third party liability proceeding and costs
2.1
The parties agree that the insurance coverage of ACE resulting from the
insurance agreement with EM.TV & Merchandising AG shall be limited to
the third party liability proceeding pursuant to item II.(3) (a) of the Preamble.
For all other third party liability proceedings or circumstances
announcements which are, in particular, listed in item II.(3) (b) to (d) of the
Preamble but also in item II.(5) of the Preamble there is no contractual
insurance coverage.
- 23 -
2.2
Constantin Medien AG and ACE agree that the third party liability
proceeding as set forth in item II.(3) (a) of the Preamble shall be terminated
immediately after successful credit of the amicable settlement sum. This aim
is preferably to be reached by means of a mutual settlement declaration.
Constantin Medien AG undertakes to immediately, however not later than
one week after successful credit of the amicable settlement sum, declare the
third party liability proceedings as set forth in item II.(3) (a) of the Preamble
settled and to dispense with a decision as to costs under reference as to the
final provision in item 2.3 of this Agreement. ACE will explicitly and in
writing instruct the sued persons insured to approve the settlement
declaration of Constantin Medien AG pursuant to the third party liability
proceeding as set forth in item II.(3) (a) of the Preamble and on their part to
dispense with a decision as to costs due to the final provision in item 2.3 of
this Agreement.
2.3
In the third party liability proceeding as set forth in item II.(3) (a) of the
Preamble, Constantin Medien AG bears court fees advanced by it and its own
extrajudicial and court fees, in particular costs for legal advisors. Court fees
advanced by persons insured as well as extrajudicial and court fees, in
particular costs for legal advisors of the persons insured, are not to be borne
by Constantin Medien AG. In accordance with the agreement between
CHUBB and Constantin Medien AG dated 27/28 August 2009, CHUBB bears
the legal defense cost coverage of the persons insured in accordance with
the provisions of the D&O insurance agreement (policy no. 61-2074) which
have become due until 28 August 2009. The parties assume that in the third
liability proceeding set forth in item II.(3) (a) of the Preamble no legal
defense cost have been due after 28 August 2009 or will become due until the
settlement of said third party liability procedure; costs which become due
against expectation after 28 August 2009 shall be borne by Constantin
Medien AG.
Constantin Medien AG will immediately after the date of the signing of this
Agreement apply for a suspension of the third party liability proceeding as
set forth in item II.(3) (a) of the Preamble under furnishing of the pending
completion of the amicable settlement agreement with a reference to
potential actions for voidance. Otherwise and in contrast to the provisions set
forth in item 2.2 subpara. 1, Constantin Medien AG shall bear all
extrajudicial and court fees of the persons insured resulting thereof.
- 24 -
3.
Compensation
3.1
Third party liability proceeding "Formel 1"
Upon payment of the amicable settlement sum, all possible claims and rights
against persons insured arising from or in connection with the facts and
circumstances of the third party liability proceeding referred to in item II.(3)
(a) of the Preamble "Formel 1" shall be finally and absolutely satisfied and
settled. This applies to both present and future, known and unknown claims.
The persons insured are entitled to directly refer to the satisfaction of the
The compensation of demands develops cumulative effect in favor of third
parties insofar as persons insured would be liable in their internal
relationship in the framework of a joint and several compensations.
3.2
Insurance Policy
With occurrence of the conditions precedent as referred to in item 5., all
claims and rights of companies insured, persons insured and their
respective legal successor in accordance with the D&O-excess of loss
insurance referred to in item I.(2) of the Preamble including possible
confirmations of cover with respect to legal defense costs shall be finally and
absolutely satisfied and settled, unless otherwise governed in this Agreement.
This applies to both present and future, known and unknown claims. For
reasons of precaution, Constantin Medien AG commits to ACE to fulfill the
indemnity bond in accordance with item 2.4 of the settlement agreement
between Constantin Medien AG and CHUBB dated 27/28 August 2009.
According to such provisions, Constantin Medien AG shall bear all legal
defense costs resulting from the shareholders' actions after 28 August 2009
and exempts from justified claims of the suiting shareholders in so far as a
coverage obligation exists.
3.3
Settlement Agreement dated 27/28 August 2009
The parties have agreed and still agree that all existing claims for
compensation of Constantin Medien AG and the persons insured in
connection with the third party liability proceeding "Formel 1" referred to in
- 25 -
item II.(3) (a) of the Preamble arising from the D&O insurance policies with
CHUBB listed in item I.(1), (3) and (4) of the Preamble have been and still
are due to ACE, that ACE is entitled to dispose of the claims if and as far as
Constantin Medien AG could have and could dispose of them, and that ACE
had and has the right to assert those claims. A waiver of such claims is not
connected with this agreement.
4.
Costs for the amicable settlement
The costs of the parties arising in connection with the entering into this
Agreement will be set off against one another ["gegeneinander aufgehoben",
i.e. each party shall bear its own costs].
5.
Conditions precedent
The effectiveness of this Agreement is in accordance with Section 93
para. (4) sentence 3 Stock Corporation Act subject to the following
conditions precedent:
•
the shareholders' meeting of Constantin Medien AG effectively
approves this Agreement;
•
no minority with a total share in the company of at least 10% of the
share capital raises an objection for record as to this resolution.
Constantin Medien AG shall inform ACE about the resolution of the
shareholders' meeting as well as about a possible objection by presenting a
written communication by the notary in charge of the minutes of the
shareholders' meeting.
6.
Notifications and declarations
All notifications and declarations arising from or in connection with this
Agreement have to be in writing and are to be addressed to:
6.1 For Constantin Medien AG:
Bernhard Burgener
cc:
Bub, Gauweiler & Partner
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Chairman of the management
board
85737 Ismaning
Attorney-at-law Franz
Promenadeplatz 9
80333 Munich
Enderle
6.2 For ACE:
ACE European Group Limited
Direktion für Deutschland
Herr Martin Schultz
Lurgiallee 10
60439 Frankfurt a.M
cc:
Hecker Loritz Sessig
Rechtsanwalt Michael Hecker
Widenmayerstr. 4
80538 Munich
7.
Final provisions
7.1
The entering into this Agreement takes place without acknowledging a legal
obligation beyond this Agreement to do so and without precedent for the
legal situation. In particular no legal obligation as to insurance coverage of
ACE vis-à-vis Constantin Medien AG or the persons insured is connected
with the entering into this Agreement. And in addition, entering into this
Agreement does not render precedent for a violation of duty, let alone a
liability of the persons insured vis-à-vis Constantin Medien AG, as to
claims for compensation raised by Constantin Medien AG.
7.2
In addition, the entering into this agreement does not constitute a waiver of
claims for compensation or claims for recourse of ACE against third parties
not being party to this Settlement Agreement. The same applies to those
claims for compensation or claims for recourse of the persons insured against
third parties who are no party to this Settlement Agreement, which are
transferred to ACE by act of law or have to be assigned or actually are
assigned to ACE as third party liability. The entering into this Agreement
does especially not represent an explicit or implied acceptance or approval of
the Settlement Agreement between Constantin Medien AG and CHUBB.
Furthermore, ACE can, especially in connection with the enforcement of
claims against third parties who are not party to this Agreement, refer to, for
example, exclusion of liability, rescission rights and rights of withdrawal or
other rights resulting from the insurance agreement which result or could
result in an exclusion of insurance coverage. Insofar, the entering into this
agreement does not represent an explicit or implied waiver of rights or legal
- 27 -
positions. This settlement agreement is not affect hereof. For reasons of
precaution, ACE waives all possible claims for damages against Constantin
Medien AG resulting from or in connection with the entering into the
Settlement Agreement between Constantin Medien AG and CHUBB dated
27/28 August 2009.
7.3
Constantin Medien AG shall inform ACE without delay about any action for
rescission being filed within the statutory period of time against the
resolution of the shareholders' meeting of Constantin Medien AG approving
this Agreement. Constantin Medien AG shall do its utmost to avoid any
action for rescission and shall regularly as well as upon demand inform ACE
about the procedure(s) without delay and in all detail.
7.4
The insurance policy regarding the insurance agreement for the period of
time referred to in items I.(2) of the Preamble is in the possession of
Constantin Medien AG. ACE received a certified copy of the policy.
7.5
For the terms in bolt being used in this Agreement the definitions in § 13
AVB OLA 98 shall apply.
7.6
There are no collateral clauses to this Agreement. Amendments,
modifications and collateral clauses to this Agreement, including this
requirement of the written form, need to be made in writing.
7.7
In case a provision of this Agreement is or becomes invalid in whole or in
part, the validity of the remaining provisions shall not be affected thereof. In
substitution of the invalid provision, insofar as statutorily permissible, an
appropriate regulation coming closest to the economic aim the parties
whished or would have whished if they had been aware of the invalidity of
the provision shall apply. The same applies accordingly to any omission in
the Agreement.
7.8
To all legal disputes arising from or in connection with this Agreement
German law shall apply, excluding international civil law.
7.9
It has been agreed that exclusively the German Courts shall be responsible
for all legal disputes arising from or in connection with this Agreement.
Exclusive venue shall be Frankfurt am Main."
- 28 -
Annex 1 to the settlement agreement contains a list of all legal actions by the
shareholders referred to in item II.(3)(c) of the Preamble as of 15 July 2009. Listed
are a total of 614 procedures at first and second instance (including delinquency
procedures and applications for information on a point of law) as well as
proceedings before the Federal Court of Justice of Germany and the Federal
Constitutional Court, respectively. The list is subdivided by settled and pending
procedures as well as by the courts at which the procedures are or were pending.
There are listed the following settled proceedings: 75 procedures before the
Regional Court and the Higher Regional Court Frankfurt, respectively; 254
procedures before the Local Court and the Regional Court Munich, respectively;
103 procedures before the Higher Regional Court Munich (including 9 procedures
in the category AG/LG München) as well as 26 procedures in connection with
investor-related model case procedures (Kapitalanleger-Musterverfahrensgesetz,
KapMuG); 2 procedures before the Regional Court and the Higher Regional Court
Stuttgart, respectively and 35 procedures before the Federal Court of Justice of
Germany. There are listed the following pending procedures: 1 procedure before
the Regional Court Frankfurt; 69 procedures before the Local Court and the
Regional Court Munich, respectively; 13 procedures before the Higher Regional
Court Munich and 3 procedures before the Federal Court of Justice of Germany.
Furthermore, the list contains 4 applications for information on a point of law and
25 delinquency procedures. Finally 4 lawsuits are listed which are addressed solely
against Mssrs. Florian and Thomas Haffa.
Annex 2 to the settlement agreement contains 2 documents. Annex 2.1 contains the
circumstances announcement which has been delivered to the D&O insurers Chubb
Insurance Company of Europe SE and ACE Insurance SA-NV on 22 December
2003 and Annex 2.2 contains the circumstances announcement which has been
delivered to the D&O insurer Chubb Insurance Company of Europe SE on
20 December 2005. The other documents referred to in the circumstances
announcements are no appendices to this agreement.
In the circumstances announcement dated 22 December 2003 (Annex 2.1)
circumstances of the case are described from which – subject to further review – from
the point of time when the declaration has been issued possible claims for compensation
against board members of the company could result. In Annex 2.1 the following
circumstances are listed: incidents in connection with the acquisition of Tele-MünchenGroup, incidents in connection with the Junior-TV-entities, the Formel-1-transaction,
incidents in connection with the Jim Henson Company, incidents in connection with the
acquisition of Tabaluga as well as with the acquisition of interests in Plus License, in
- 29 -
Junior Toys, in Dolce Media, in TFC, in Networx, in Constantin Film KG, in FJE-Film,
in TheatrOCentrO, in Talit, in My Toys and in Publishing Partner GmbH. In addition,
there are briefly described the complex circumstances on which the present pending
legal action of the shareholders are based.
In Annex 2.2, such circumstances are listed being or possibly being part of vicarious
liability lawsuits; furthermore, the respectively initiated judicial and extrajudicial
measures are described. The descriptions regard the following circumstances: Formel-1transaction, acquisition of interests in TheatrOCentro and in Tabaluga as well as a
donation to the Peter-Maffay-Foundation, the co-production agreements Mr. Baby and
World of Tosh as well as the license agreement Big Guy. In addition, there are
described the circumstances on which the shareholders base their compensation claims
against board members and the legal predecessor of the company, EM.TV AG.
Regarding these legal actions of the shareholders, there are described the legal steps
against the board members being applicable in case the company loses the legal actions
of the shareholders. Finally, claims and counterclaims of third parties (Mrs. Helga Jokl,
Victory Media AG and Free Film Productions GmbH) against EM.TV AG (the legal
predecessor of the company) are briefly described in which the company declared
litigation against management- and supervisory board members. Furthermore, there are
described ceased preliminary proceedings against management- and supervisory board
members of the company as well as a criminal procedure against an employee in
Switzerland.
Annex 3 contains the settlement agreement between the company and CHUBB
Insurance Company of Europe S.E. Düsseldorf branch, dated 27/28 August 2009
(without appendices). The essential contents of such settlement agreement are displayed
in this calling for an extraordinary general meeting in item 1 of the agenda.
Documents laid out
Upon calling the extraordinary shareholders’ meeting, in particular the following
documents are made available to the shareholders in the business premises of
Constantin Medien AG, Münchener Straße 101g in 85737 Ismaning, Germany, and
upon request the shareholders will receive a copy immediately and free of charge:
the agreement between the company and Chubb Insurance Company of
Europe SE dated 27/28 August 2009 including the appendices
- 30 -
the agreement between the company and ACE European Group Limited
dated 4 November 2009 including the appendices
the report of the management board regarding the settlement agreements
with Chubb Insurance Company of Europe SE dated 27/28 August 2009 and
ACE European Group Limited dated 4 November 2009.
Share capital and voting rights
The share capital of the company amounts to EUR 85,130,780 and is divided into
85,130,780 shares. The total amount of voting rights is 85,130,780; thereof 7,496,637
voting rights are resting in accordance with Sec. 71b Stock Corporation Act and in
accordance with Sec. 71b in connection with Sec. 71d Stock Corporation Act. This
information refers to the date of the publication of this invitation in the electronic
Federal Gazette.
Conditions for the participation and the exercise of voting rights
The conditions for the participation are subject to Sec. 121 et. Seq. German Stock
Corporation Act and § 14 of the Articles of Association. Those shareholders are entitled
to participate in the shareholders’ meeting and to exercise voting rights who, at the
latest on 10 December 2009, 12:00 p.m. (which is the expiry of the fifth day before the
extraordinary shareholders' meeting) apply to the company under the following address:
c/o Haubrok Corporate Events GmbH
Landshuter Allee 10
80637 Munich
Germany
Telefax: +49 (0)89 21 0 27-289
in writing, per telefax or in text form, in German or in English language and with proof
of their shareholding in the company. The evidence of the shareholding is to be
provided in the form of a confirmation by the portfolio institution or a securities bank in
written or text form in German or in English language. The certificate must refer to the
beginning of the 21st day before the extraordinary shareholders' meeting, which is
24 November 2009, 00:00 a.m.
- 31 -
Voting right proxy
Shareholders may as well execute their voting rights in the shareholders' meeting by a
proxy, e.g. a financial institution, a shareholders' association or another person of their
choice. The power of attorney shall be provided in text form (Sec. 126b German Civil
Code). The power of attorney can also be transmitted to the company to the following email address: [email protected]. Conjointly with their entry
card and upon request, the shareholders will receive a form to grant authority. Such
form is also available online under the following internet address: www.constantinmedien.de in the category Investor Relations / General Meeting / EGM December 2009
extraordinary.
We offer our shareholders to make use of the possibility to appoint - already before the
shareholders' meeting - a voting representative named by the company and bound by the
orders of the shareholders. Details can be taken from the material sent to the
shareholders by the custodian bank. Additionally, shareholders can take further
information regarding the voting representative named by the company and a form to
appoint and instruct the voting representative on the internet under the following
internet address: www.constantin-medien.de in the category Investor Relations /
General Meeting / EGM December 2009 extraordinary.
Proposals or election suggestions
In accordance with Section 122 para. 2 German Stock Corporation Act shareholders
whose stake in the share capital amounts to 20% or a proportional part of
EUR 500,000.00 can claim that items be put on and announced in the agenda. Such
demand must be submitted to the company under the hereinafter announced address at
the latest 30 days before the general meeting (while the day of the general meeting itself
and the day of receipt of the submitted request are not taken into account), i.e. on
14 November 2009, 12:00 p.m. at the latest.
In accordance with Section 126 para. 1 German Stock Corporation Act each shareholder
has the right to veto against a proposal by the management or the supervisory board
regarding a certain item on the agenda. A counter proposal, in accordance with the more
detailed provisions of Section 126 paras. 1 and 2 German Stock Corporation Act, is to
be made available on the website if submitted to the company at the latest 14 days
before the General meeting (while the day of the general meeting itself and the day of
receipt of the submitted request is not taken into account), i.e. on 30 November 2009,
12:00 p.m. at the latest.
- 32 -
Each shareholder can, in accordance with the more detailed provisions of Section 127
German Stock Corporation Act, make a proposal for the election of supervisory board
members or auditors. In accordance with the more detailed provisions of Sections 126,
127 paras. 1 and 2 German Stock Corporation Act, such suggestion is to be made
available on the website if submitted to the company at the latest 14 days before the
General meeting (while the day of the general meeting itself and the day of receipt of
the submitted request is not taken into account), i.e. on 30 November 2009, 12:00 p.m.
at the latest.
Proposals or election suggestions are exclusively to be submitted to the following
address:
Vorstandsbüro
85737 Ismaning (Germany)
Telefax: +49 (0)89 99 500-388
or to the following e-mail address: [email protected]
Improperly addressed counter-proposals are not considered.
Further information regarding the rights in accordance with Sections 122 para. 2, 126
para. 1 and 127 German Stock Corporation Act are available to the shareholders under
the following internet address: www.constantin-medien.de in the category Investor
Relations / General Meeting / EGM December 2009 extraordinary. Proposals or
election suggestions by shareholders to be published are to be made available under the
aforementioned internet address.
Please note:
In accordance with Section 121 para. 3 sentence 3 no. 1 German Stock Corporation Act
we explain the importance of the evidence date in connection with Section 123 para. 3
sentence 3 German Stock Corporation Act to the effect that only those persons who, at
the beginning of the 21st day before the general meeting, i.e. 24 November 2009, 00:00
a.m., are shareholders of the company and upon fulfillment of the other relevant
provisions in accordance with the articles of association and the relevant legislation may
participate in the general meeting and exercise their voting rights.
In accordance with Section 121 para. 3 no. 3 German Stock Corporation Act, we would
like to point out that each shareholder has the right to demand in the general meeting to
- 33 -
be informed about the company's concerns in so far as this information is necessary to
appropriately asses an item on the agenda. Further information on such right in
accordance with Section 131 para. 1 German Stock Corporation Act is available online
under the following internet address: www.constantin-medien.de in the category
Investor Relations / General Meeting / EGM December 2009 extraordinary.
Furthermore, the information to be published in accordance with Section 124a German
Stock Corporation Act is available under www.constantin-medien.de in the category
Investor Relations / General Meeting / EGM December 2009 extraordinary.
Inquiries and demand of documents
In order to facilitate the preparation of the general meeting and to insure a fast reaction
of the company as far as possible regarding inquiries in connection with the general
meeting, we kindly ask you to send your inquiries and proposals exclusively to the
following address:
Vorstandsbüro
85737 Ismaning (Germany)
Telefax: +49 (0)89 99 500-388
or to the following e-mail address: [email protected]
Ismaning, November 2009
Management Board
- 34 -
Details
for Voting Representation provided through
voting representatives named by Constantin Medien AG
At the extraordinary general meeting of Constantin Medien AG taking place on
15 / 16 December 2009 You have the possibility to appoint a voting representative
named by the Company exercising Your voting rights in connection with Your shares in
Constantin Medien AG.
As voting representatives, the company appointed Mr. Bernhard Orlik and Mrs. Norma
Körnig. They are employees of Haubrok Corporate Events GmbH, Munich. The named
voting representatives are obliged to cast the votes regarding the single items of the
agenda solely in accordance with Your explicit instruction. No instructions and requests
to speak, no orders to submit an inquiry or proposal as well as an objection can be
assigned to the voting representatives named by the company.
If You wish to appoint the voting representatives named by the company, You need to
arrange for the following:
You order one entrance card per deposit with your custodian bank. This entrance card
shall be sent together with the filled-in and signed form of authority and instruction to
the following address:
Mr. Bernhard Orlik and Mrs. Norma Körnig
c/o Haubrok Corporate Events GmbH
Landshuter Allee 10
80637 Munich
Germany
The form of authority and instructions must be received by the voting representatives
named by the Company at the latest by 11 December 2009, 6:00 p.m. under the
aforementioned address in original or by telefax to +49 (0)89 210 27-298.
- 35 -
In case You wish to change Your instructions we ask You kindly to do so using the
form available under www.constantin-medien.de in the category Investor Relations /
General Meeting / EGM December 2009 extraordinary. We ask You kindly to change
Your instructions exclusively on this form and to issue Your instruction in connection
with all items of the agenda (including instructions in connection with items of the
agenda which have not been changed). You can send the completely filled-in form for
change of instruction by post or by telefax to the stated address and fax number. In
order to be considered, changed instructions need to be received by the voting right
proxies by 14 December 2009, 4:00 p.m. at the latest.
In case proper counter-proposals regarding individual items of the agenda are filed with
the Company, these counter-proposals will be made available without delay under
www.constantin-medien.de in the category Investor Relations / General Meeting / EGM
December 2009 extraordinary. Please note that the voting representatives cannot be
instructed with regards to counter-proposals.
Please make sure Your entrance card is ordered in such a timely manner that the
application for participation and the evidence of the shareholding in the company can be
made in due time until 10 December 2009. Please note further that the delivery of the
entrance card and the return consignment of such entrance card and the form of
authority and instruction may need several days. We therefore suggest You order the
entrance card as soon as possible at Your custodian bank.
Ismaning
- 36 -
How to find us
Hilton Munich Park
Am Tucherpark 7
80538 Munich
Germany
Parking lots, subject to a fee, are available at the Hilton Munich Park, however not
sufficient. Furthermore, the parking fees are not refunded by Constantin Medien AG.
The company therefore would like to draw your attention to the Park & Ride-Stations in
the inner city circle which are connected with the public transport system (MVV).
From Munich Airport:
Please take the local train S 8 in the direction to Munich city centre • Disembark at the
station "Ostbahnhof" • Take the bus no. 54 in the direction to "Münchner Freiheit" •
After an approximately 17-minute-ride, please disembark at the station "Am
Tucherpark" which is directly at the hotel, entry "Ballsaal".
From main Station/Karlsplatz Stachus:
Please take tram 17 in the direction to "Effnerplatz" • Please disembark at the station
"Tivolistraße" • After a 6 to 8-minue-walk you are at the Hilton Munich Park (see city
map).
From Marienplatz:
Please take underground U3 in the direction to Olympiaeinkaufszentrum or U6 in the
direction to Fröttmaning / Münchner Freiheit / Garching Forschungszentrum (Info:
same direction, only different ultimate destinations) • Please disembark at the station
"Giselastraße" • Take bus no. 54 in the direction to "Lorettoplatz" / "Ostbahnhof" (Info:
same direction, only different ultimate destinations) • After an approximately 6-minuteride, please disembark at the station "Am Tucherpark" which is directly at the hotel,
next to the main entry • The entry "Ballsaal" can be reached after a few meters
alongside the building and past the cabstand.
- 37 -
Please note: Admittance to the EGM is via the entry "Ballsaal" which is directly located at the bus
stop "Am Tucherpark". Admittance via the hotel lobby to the assembly region is not possible for
organisational reasons.
- 38 -

- 1 - Constantin Medien AG Ismaning – WKN 914720 – – ISIN

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