- 1 -
Settlement Agreement
between
MAN SE, Ungererstr. 69, 80805 Munich,
and
Mr. Anton Weinmann
Preamble
P.1 Mr. Weinmann was a member of the Executive Board of the former MAN Nutzfahrzeuge AG, which has since been renamed MAN Truck & Bus AG, from 1 April 2001 until his resignation on 30 November 2009, and also its Chief Executive Officer from 1 January 2005. Additionally, from 1 January 2005 until his resignation on 30 November 2009, Mr. Weinmann was a member of the Executive Board of the former MAN AG and MAN SE (“MAN”) with responsibility for MAN Nutzfahrzeuge AG.
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 75,300,000.00 each were imposed on MAN Nutzfahrzeuge AG and MAN Turbo AG on 10 December 2009. 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 above-mentioned facts and circumstances shall – with the exception of the Ferrostaal/IPIC Complex – be referred to in the following as “Compliance-Case ISAR”.
P.3 The parties disagree as to whether Mr. Weinmann has breached his duties as board member of MAN and MAN Nutzfahrzeuge AG 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. Weinmann under the termination
agreement with MAN of 30 November 2009 (“Termination Agreement”), MAN exercised – after the deduction of income realized after his resignation in the total amount of EUR 404,055.00 – a right of lien in the amount of EUR 1,270,181.09 to secure any possible damages claims resulting from the Compliance-Case ISAR.
- 2 -
P.5 Alongside other former executive board members of MAN and its subsidiary companies, Mr. Weinmann 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 25,000,000.00 and two excess policies for EUR 35,000,000.00 and EUR 90,000,000.00:
(i) pecuniary loss liability insurance policy taken out for directors and officers between Allianz Global Corporate and Specialty AG (“AGCS”) and MAN with the insurance policy number IHV 70/0493/7999020/509 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 70/0493/7999069/509 of 18 May 2009 (“First Excess Policy”) and
(iii) directors' and officers' liability insurance excess policy between Zurich Insurance plc, Niederlassung Deutschland (branch in Germany) as the lead insurer and MAN with the policy-no. 802.380.091.568 of 5 June 2009.
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”). According to the D&O Settlement ISAR, the D&O Insurers will pay MAN EUR 42,500,000.00 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 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 no later than end of June 2014.
In light of the above, and in order to avoid court proceedings, the parties agree on the following:
§ 1
Personal Contribution
Mr. Weinmann agrees to pay MAN a personal contribution for the adjustment of losses (“Personal Contribution”) in the amount of EUR 1,000,000.00 (in words: one million Eu-ro). This independent obligation to pay the Personal Contribution does not represent an
ac-- 3 ac--
knowledgment by Mr. Weinmann with regard to possible violations of his duties with regard to his function as executive board member of MAN and/or MAN Nutzfahrzeuge AG.
§ 2
Settlement and Satisfaction of Claims arising from or in connection with the Compli-ance-Case ISAR
2.1 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. Weinmann arising from or in connection with the Compliance-Case ISAR, whether known or unknown, conditional or unconditional, from its own rights or from assigned rights, regardless of the legal grounds for such claims, especially due to the breach of organizational and supervisory duties with regard to the compliance-organization, shall be settled and satisfied; any possible claims for repayment of costs and expenses incurred for the criminal defense of Mr. Weinmann shall also be settled and satisfied. Any wage tax related duties or obligations vis-à-vis the tax authorities in connection with such settlement and satisfaction of claims shall – in relation to MAN – be borne solely by Mr. Weinmann.
2.2 The settlement and satisfaction of damages claims pursuant to § 2.1 also covers any claims of MAN Truck & Bus AG, MAN Diesel & Turbo SE and Renk AG, each in-cluding their subsidiary companies, against Mr. Weinmann arising from or in connec-tion with the Compliance-Case ISAR. With regard to the aforemenconnec-tioned companies MAN will exert its influence so as to prevent any such damages claims against Mr. Weinmann from being asserted.
2.3 Mr. Weinmann agrees not to claim the refunding of costs, fees or expenses of his criminal defense in connection with the Compliance-Case ISAR in excess of the in-voices that he submitted to MAN Truck & Bus AG before the signing of this settle-ment agreesettle-ment from MAN, MAN Truck & Bus AG or their affiliated companies, and also not from HDI-Gerling Industrie Versicherung AG (“HDI Gerling”) or under the D&O Insurance. In the event that Mr. Weinmann claims the refunding of such costs, fees or expenses contrary to this obligation, Mr. Weinmann agrees to refund MAN the amount that HDI Gerling recovers from MAN, MAN Truck & Bus AG or their affiliated companies, or to refund MAN the amount that the D&O Insurers de-duct as costs under the D&O Settlement ISAR (P.6). Mr. Weinmann hereby assigns to MAN any possible claims against HDI Gerling or under the D&O Insurance for the refunding of costs, fees or expenses. MAN hereby accepts this assignment.
§ 3
Settlement of Claims between Co-Debtors [“Innenschuldnerausgleich”]
3.1 With regard to the Compliance-Case ISAR, Mr. Weinmann hereby assigns to MAN any possible co-debtor recourse claims he may have against former and current
execu-- 4 execu--
tive 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 le-gal predecessors and subsidiary companies. MAN hereby accepts the assignment. 3.2 Payments by the aforementioned third parties do not lead to the fulfillment of existing
claims against Mr. Weinmann.
§ 4 Indemnity
4.1 MAN shall indemnify Mr. Weinmann from
(a) possible claims of MAN Truck & Bus AG, MAN Diesel & Turbo SE and/or Renk AG, each including their subsidiary companies,
(b) possible co-debtor recourse claims of other former or current executive and su-pervisory board members and/or employees of MAN, MAN Truck & Bus AG, MAN Diesel & Turbo SE and/or Renk AG, each including their legal predeces-sors and subsidiary companies,
(c) possible claims of customers of MAN, MAN Truck & Bus AG and their subsidi-ary companies, as well as
(d) possible claims of AGCS, HDI Gerling or Zurich Insurance plc
arising from or in connection with the Compliance-Case ISAR. The indemnification takes legal effect only if and to the extent that Mr. Weinmann paid his Personal Con-tribution pursuant to § 1. The indemnification does not apply if Mr. Weinmann admits any claims as described in (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.
4.2 For the avoidance of doubt, the indemnification pursuant to § 4.1 does not apply to claims described in § 4.1 (a), (b), (c) or (d) that Mr. Weinmann 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 § 6, unless Mr. Weinmann disclosed such claims to MAN and MAN has decided upon a defense against such claims. Mr. Weinmann 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 -
§ 5
Right of Lien, Due Date and Methods of Payment
5.1 Up until this settlement agreement takes legal effect pursuant to § 6, MAN is entitled to exercise a right of lien in the amount of the Personal Contribution (§ 1) with respect to the possible remaining severance payment claims of Mr. Weinmann under the Termination Agreement. Interest claims of Mr. Weinmann against MAN due to the withholding of severance payments have not arisen and will not arise up until the due date pursuant to § 5.5.
5.2 The Personal Contribution is due on the first workday of the month that follows the approval by the shareholders’ meeting of MAN pursuant to § 6.2. 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 approvals of the settlement agreement by the share-holders’ meeting of MAN and by the shareshare-holders’ meeting of MAN Truck & Bus AG finally take legal effect.
5.3 The Personal Contribution shall be paid by way of a declaration by MAN vis-à-vis Mr. Weinmann offsetting against unpaid severance payment claims under the Termi-nation Agreement. Mr. Weinmann alone shall, in his relationship with MAN, bear any and all wage tax related duties or obligations vis-à-vis the tax authorities in connec-tion 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 any remaining amount, unless Mr. Weinmann 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. Weinmann hereby agrees with immediate effect to the withholding and remittance of wage tax and other duties as determined by MAN.
5.4 In the event that the unpaid severance payment claims under the Termination Agree-ment are – after any withholding and remittance of wage tax and other duties pursuant to § 5.3 – not enough to pay for the Personal Contribution by offsetting, Mr. Weinmann agrees to pay the difference between the Personal Contribution and the off-set net severance payment claims by remittance in Euro free of cost for MAN to a bank account of MAN yet to be designated.
5.5 A payment of any net residual amount (after the offsetting) shall be due on the first workday of the month that follows the approval of the shareholders’ meeting of MAN pursuant to § 6.2.
- 6 -
§ 6 Legal Effect
6.1 The legal effect of this settlement agreement is subject to the condition precedent that the Supervisory Board of MAN and the Supervisory Board of MAN Truck & Bus AG give their approval. The condition is deemed to be met as soon as the Chairman of the Supervisory Board of MAN confirms to Mr. Weinmann in writing that the Superviso-ry Board of MAN and the SupervisoSuperviso-ry Board of MAN Truck & Bus AG have given their approval to this settlement agreement.
6.2 The legal effect of this settlement agreement is subject to the additional condition precedent that the shareholders’ meeting of MAN and the shareholders’ meeting of MAN Truck & Bus AG approve this settlement agreement and no minority of share-holders whose shares in total represent at least 10% of the capital stock of these com-panies 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. Weinmann in writing that the aforementioned requirements have been met.
6.3 § 2.3, § 4.2, § 5, § 7, § 8.3, § 8.4 and § 8.5 of this settlement agreement shall, by way of derogation from § 6.1 und § 6.2, have immediate effect.
6.4 The legal effect of this settlement agreement does not depend on the legal effect of settlement agreements with other former executive board members.
§ 7
Waiver of the Defense of the Statute of Limitations
7.1 Mr. Weinmann hereby confirms his waiver, up until and including the end of the An-nual General Meeting of MAN in 2014, of the defense of the statute of limitations vis-à-vis MAN in accordance with his statement of 10 November 2009 in connection with the statements of 5 February 2010, 22 December 2010 and 17 February 2012 and 10 May 2013. Furthermore, Mr. Weinmann hereby confirms his waiver, up until and including the end of the Annual General Meeting of MAN Truck & Bus AG in 2014, of the defense of the statute of limitations vis-à-vis MAN Truck & Bus AG in accord-ance with his statement of 10 November 2009 in connection with the statements of 5 February 2010, 22 December 2010, 17 February 2012 and 15 February 2013.
7.2 In the event that a complaint is filed against resolutions of the shareholders’ meetings regarding the approval of this settlement agreement prior to the expiry of the statutory deadline, Mr. Weinmann shall prolong as of now his respective waiver of the defense of the statute of limitations pursuant to § 7.1 until 30 June 2016.
- 7 -
7.3 In the event that a complaint is filed against resolutions of the shareholders’ meetings regarding the approval of the D&O Settlement ISAR prior to the expiry of the statuto-ry deadline, Mr. Weinmann shall prolong as of now his respective waiver of the de-fense of the statute of limitations pursuant to § 7.1 until 30 June 2016.
7.4 The statements in § 7.2 and § 7.3 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 § 7.1; only the deadline is prolonged respectively.
§ 8 Miscellaneous
8.1 There are no ancillary agreements to this settlement agreement. Any changes to this settlement agreement, including this written form requirement, must be made in writ-ing.
8.2 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 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 ab-sent provision. Similarly, the parties will re-enter into this settlement agreement and subsequently carry out all actions necessary in the event that this settlement agree-ment is or becomes wholly or partially invalid or unenforceable and such deficiency is capable of being remedied subsequently.
8.3 § 177 Para. 2 German Civil Code shall not apply.
8.4 All disputes arising from or in connection with this settlement agreement shall be governed by German law. The place of performance and the place of jurisdiction shall be, as far as legally permitted, Munich.
8.5 The parties hereby agree to treat this settlement agreement as confidential, unless they are obligated to make disclosure by law or the disclosure serves to execute this set-tlement agreement. Any press statements may only be released with the consent of the other party.
- 8 -
Berlin, 8 November 2013 Landensberg, 31 October 2013 Signed by Steinmeyer, Rechtsanwalt
(MAN SE)
Signed by Weinmann (Mr. Anton Weinmann)
