Domination and Profit and Loss Transfer Agreement. between. Lenovo Germany Holding GmbH, Berlin. and. MEDION AG, Essen

Transcription

1 Domination and Profit and Loss Transfer Agreement between Lenovo Germany Holding GmbH, Berlin and MEDION AG, Essen 1 Management (1) MEDION AG shall submit the management of its company under the control of Lenovo Germany Holding GmbH. In accordance with this, Lenovo Germany Holding GmbH shall be entitled to give general instructions or instructions based on individual cases to the management board of MEDION AG with respect to the management of the company. The management board of MEDION AG shall be obliged to follow the instructions of Lenovo Germany Holding GmbH. The management board of MEDION AG shall remain responsible for the management and representation of MEDION AG. (2) Lenovo Germany Holding GmbH shall not be entitled to give instructions to the management board of MEDION AG to amend, to maintain or to terminate this Agreement. (3) Any instructions require text form (Textform). 2 Transfer of profits (1) MEDION AG is obligated to transfer its entire profits to Lenovo Germany Holding GmbH. Subject to the creation or dissolution of reserves pursuant to Para. 2, the entire annual net income which would arise without the profit transfer, reduced by (i) any loss carried forward from the preceding year, (ii) the amount to be transferred to the legal reserve pursuant to 300 German Stock Corporation Act (Aktiengesetz), and, as the case may be, (iii) an amount which must not be distributed pursuant to 268 Para. 8 German

2 2 Commercial Code, in any event, however, not more than the amount specified in 301 German Stock Corporation Act as amended from time to time, shall be transferred. (2) With the consent of Lenovo Germany Holding GmbH, MEDION AG may allocate parts of the annual net income to other earnings reserves ( 272 Para. 3 German Commercial Code) to the extent permitted by commercial law and economically justified by reasonable commercial judgement. Upon demand of Lenovo Germany Holding GmbH, MEDION AG shall dissolve other earnings reserves within the meaning of 272 Para. 3 German Commercial Code created during the term of this Agreement and shall use such reserves to compensate any annual net loss or to transfer them as profit. Other reserves and a profit carried forward from the time before the term of this Agreement may neither be transferred as profit nor be used to compensate an annual net loss. (3) The obligation to transfer profit applies for the first time to the entire profit of the fiscal year in which this Agreement comes into effect; should MEDION AG create a short fiscal year from 1 January 2012 until 31 March 2012, the obligation to transfer profit is, however, at the earliest, valid for the entire profit of the fiscal year starting on 1 April In case no short fiscal year will be created, the obligation to transfer profits shall apply at the earliest in any case for the entire profit of the fiscal year starting 1 January The claim to transfer of profit shall arise and become due at the end of the relating fiscal year of MEDION AG. 3 Assumption of Loss (1) Pursuant to 302 of the German Stock Corporation Act, Lenovo Germany Holding GmbH is obliged to compensate MEDION AG for each annual net loss that would otherwise arise during the term of this Agreement, to the extent that such loss is not compensated for by withdrawing amounts from the other earnings reserves that have been allocated to these reserves during the term of this Agreement. (2) The claim for compensation of losses shall arise at the end of the relevant fiscal year of MEDION AG and shall become due at this date.

3 3 (3) The obligation to compensate losses shall first apply to the fiscal year (as the case may be, short fiscal year) in which this Agreement takes effect. 4 Guaranteed Dividend (1) For term of this Agreement, Lenovo Germany Holding GmbH hereby guarantees to the outside shareholders of MEDION AG an annual guaranteed dividend. The gross guaranteed divided for each full fiscal year amounts to EUR 0,82 per share, each representing a portion of the share capital in the amount of EUR 1.00, less an amount for German corporation tax and solidarity surcharge at the tax rate applicable to these taxes for the relevant fiscal year. Taking into account the circumstances at the time of the conclusion of this Agreement, 15 % German corporation tax plus 5.5 % German solidarity surcharge thereon shall be deducted. Taking into account the circumstances at the time of the conclusion of this agreement, this results in a guaranteed dividend of EUR 0.69 per share for each full fiscal year. (2) The guaranteed dividend shall become due on the first banking day following the shareholders meeting of MEDION AG for the expired fiscal year. (3) The payment of the annual guaranteed dividend shall be granted for the first time for the fiscal year in which this Agreement takes effect. In case this Agreement comes into effect at a point in time within a fiscal year (or short fiscal year as the case may be), at which an obligation to transfer profit does not yet exist, and to the extent that the dividend paid by MEDION AG for such fiscal year (or short fiscal year as the case may be) is lower than the guaranteed dividend pursuant to 4 para. 1 (pro rata temporis), Lenovo Germany Holding GmbH will pay each shareholder of MEDION AG who is dividend-entitled for such fiscal year (or short fiscal year as the case may be), a compensation in the amount of the difference. (4) If this Agreement terminates during a fiscal year of MEDION AG, if this Agreement comes into effect within a short fiscal year lasting less than 12 months or if MEDION AG forms a short fiscal year during the term of this Agreement of less than twelve months, the guaranteed dividend shall be reduced pro rata temporis.

4 4 (5) In case that appraisal proceedings regarding the adequacy of the guaranteed dividend pursuant to the German Appraisal Proceedings Act (Spruchverfahrensgesetz SpruchG ) are initiated and the court determines a higher guaranteed dividend by a non-appealable decision, the outside shareholders shall be entitled to request a corresponding supplement to the guaranteed dividend they have received, even if they have meanwhile already received a compensation. Likewise, all outside shareholders shall be treated equally if Lenovo Germany Holding GmbH, in a settlement to avoid or settle appraisal proceedings, agrees to a higher annual guaranteed dividend vis-à-vis a shareholder of MEDION AG. (6) If MEDION AG s share capital is increased out of retained earnings against issuance of new shares to the outside shareholders, the guaranteed dividend per share shall be reduced in such a way that the total amount of the guaranteed dividend remains unchanged. (7) If MEDION AG s share capital is increased by way of a contribution in cash and/or in kind, the rights arising from this 4 shall also apply to the shares resulting from the capital increase and subscribed to by outside shareholders. 5 Compensation (Abfindung) (1) Upon request of an outside shareholder of MEDION AG, Lenovo Germany Holding GmbH shall be obliged to acquire such shareholder s shares against payment of a cash compensation of EUR per share, each representing a portion of the share capital in the amount of EUR (2) The obligation of Lenovo Germany Holding GmbH to acquire shares shall be limited in time. The time limitation period shall end two months after the date on which the registration of the existence of this Agreement in the commercial register at the registered office of MEDION AG has been announced in accordance with 10 HGB. An extension of the time limitation period pursuant to 305 para. 4 sentence 3 of the German Stock Corporation Act (Aktiengesetz) on the basis of a motion to the court to determine the adequate guaranteed dividend or the adequate compensation pursuant to the German

5 5 Appraisal Proceedings Act shall remain unaffected. In this case, the time limitation period shall expire two months after the date on which the decision on the last motion ruled on has been announced in the electronic version of the German Federal Gazette (elektronischer Bundesanzeiger). (3) The alienation of the shares shall be free of charge for shareholders of MEDION AG; any taxes of income and proceeds of the shareholder remain unaffected hereof and shall be born by the shareholder. (4) In case appraisal proceedings regarding the adequacy of the compensation pursuant to the German Appraisal Proceedings Act are initiated and the court determines a higher compensation by a non-appealable decision, the shareholders shall be entitled to request a corresponding supplement to the compensation they have received, even if they have meanwhile already received a compensation. Likewise, all outside shareholders shall be treated equally if Lenovo Germany Holding GmbH, in a settlement to avoid or settle appraisal proceedings, agrees to pay a higher compensation vis-à-vis a shareholder. (5) If, by the expiration of the time limitation period set forth in 5 para. 2 sentence 2 and 3, MEDION AG s share capital is increased out of retained earnings against issuance of new shares, the compensation per share shall be reduced in such a way that the total amount of the compensation remains unchanged. (6) If, by the expiration of the time limitation period set forth in 5 para. 2 sentence 2 and 3, MEDION AG s share capital is increased by way of a contribution in cash and/or in kind, the rights arising from this 5 shall apply also to the shares resulting from the capital increase and subscribed to by outside shareholders. 6 Effectiveness and Term (1) This Agreement requires the consent of the shareholders meetings of both MEDION AG and Lenovo Germany Holding GmbH in order to be valid.

6 6 (2) This Agreement shall take effect upon registration of its existence in the commercial register at the registered office of MEDION AG. 2 para. 3 of this Agreement remains unaffected. (3) This Agreement is entered into for an indefinite term and can be terminated in writing, by giving six months notice, at the end of a fiscal year of MEDION AG. It may be terminated for the first time with effect at the end of the fiscal year which ends five time years after the beginning of that fiscal year for which the obligation to transfer the entire profit exists for the first time according to 2. To comply with the notice period, the notice has to be received by the other party in time. (4) The right to terminate this Agreement for good cause without having to comply with a notice period shall remain unaffected. In particular, Lenovo Germany Holding GmbH shall be entitled to terminate this Agreement for good cause if it no longer holds directly or indirectly the majority of the voting rights of MEDION AG. 7 Letter of comfort and guarantee Lenovo Germany Holding GmbH is an indirect wholly-owned subsidiary of Lenovo (Singapore) Pte. Ltd., a corporation with registered office in Singapore / Republic of Singapore ("Lenovo Singapore"). Lenovo Singapore has, without entering the Agreement as a contracting party, issued a Letter of comfort. In this Letter of comfort which has been attached to this Agreement as Appendix, Lenovo Singapore undertakes vis-à-vis MEDION AG and Lenovo Germany Holding GmbH without any restrictions and irrevocably to ensure that Lenovo Germany Holding GmbH is managed and provided with financial resources in such a manner that Lenovo Germany Holding GmbH is at all times in the position to completely and timely fulfil all of its obligations under or in connection with this Agreement, and vis-à-vis MEDION AG to timely fulfil Lenovo Germany Holding GmbH s obligations under or in connection with this Agreement.

7 7 Lenovo Singapore further guarantees irrevocably and without any restrictions vis-à-vis the outside shareholders of MEDION AG that Lenovo Germany Holding GmbH will completely and timely fulfil all of the outside shareholders claims under or in connection with this Agreement, in particular those relating to the payment of the guaranteed dividend and the compensation. 8 Final Provisions If one or more provisions of this Agreement should be or become invalid or impracticable or should there be an omission in this Agreement, the validity of the remaining provisions shall not be affected thereby. The invalid or impracticable provision shall be replaced, or the omission shall be filled, by an appropriate provision that, within the framework of what is legally permissible, comes closest to what the parties to this Agreement intended or would have intended in accordance with the purpose of this Agreement if they had considered the point. Essen, 25 October 2011 Lenovo Germany Holding GmbH Colm Gleeson MEDION Aktiengesellschaft Gerd Brachmann Christian Eigen

8 Appendix: Letter of Comfort 8

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