Our lawyer Mr. Hans-Jacob Heitz submitted the following application for a special inspection to Hapimag on time:
Advocate & Mediator SAV
Master of Law UZH
a Federal Administrative Judge
Tel: + 41 (0) 43 499 99 33
To the Board of Directors of Hapimag AG
Neuhofstrasse 8, 6340 Baar
Dear Mr. Dr. Fontana
Dear members of the Board of Directors
With regard to and for the General assembly of April 25, 2018 I will hand you over on time (Hapimag Articles of Association Art. 11 Paragraph 3) based on
OR Art. 660 ff., 689 para. 2, Art. 697 & Art. 697a as well as the
Hapimag-Statuten Art. 11 Para. 3 & Art. 12
the powers of attorney available to you with an updated power of attorney dated January 31.01.2018, XNUMX
für die Agenda of the General Meeting Invitation to Hapimag General Assembly of April 25, 2018 the following of more than CHF 1,7 million nominal value of the share capital (see the two USB sticks in Enclosures 1a & 1b)
Application for special examination
I. Introductory Preliminary Remarks
Before submitting this special examination request, the Hapimag-Shareholders within the scope of their right to information and inspection under stock corporation law according to OR Art. 697, in addition to the subject areas remaining for this special audit application, also other areas such as outsourcing data centers, cost development in IT / EDP, expensive interior fittings at resorts, building an administrative center, investment planning and confusing diversity from general terms and conditions to the various types of shares with ramified, barely understandable share buyback programs asks which questions were answered by the board of directors in a reasonably plausible manner, even if not in all points according to our ideas, which is expressly recognized.
Nevertheless, the following remain partially but repeatedly unsuccessful, be it at general meetings (GV) and / or by subjecting the right to information and inspection to questions in writing / subject matters, whereby the same subject matters of a fundamental nature with the risk of uncontrolled cost consequences acts. In this regard, instead of using transparent, clear and appropriate information, the shareholders were covered with non-verifiable, contradictory and sometimes record-based claims or figures (including sign errors). This remaining lack of transparency with regard to these remaining subject areas / facts meant that shareholders were improperly / illegally restricted in exercising their shareholder rights to which they were entitled by law (OR Art. 660 ff.).
The undersigned, himself a shareholder with all shareholder rights (membership number 502776),
represented HFA Hapimag holiday club for shareholders, A-2333 Leopoldsdorf, an undisputed Hapimag shareholder (membership number 0 235000), has more than a total of more than 1.7 million nominal capital votes (Shares with a nominal value of CHF 100 or CHF 200), whereby all of these individual powers of attorney also expressly include the authorization to submit this application for a special audit for the 2018 AGM within the scope of safeguarding the statutory shareholders' rights.
It should also be pointed out that the powers of attorney granted to the HFA expressly state that Law of the HFA Substitutionhow this is done to the undersigned as a Hapimag shareholder (new power of attorney in Appendix 2).
The Powers of Attorney are in electronic form on the two attached here USB sticks detected; Should paperwork of the powers of attorney be requested, which would be anything but plausible against the background of e-voting, these forms could be sent to upon explicit request no later than 16. February 2018 subsequently submitted / presented in paper form. If this request is not made within a period of time, we assume what we expect that the powers of attorney presented in electronic form (USB stick) will be accepted.
In any case, the legal requirements for the admissibility of the application for a special audit have been clearly established; this must be followed by the Board of Directors, ie it must be included in the invitation (OR Art. 700 Para. 2), especially since the application by shareholders who have a nominal capital of significantly more than CHF 1 million (OR Art. 699 (3)).
Of course, we must expressly reserve the right to: Publication of the 2017 annual reportwhich, in view of the deadlines for enforcing the statutory shareholders' rights, has always been extremely late anyway, to submit further new questions or follow-up questions! The same questions may be presented before or at the upcoming General Assembly and, if necessary, raised in addition to this submission on special audit questions.
As part of the special audit, it is necessary to clarify whether and, if so, to what extent the board of directors and / or the auditors may have violated the statutes and / or laws. Regarding the auditor KPMGbe reminded that she was not ready to answer the questions submitted to her. The applicants limit their special audit request to those matters with corresponding questions which, in our opinion, have not been answered plausibly by the Board of Directors due to the right to information and inspection previously exercised, or which could still be answered with regard to further questions about the 2017 Annual Report. The other issues mentioned above, which were explained quite plausibly, are therefore not the subject of the special examination request.
Finally, it should be remembered that a special test is very good confidence-building measure may be in the interest of the company. It would do no harm if a subsequent special test questions could be answered by an independent test.
II. To the special examination application with the relevant facts & questions
It is the requested special test for the following Facts the durchzuführ:
First special audit situation:
Development of the balanced equity (EK) / share value and reserves
Since 2005 (EK € 403,4 million), equity has been declining steadily (figures from the Hapimag annual reports), which was € 2015 million in 287,1 and only € 2016 million in 277 . Since 2006 this has meant a shrinkage of questionable numbers within only around 10 years € 126,4 million. correspondingly frightening a good 31% or an average of an incredible annual round € 11.5 millioncorrespondingly just under 3%; The reasons given by the Board of Directors, according to which this is explained by the share buybacks, falls far too short; there must be other hidden reasons that explain this. This means that there is already enough reason for a special test.
The discrepancy between the reported share capital of € 22 (956) compared to the statutory share capital of CHF 000 (Articles of Association Art. 2016) is also strange; the statement made by the Board of Directors was. this is due to the currency difference and obviously cannot apply in terms of the exchange rates.
The loss in value of the Hapimag Share, which was € 2004 in 3 but only € 300 in 2014. At the 1 AGM, the Chairman of the Board of Directors stated that the loss suffered at Hapimag AG would be repaid from the reserves.
1.1. What are the real reasons for the blatant contraction in equity? 1.2. What is the correct explanation for the obviously implausible difference between
recognized share capital and share capital according to the Articles of Association? 1.3How is the substantial loss in value of the Hapimag Shares? 1.4.Where is the real value of the Hapimag Share today? How does it develop? 1.5. How did the reserves develop over the past 5 years? Has the Hapimagstill have financial reserves? If so, to what extent?
Second special audit issue:
It should be noted in advance that the shareholders of the Hapimag AG (Mother) a "consolidated financial statement" is presented, whereby the so-called "group" is not a legal person at all!
Although the Hapimag Shareholders at the Hapimag AG are always a detailed so-called "Consolidated Financial Statements" to the "Hapimag Corporate group "with rudimentary annual accounts and annual report for Hapimag AG (Annual Report 2016, pages 50 ff.) And subsequently voted on at the General Assembly, ie not separately.
The invoicing for Hapimag AG (Parent company) always happens almost casually as in 2017 on only 7 of a total of 59 pages, although the Hapimag AG has regularly reported substantial losses for years, such as 2016 by ./. CHF 17 (see Annual Report 277 on page 994).
The actual substantial losses are therefore not clearly visible to the shareholders and are understandable. The only thing that is clear is the steady decline in equity. Significantly, that is Hapimag AG in the annual review (Annual Report 2016 pages 4f.) because not a single word worthy.
Oddly enough, as at the 2017 AGM (again) for the time being under agenda item 1 on the consolidated financial statements with profits, which in view of the steady decline in equity and the annual steep losses at the parent company Hapimag AG is by no means plausible, a vote will be taken, so that afterwards under agenda item 2 only the use of the annual results of Hapimag AG - losses in the double-digit range on records for years! - but not via their invoice and balance sheet, - although the shareholders of Hapimag AG hold their shares (sic!), - to have a resolution passed.
In keeping with the principles of balance sheet clarity and truth, shareholders are entitled to an understandable and comprehensible invoice. This is at Hapimag not given.
The unchecked losses when Hapimag AG cumulatively, since 2010, they have been extremely worrying CHF 301 million ie on average "proud" CHF 43 million / year!
2.1. Is the invoicing by the so-called group accounts also de facto in a wipe-up to the group accounts and the Hapimag AG compliant with the law? 2.2. Is the reconciliation procedure with the first agenda item for the consolidated financial statements and the subsequent agenda item only for the use of the annual result, not for the annual accounts with the parent company's balance sheet Hapimag AG compliant with the law? 2.3. How can one plausibly explain the contradicting annual results of the consolidated financial statements with always positive annual results here and always large losses in the Hapimag AG as mother house there?2.4. How, where and by what within the group, the substantial losses that have been incurred for years Hapimag AG in the tens of millions? 2.5. Is it in accordance with the law that the shareholders receive the annual accounts of the Hapimag AG did a total of 25 associated companies plus one association (Annual Report 2016, page 46) not be disclosed? 2.6. Does the investment practice practiced by the Board of Directors satisfy the principles of balance sheet clarity and balance sheet truth? 2.7. Is it not true that the so-called consolidated financial statements show the actual annual results (pm losses in the double-digit million range Hapimag AG) are displayed beautifully? 2.8. Is it lawful for the auditors to report in their audit reports on Hapimag AG that the unchecked over the years substantial losses in the two-digit millions each in your reports not worthy of a revision comment?
Third special audit issue:
Oddities in resort sales / purchases
The documented fact that the board of directors provided us with incorrect numbers and wrong signs when exercising the right to information under stock corporation seems more than strange. The Board of Directors has lost its credibility towards us regarding the resort sales / acquisitions, but has now also lost its credibility objectively. The framework of the answers received on the basis of the information right exercised was not plausible because it was incorrect and contradictory.
It is about the non-transparent sale or purchase of various resorts as well as the question of their yield; there are too many peculiarities that have not yet been explained plausibly. In particular, it concerns the following exits / additions:
Resort Lido di Jesolo (I) Marrakech (Mar)
Resort Lido di Pomposa (I) Cavallino (I)
Bordighera Resort (I)
Resort Chamonix (F)
Resort Kanzelhöhe (A)
Resort Bad Kirchheim (A)
Resort Sörenberg (CH)
3.1. Who by name Hapimag did the sale / purchase at the previously listed resorts? 3.2. What are the correct detailed accounting results for each resort sold? 3.3. What kind of price (about book value?) Calculated according to what criteria formed the basis for the sale or the determination of the sales price for each resort? 3.4. According to the Board of Directors Scholl independent appraisals are said to have been prepared. Who created this, which values were determined according to which evaluation method for each resort? Can any appraisals be viewed? 3.5. How were the two previously listed resorts financed? What were the criteria for determining the purchase price? 3.6. What is the budget and billing for the new resort?Cavallino "? Have the budgeted construction costs been met? 3.7. How can it be explained that the Hapimag for beide Houses sold at € 5 million resort "Pulpit height "one of the two houses for about a week and before the contractually certified sale by the buyer AGK GmbH notarized to € 4,5 million to the Infinity Gerl GmbH had been resold? 3.8. Why did Hapimag, whose Board of Directors had to be aware of the resale, not sell directly to the Infinity Gerl GmbH? Who benefited from the blatant difference between the sales and resale prices? 3.9. How is the resort sold?Chamonix“The blatant difference between the sales price of around € 20 million and the resale proceeds achieved by the buyer of an average of € 250 per apartment, corresponding to a total of around € 000 million? 3.10. What about the true occupancy of each of the individual resorts? Are the operating earnings per resort cost-covering? Are there any expensive renovations to be made here? 3.11. Did the aforementioned resort sales affect the development of equity, if so to what extent? What does this mean for the share capital and the value or performance of the Hapimag Shares)?
III. Concluding remarks / quintessence
We expect the Board of Directors to put the special audit request on the agenda with the invitation to the 2018 AGM, as required by law (OR Art. 699 Paragraph 3 in Vrb the independent proxy!) and correctly informs all shareholders about the special audit application with all the relevant facts and questions as formulated above (e.g. through Appendix for invitation)! Consequently, all of this is also on the website of Hapimag under the title of the 2018 Annual General Meeting and thus also made electronically visible to all shareholders (pm e-voting).
It is of course dependent on whether the Board of Directors at the General Meeting of Shareholders creates clarity and transparency in such a way that the request for special audits or parts thereof may be unnecessary, otherwise a lawsuit to the court would be inevitable, for which the necessary shareholder votes should already be available today (OR Art. 697b Paragraph 1).
It should be recalled that a special audit can be considered a confidence-building measure, so that it is also in the company's interest, especially since the strikingly long exercise of the audit mandate KPMG is highly problematic and by no means confidence-building.
As mentioned at the beginning, we reserve the right to postpone further issues and questions regarding the availability of the 2017 annual report, for which the shareholders are in any case legitimized.
* * * * *
The undersigned is available to answer any questions you may have at the telephone number shown in the letterhead.