Our lawyer Mr. Hans-Jacob Heitz submitted the following application for a special inspection to Hapimag on time:
Lawyer & 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 and 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 par value of the share capital (see also the two USB sticks in supplements 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 rights under stock corporation law according to OR Art. 697 in addition to the subject areas remaining for this special audit request also other subject areas such as outsourcing data center, cost development for IT / EDP, expensive interior fittings for resorts, construction of an administrative center, investment planning and confusing diversity of general terms and conditions for the different types of shares with a ramified, barely understandable share buyback program, which questions the board of directors answered somewhat plausibly, although 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, undisputed masses for its part Hapimag shareholder (membership number 0 235000), has more than a total of shareholder powers for the upcoming general meeting of April 25, 2018 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 expressly include the authorization to submit this request for a special audit for the 2018 AGM in the context of safeguarding statutory shareholder 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 report, which with regard to the deadlines for the enforcement of the statutory shareholder rights has always been very unusually late to submit further new questions or follow-up questions! The same questions may be raised before or at the upcoming General Assembly and may be raised to supplement special test questions.
As part of the special audit, it is important to clarify whether and if so to what extent the board of directors and / or the auditor could have violated the statutes and / or laws. Regarding auditors 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. On the special examination request 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
Equity has been declining steadily since 2005 (€ 403,4 million) (figures from the Hapimag annual reports), which was € 2015 million in 287,1 and € 2016 million in 277 . Since 2006, this means a shrinking of worrying within only 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 reasoning of the BoD that this can be explained with the share buybacks is far too short, rather there must be other hidden reasons that explain this. This already shows that there is sufficient reason for a special test.
It is strange that the discrepancy in the share capital of € 22 (956) compared to the statutory share capital of CHF 000 (Articles of Association Art. 2016); the statement made by the Board of Directors. this is due to the currency difference and obviously cannot be measured in terms of the exchange rates.
The loss in value of the Hapimag Share that was € 2004 in 3 but only € 300 in 2014. At the 1 AGM, the Chairman of the Board of Directors noted that the loss suffered by Hapimag AG would be redeemed 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 have the reserves developed in the past 5 years? Has the Hapimagstill over 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 Group of companies ”with rudimentary annual accounts and annual report on 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 in no way plausible, will be voted on under item 2 only on the use of the annual results of Hapimag AG - according to records losses in the double-digit range for years! - but not on their invoice and balance sheet, - although the shareholders of Hapimag AG hold their shares (sic!), - to have a resolution passed.
In line with the requirements of balance sheet clarity and truth, the shareholders have the right to receive invoices that are as understandable as they are understandable. 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 through the so-called group accounts de facto with a formal vote at the AGM in one swipe to the group accounts and 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 do you explain in detail the contradicting annual results of the consolidated financial statements with always positive annual results here and always big losses at 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 the case that the so-called consolidated accounts contribute to the actually true annual results (pm losses in the double-digit millions) 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 return; there are too many curiosities that have not yet been plausibly explained. These are in particular 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 handled the sale / purchase at the previously listed resorts? 3.2. What are the correct detailed billing results for each resort sold? 3.3. What kind of price (for example, book value?) Calculated according to what criteria formed the basis for the sale or the determination of the sales price per resort? 3.4. According to the board of directors Scholl independent valuation reports are said to have been prepared. Who created these, which values were determined for each resort using which valuation method? Can the possible appraisals be viewed? 3.5. How were the two previously purchased resorts financed? According to which criteria was the purchase price determined? 3.6. What is the budget and billing for the new resort?Cavallino "? Have the budgeted construction costs been met? 3.7. How does it explain that when from Hapimag for beide Houses sold at € 5 million resort "Pulpit height "one of the two houses for about a week before the contractually certified sale by the buyer AGK GmbH notarized on file for € 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 Infinity Gerl GmbH? Who benefited from the blatant difference between selling and reselling prices? 3.9. How is the resort sold?Chamonix“The blatant difference between the sales price of around € 20 million and the resale proceeds from the buyer of an average of € 250 / apartment, corresponding to a total of around € 000 million? 3.10. What about the real occupancy of each of the individual resorts? Does the operating result per resort cover costs? Are there any expensive renovations? 3.11. Did the aforementioned resort sales have an impact on 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 that the board of directors will, with the invitation to the 2018 AGM, as required by law (OR Art. 699 (3) in vrb. With OR Art. 700 (2)) put the request for a special item on the agenda (to be provided on the form for the independent proxy!) and all shareholders correctly via the special audit application with all relevant facts and questions as formulated above (e.g. by Appendix for invitation)! Consequently, all of this is also on the website of Hapimag to be published under the title of the 2018 Annual General Meeting and thus to make it 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.
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The undersigned is available to answer any questions you may have at the telephone number shown in the letterhead.