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VII. S-Division

 

Article 31   Allocation to the S Division

(1)  The S division comprises all business assets and liabilities of the company which are required or specified for the acquisition, maintenance, sale, leasing, management and development of properties not specific to port handling (buildings and other structures and facilities firmly connected to the ground, which, in their intended use, are not wholly or predominantly used for the purposes of transport and logistics, particularly in the fields of seaport ­traffic management and hinterland traffic or the fields of additive manufacturing and information technology, as well as related fields), as well as all related business activities (including ancillary business and auxiliary transactions) and other measures, regardless of whether the company is active itself in this respect or through its subsidiaries or associated companies.

(2)  In accordance with the criteria contained in paragraph 1, the S division includes (i) all assets, accrued and deferred items, and debts to be assigned to the S division on 1 January 2007, 00.00 hours (the “key date”) in accordance with German commercial law, including all benefits and encumbrances from the key date onwards and all additions and disposals in the ordinary course of business (the “business assets”) and (ii) all the contractual and other legal relationships of any kind to be allocated to the S division on the key date, together with all rights and duties in each case and regardless of whether or not they are reported in the balance sheet (the “contractual and other legal relationships”), particularly:

a)  the property, plant and equipment belonging to the S division, including the individually held property in the following buildings of the historical Speicherstadt warehouse district: Block X (Brooktorkai 3–10), Block V (Brooktorkai 11–16 / Dienerreihe 3), Block O 1–3 (Am Sandtorkai 1–3), Block O 4 and 5 (Am Sandtorkai 4 and 5), Block O 6–8 (parking garage; Am Sandtorkai 6–8), Block N (Am Sandtorkai 23–24), Block M 25–28 (Am Sandtorkai 25–28), Block M 28a (Am Sandtorkai 28a), Kesselhaus (Am Sandtorkai 30), Block L (Am Sandtorkai 31–36a), Block W 4–7 (Alter Wandrahm 4–7 / Poggenmühle 3), Block W 8–11 (Alter Wandrahm 8–11 / Dienerreihe 2), Block P (Neuer Wandrahm 1–4), Kaffeebörse (Block G 3; Pickhuben 3), Block H (Brook 1 and 2 / Pickhuben 2, 4 and 6), Block G 5 (Pickhuben 5), Block G 7, 9 (Pickhuben 7 and 9), Block E (Brook 3–9 / Auf dem Sande 1a), Block Q (St. Annenufer 4–6 / Kannengießerort 7), Block R (St. Annenufer 2–3) and customs buildings (Neuer Wandrahm / Kornhausbrücke) which occupy an area in the Altstadt-Süd district and all leasing agreements for the aforementioned buildings and associated land areas;

b)  all the financial assets attributable to the S division including the participations in GHL Gesellschaft für Hafen- und Lagereiimmobilien-Verwaltung Block T GmbH, GHL Gesellschaft für Hafen- und Lagereiimmobilien-Verwaltung Block D GmbH, GHL Gesellschaft für Hafen- und Lagereiimmobilien-Verwaltung Bei St. Annen GmbH and Fischmarkt Hamburg-Altona GmbH (“FMH”), in each case with the right to a share in profits for all financial years starting on or after the key date, including any subsidiaries and associated companies of these companies. The participations in the aforementioned companies and the business activity, assets, and equity and liabilities of these companies must be assigned to the S division even if they do not completely fulfil the criteria stipulated in Paragraph 1 for allocation to the S division; this shall apply in particular to the fishing industry and warehousing activities of FMH and all activities of FMH in connection with the cultivation of the area around Edgar-Engelhard-Kai.

(3)  When the individual divisional financial statements for the S division are prepared for the first time, the S division must be allocated a proportion of all the company’s equity items corresponding to the ratio of class S shares to class A shares (cf. Article 3, Paragraph 2). The opening divisional balance sheet of the S division to be prepared as of the key date must carry as an equalization liability against the A division an amount equal to the difference between the equity thus defined and the debts to be allocated to the S division in accordance with Paragraph 2 on the one hand, and the assets to be allocated to the S division in accordance with Paragraph 2 on the other.

(4)  All acquisitions, disposals, and other dispositions concerning the business assets of the company and its subsidiaries and associated companies, the establishment or termination or cancellation of contractual or other legal relationships by the company and/or its subsidiaries or associated companies and the implementation of other measures after the key date must likewise be allocated to the S division if they (i) relate to the business assets and contractual and other legal relationships to be allocated to the S division, (ii) are implemented by one of the subsidiaries listed in paragraph 2 (b) or their subsidiaries or associated companies or (iii) must otherwise be allocated to the S division in accordance with the criteria laid down in paragraph 1.

(5)  All income and expenses of the company and its subsidiaries and associated companies after the key date which relate to business assets and contractual and other legal relationships to be allocated to the S division, in particular all the business activity of the subsidiaries listed in paragraph 2, sentence 2 (b) must be allocated to the S division.
 

Article 32   Right to Information

(1)  The Executive Board must immediately provide every holder of class S shares who is legally or contractually obliged to compensate for a net loss for the year which would otherwise be generated by the S division with information on the company’s affairs and those of its direct and indirect subsidiaries and associated companies, also outside of the General Meeting on request, and to issue copies of account books, writings and other documentation, if the request for information or documentation relates to the S division or the relationship of the S division with the A division.

(2)  The information must comply with the principles of diligent and accurate accountability.

(3)  Section 93 (1) sentence 3 of the AktG shall remain unaffected.