Asml Holding NV 6-K, filed Mar 15, 2022
Asml Holding NV (ASML)
About this 6-K
Asml Holding NV filed this 6-K on March 15, 2022.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
OF THE SECURITIES EXCHANGE ACT OF 1934
For March 15, 2022
Commission File Number 001-33463
ASML Holding N.V.
De Run 6501
5504 DR Veldhoven
The Netherlands
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
Indicate by check mark if the registrant is submitting the Form 6-K on paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark if the registrant is submitting the Form 6-K on paper as permitted by Regulation S-T Rule 101(b)(7): ☐
EXHIBIT 99.1 TO THIS REPORT ON FORM 6-K IS INCORPORATED BY REFERENCE IN THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-116337), THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-126340), THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-136362), THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-141125), THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-142254), THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-144356), THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-147128), THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-153277), THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-162439), THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-170034), THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-188938), THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-190023), THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-192951), THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-203390), THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-219442) AND THE REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-227464) OF ASML HOLDING N.V. AND IN THE OUTSTANDING PROSPECTUSES CONTAINED IN SUCH REGISTRATION STATEMENTS.
Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| ASML HOLDING N.V. (Registrant) | ||||||
| Date: March 15, 2022 |
By: |
/s/ Peter T.F.M. Wennink | ||||
| Peter T.F.M. Wennink | ||||||
| Chief Executive Officer | ||||||
ASML publishes agenda Annual General Meeting 2022
Reappointment of Board of Management members and changes in Supervisory Board announced
VELDHOVEN, the Netherlands, March 15, 2022—ASML Holding NV (ASML) today publishes the agenda and the explanatory notes for the Annual General Meeting (AGM), which will be held on Friday, April 29, 2022, starting at 14:00 CET. The agenda with the explanatory notes and other meeting documents are available at www.asml.com/agm2022.
Reappointment of Board of Management members
ASML also announces that, subject to the notification of the General Meeting on April 29, 2022, its Supervisory Board intends to reappoint the five members of ASML’s Board of Management, whose terms are set to expire per the 2022 AGM.
The Supervisory Board intends to reappoint Peter Wennink as President and Chief Executive Officer and Martin van den Brink as President and Chief Technology Officer of the Board of Management. In accordance with the new rules of procedure for the Board of Management, the Presidents’ reappointment will be for a two-year term.
The Supervisory Board intends to reappoint Roger Dassen as Executive Vice President (EVP) and Chief Financial Officer, Christophe Fouquet as EVP EUV and Frédéric Schneider-Maunoury as EVP and Chief Operations Officer for a four-year term.
“We are very pleased that the members of the Board of Management are willing to continue to fulfill their current leadership roles. We have a strong team in place, which will provide stability to execute our long-term strategy and deliver stakeholder value in a period of significant growth for the company,” said Gerard Kleisterlee, Chairman of the Supervisory Board.
Changes in Supervisory Board
The current terms of Hans Stork and Terri Kelly will end per the AGM 2022. Hans Stork will step down after the AGM 2022 after having completed two terms. The Supervisory Board extends its thanks to him for his valuable contribution over the past eight years, and wishes him all the best for the future.
The Supervisory Board intends to nominate Terri Kelly for reappointment as member of the Supervisory Board effective from the 2022 AGM. She was first appointed in 2018 and has been a highly valued member of the Supervisory Board. Terri Kelly also is the Chairperson of the Remuneration Committee and a member of the Selection and Nomination Committee.
In addition, the Supervisory Board intends to nominate Alexander Everke and An Steegen for appointment as new members of the Supervisory Board, effective from the 2022 AGM. Alexander Everke is currently CEO of ams OSRAM. He has extensive general management and semiconductor experience having fulfilled leadership roles at Siemens, Infineon and NXP Semiconductors. An Steegen is currently co-CEO and a member of the Board of Directors of Barco N.V. She has extensive semiconductor experience, having worked at IBM, research institute imec and Umicore. The Supervisory Board expects that Alexander Everke and An Steegen will be valuable contributors to the Supervisory Board, given their background and experience.
The nominations of Terri Kelly and An Steegen have been proposed by the ASML Netherlands BV Works Council, based on its enhanced recommendation right.
With the retirement of Hans Stork and provided that Terri Kelly, Alexander Everke and An Steegen will be (re)appointed, ASML’s Supervisory Board will consist of nine members, effective from the AGM 2022.
Public
| Media Relations contacts | Investor Relations contacts | |
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| Ryan Young +1 480 205 8659 | Marcel Kemp +31 40 268 6494 | |
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About ASML
ASML is a leading supplier to the semiconductor industry. The company provides chipmakers with hardware, software and services to mass produce the patterns of integrated circuits (microchips). Together with its partners, ASML drives the advancement of more affordable, more powerful, more energy-efficient microchips. ASML enables groundbreaking technology to solve some of humanity’s toughest challenges, such as in healthcare, energy use and conservation, mobility and agriculture. ASML is a multinational company headquartered in Veldhoven, the Netherlands, with offices across Europe, the US and Asia. Every day, ASML’s more than 32,000 employees (FTE) challenge the status quo and push technology to new limits. ASML is traded on Euronext Amsterdam and NASDAQ under the symbol ASML. Discover ASML – our products, technology and career opportunities – at www.asml.com.
Forward Looking Statements
This press release and presentations referred to herein contain statements that are forward-looking, including statements with respect to planned director retirements, appointments and nominations. These statements are not historical facts, but rather are based on current expectations, estimates, assumptions and projections about our business and our future financial results and readers should not place undue reliance on them. Forward-looking statements do not guarantee future performance and involve risks and uncertainties. These risks and uncertainties include the results of our AGM and other risks indicated in the risk factors included in ASML’s Annual Report on Form 20-F for the year ended December 31, 2021 and other filings with and submissions to the US Securities and Exchange Commission. These forward-looking statements are made only as of the date of this document. We undertake no obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise.
Public
Exhibit 99.2
Notice Annual General Meeting 2022 of ASML Holding N.V.
Notice to attend the Annual General Meeting of ASML Holding N.V. (“ASML”) to be held at the Auditorium, ASML Building 7, De Run 6665, Veldhoven, the Netherlands, on Friday 29 April 2022, starting at 2.00 pm CET (the “AGM”).
In addition to attending the AGM in person, considering the continuing circumstances regarding Covid-19 and to protect the health and safety of all participants, shareholders are offered the possibility to follow the AGM virtually, to vote virtually and to ask written questions during the meeting as well as before the AGM. If required, ASML may change the meeting to a fully virtual meeting. Such changes will be communicated to the shareholders on the AGM website of ASML (www.asml.com/agm2022). Further information regarding (virtual) attendance and voting can be found below under ‘Registration, attendance and voting’.
Agenda
| 1. | Opening | Non-voting | ||
| 2. | Overview of the Company’s business, financial situation and sustainability | Non-voting | ||
| 3. | Financial statements, results and dividend | |||
| a) Advisory vote on the remuneration report for the Board of Management and the Supervisory Board for the financial year 2021 |
Voting item | |||
| b) Proposal to adopt the financial statements of the Company for the financial year 2021, as prepared in accordance with Dutch law |
Voting item | |||
| c) Clarification of the Company’s reserves and dividend policy |
Non-voting | |||
| d) Proposal to adopt a dividend in respect of the financial year 2021 |
Voting item | |||
| 4. | Discharge | Voting items | ||
| a) Proposal to discharge the members of the Board of Management from liability for their responsibilities in the financial year 2021 |
||||
| b) Proposal to discharge the members of the Supervisory Board from liability for their responsibilities in the financial year 2021 |
||||
| 5. | Proposal to approve the number of shares for the Board of Management | Voting item | ||
| 6. | Proposal to amend the Remuneration Policy for the Board of Management | Voting item | ||
| 7. | Composition of the Board of Management | Non-voting | ||
| a) Notification of the intended reappointment of Mr. P.T.F.M. Wennink |
||||
| b) Notification of the intended reappointment of Mr. M.A. van den Brink |
||||
| c) Notification of the intended reappointment of Mr. F.J.M. Schneider-Maunoury
d) Notification of the intended reappointment of Mr. C.D. Fouquet
e) Notification of the intended reappointment of Mr. R.J.M. Dassen |
||||
| Notice ASML AGM 2022 | 1 | Public |
| 8. | Composition of the Supervisory Board | |||
| a) Notification of Supervisory Board vacancies |
Non-voting | |||
| b) Opportunity to make recommendations by the General Meeting |
Non-voting | |||
| c) Announcement of the Supervisory Board’s recommendation to reappoint Ms. T.L. Kelly and appoint Mr. A.F.M. Everke and Ms. A.L. Steegen as members of the Supervisory Board |
Non-voting | |||
| d) Proposal to reappoint Ms. T.L. Kelly as a member of the Supervisory Board |
Voting item | |||
| e) Proposal to appoint Mr. A.F.M. Everke as a member of the Supervisory Board |
Voting item | |||
| f) Proposal to appoint Ms. A.L. Steegen as a member of the Supervisory Board |
Voting item | |||
| g) Composition of the Supervisory Board in 2023 |
Non-voting | |||
| 9. | Proposal to appoint KPMG Accountants N.V. as external auditor for the reporting years 2023 and 2024 | Voting item | ||
| 10. | Proposal to appoint Deloitte Accountants B.V. as external auditor for the reporting year 2025, in light of the mandatory external auditor rotation | Voting item | ||
| 11. | Proposal to amend the Articles of Association of the Company | Voting item | ||
| 12. | Proposals to authorize the Board of Management to issue ordinary shares or grant rights to subscribe for ordinary shares, as well as to restrict or exclude the pre- emption rights accruing to shareholders: | Voting items | ||
| a) Authorization to issue ordinary shares or grant rights to subscribe for ordinary shares up to 5% for general purposes and up to 5% in connection with or on the occasion of mergers, acquisitions and/or (strategic) alliances |
||||
| b) Authorization of the Board of Management to restrict or exclude pre-emption rights in connection with the authorizations referred to in item 12 a) |
||||
| 13. | Proposal to authorize the Board of Management to repurchase ordinary shares up to 10% of the issued share capital | Voting item | ||
| 14. | Proposal to cancel ordinary shares | Voting item | ||
| 15. | Any other business | Non-voting | ||
| 16. | Closing | Non-voting | ||
Meeting documents
The agenda including explanatory notes, the annual report 2021 including the financial statements 2021 in accordance with statutory law (including explanation), the remuneration report 2021, the proposed remuneration policy for the Board of Management including the rationale, the proposal to amend the Articles of Association as well as any other meeting documents (the “AGM Documents”) are available upon request and free of charge at the office of ASML (ASML Holding N.V., Legal Department, De Run 6501, 5504 DR Veldhoven, telephone (+31)(0)40-2682801, email: legal@asml.com) or via www.asml.com/agm2022. Electronic copies of these documents can also be obtained via ABN AMRO Bank, email: AVA@nl.abnamro.com or www.abnamro.com/evoting. The AGM Documents are available in the English language. Only where required by law, Dutch language versions are available.
| Notice ASML AGM 2022 | 2 | Public |
Record date
In accordance with the statutory provisions, eligible meeting participants and persons entitled to vote at the AGM are those persons who on Friday 1 April 2022 (the “ Record Date”), after processing of all entries and deletions as of that date, are recorded in a (sub-)register designated by the Board of Management, and are registered in the manner outlined under ‘Registration, (virtual) attendance and voting’.
Changes in shareholdings after the Registration Date have no further influence as far as entitlement to vote is concerned: only shares owned and settled on the Registration Date are entitled to be voted on at the AGM. Pursuant to the provisions of Dutch law, all ASML shares are also freely tradable after the Registration Date, and there is no share blocking associated with the AGM.
Registration, attendance and voting
Holders of shares traded on Euronext in Amsterdam (“Euronext Amsterdam”)
For holders of shares traded on Euronext Amsterdam the Board of Management has designated as register or sub-registers the records of the intermediaries of Euroclear Nederland.
Registration
Holders of shares traded on Euronext Amsterdam who wish to attend the AGM virtually, in person or by proxy must notify ABN AMRO Bank N.V. (“ABN AMRO”), through their bank or broker, that they wish to attend the AGM. Shareholders may also register for the AGM via www.abnamro.com/evoting. Registration requests may be submitted in the period starting Saturday, 2 April 2022 until and including Friday 22 April 2022, 5.30 pm CET.
No later than Monday 25 April 2022, 1.00 pm CET the intermediaries must provide ABN AMRO via www.abnamro.com/intermediary with an electronic statement containing the number of shares held by the respective shareholders on Friday 1 April 2022 (the “Registration Date”) and for which number of shares registration for the AGM is requested.
Admission to the AGM
Shareholders who wish to attend the AGM in person will subsequently receive a confirmation of registration, including registration number, by email or regular mail. The registration number will give shareholders entrance to the AGM. Shareholders or their proxies who do not receive the registration number in time, will be requested to identify themselves by means of a valid identification document prior to the AGM. Also in the event a shareholder or the proxy received the registration number in time, they may be requested to identify themselves by means of a valid identification document prior to the AGM.
Voting
Shareholders who wish to attend the AGM in person are requested to vote electronically by using their own electronical device (smartphone and tablet). In addition, ASML has voting devices available in case shareholders do not wish to use their own electronical device.
| Notice ASML AGM 2022 | 3 | Public |
Virtual attendance and virtual voting
Shareholders who wish to attend the AGM as virtual attendees through the online platform can log in at www.abnamro.com/evoting using their user account and password. If a shareholder is a new user and does not yet have a user account and password, he/she can create a user account and password at www.abnamro.com/evoting. Further instructions for logging in and creating a new user account and password can be found at www.abnamro.com/evoting.
Shareholders who have registered for virtual attendance of the AGM will receive a confirmation of registration by email which will contain an unique link. Via this link the respective shareholder can log in to the online platform of the AGM by means of a two-factor verification process (with SMS verification).
Shareholders may log into the online platform of the AGM on Friday 29 April 2022 from 1.00 pm CET until the start of the AGM at 2.00 pm CET. Shareholders who have not logged on before the start of the AGM via the online platform cannot vote and can only see, hear or otherwise follow the proceedings. The time when the voting on the voting items of the AGM will start, will be determined in accordance with the provisions of ASML’s Terms and Conditions for Hybrid General Meetings.
Shareholders will be able to vote electronically using their smartphone, tablet, laptop or PC during the AGM on the online platform at www.abnamro.com/evoting. This only applies in so far as the intermediary of the Shareholder makes online voting possible.
ASML’s Terms and Conditions for Hybrid General Meetings apply to shareholders who wish to take part in the AGM through the online platform respectively attend the AGM in person. More information about in person and virtual participation in the AGM can be found in ASML’s Terms and Conditions for Hybrid General Meetings. These conditions are available at www.asml.com/agm2022. To be certain that a device is compatible, we recommend shareholders to verify this before deciding whether to attend the AGM in a fully virtual capacity. We also recommend that shareholders who choose to attend the AGM and/or vote virtually through the online platform log into the online platform at least 15 minutes before the starting time of the AGM.
Shareholders who wish to attend the AGM in a virtual capacity face certain risks (as described in more detail in ASML’s Terms and Conditions for Hybrid General Meetings). If a shareholder wishes to avoid such risks, he or she should appoint a voting proxy or attend the AGM in person.
The intermediaries are requested to provide the valid email address, securities account and mobile phone number for shareholders who wish to attend the AGM in a virtual capacity through the online platform for authentication purposes in order for these shareholders to gain admission to the AGM.
Voting by proxy
Shareholders who do not wish to attend the AGM virtually nor in person and/or do not wish to vote virtually nor in person during the AGM, may grant a proxy to civil-law notary
| Notice ASML AGM 2022 | 4 | Public |
Ms. C. Hagendijk (or her substitute), and instruct her to vote at the AGM on their behalf. In order to vote by proxy, shareholders must have registered their shares as described above.
Shareholders can submit their voting instructions online via www.abnamro.com/evoting until and including Friday, 22 April 2021, 5.30 pm CET.
Shareholders who are unable to submit voting instructions through the internet may grant a written proxy to civil-law notary Ms. C. Hagendijk (or her substitute) by using a voting instruction form which is available at www.asml.com/agm2022 or which can be obtained in electronic form upon request at ABN AMRO via email: AVA@nl.abnamro.com. In order to vote by proxy shareholders must have registered their shares as described above. After completion and signing the voting instruction form should be sent by email to AVA@nl.abnamro.com or by regular mail to ABN AMRO Bank N.V., Corporate Broking, HQ 7212, Gustav Mahlerlaan 10, 1082 PP Amsterdam, the Netherlands, where it should be received no later than Friday, 22 April 2021, 5.30 pm CET.
Holders of shares traded on Nasdaq Stock Market LLC(“Nasdaq”)
For holders of shares traded on Nasdaq (“NY Shareholders”), the Board of Management has designated as register the Shareholders’ Register kept at New York by JPMorgan Chase Bank, N.A. (“JPMorgan”).
NY Shareholders who are registered on Friday 1 April 2022 at 5.00 pm EST, after processing of all settlements and wish to vote must notify JPMorgan, P.O. Box 64506, St. Paul, MN 55164-0506, U.S.A or through their bank or broker—no later than Thursday 21 April 2022, 12.00 pm EST, after processing of all settlements and who wish to attend the AGM must notify JPMorgan, P.O. Box 64506, St. Paul, MN 55164-0506, U.S.A—directly on telephone 800-990-1135 (from the US) or +1-651-453-2128 (from outside the US) or through their bank or broker—no later than Thursday 21 April 2022, 12.00 pm EST.
NY Shareholders who do not wish to attend the meeting in person may vote by means of a proxy card. The proxy card should be received by JPMorgan at the address mentioned above no later than Thursday 21 April 2022, 12.00 pm EST. JPMorgan will forward the proxy cards to the Company on the NY Shareholders’ behalf; in case the name of the proxy is left blank, the Company shall designate the Deputy Company Secretary or another employee of ASML’s Legal Department designated by ASML to act as proxy for such shareholders at the AGM and to vote on their behalf.
Holders of shares registered in the Shareholders’ Register kept at Veldhoven
Shareholders who are registered in the Shareholders’ Register kept at Veldhoven and who wish to attend the AGM either in person or by proxy can register for the AGM in the period starting Saturday 2 April 2022 until and including Friday 22 April 2022 5.30 pm CET, through ASML Holding N.V., Legal Department, De Run 6501, 5504 DR Veldhoven, the Netherlands, email: legal@asml.com.
Shareholders who do not wish to attend the AGM in person, but do wish to vote, may grant a proxy to civil-law notary Ms. C. Hagendijk (or her substitute), and instruct her to vote at the AGM
| Notice ASML AGM 2022 | 5 | Public |
on their behalf by means of a voting instruction form. A voting instruction form can be downloaded via the ASML website (www.asml.com/agm2022) or can be obtained upon request at the Company (email: legal@asml.com). In order to vote by proxy shareholders must register their shares as described above. After completion and signing the voting instruction form should be sent to the proxy. In case of granting a proxy to civil-law notary Ms. C. Hagendijk (or her substitute), the voting instruction form should be sent to: Civil-law notary Ms. C. Hagendijk, Keizersgracht 695-699, 1017 DW Amsterdam, the Netherlands, where it should be received no later than Friday 22 April 2022, 5.30 pm CET.
Webcast
There will be a live video broadcast of the integral AGM via the ASML AGM website. The website link for the webcast will be published on Friday 29 April 2022 on the AGM website of ASML (www.asml.com/agm2022).
Language
Given the international nature of ASML and because ASML’s corporate language is English, the AGM will be conducted in the English language. A live translation into Dutch will be offered and shareholders will have the opportunity to address the AGM in the Dutch language.
Questions
Shareholders that have registered for attending the AGM virtually and that are logged-in on the online platform for the virtual AGM have the opportunity to ask questions in writing during the AGM.
For general information or any remaining questions following the above, please refer to ASML’s Deputy Company Secretary, Angela van de Kerkhof, via email: legal@asml.com.
Veldhoven, 15 March 2022
The Board of Management
| Notice ASML AGM 2022 | 6 | Public |
Exhibit 99.3
Agenda for the Annual General Meeting of ASML Holding N.V. (“ASML” or the “Company”) to be held at the Auditorium, ASML Building 7, De Run 6665, Veldhoven, the Netherlands, on Friday 29 April 2022, starting at 2.00 pm CET (the “AGM”).
| 1. | Opening | Non-voting | ||||
| 2. | Overview of the Company’s business, financial situation and sustainability | Non-voting | ||||
| 3. | Financial statements, results and dividend | |||||
| a) | Advisory vote on the remuneration report for the Board of Management and the Supervisory Board for the financial year 2021 | Voting item | ||||
| b) | Proposal to adopt the financial statements of the Company for the financial year 2021, as prepared in accordance with Dutch law | Voting item | ||||
| c) | Clarification of the Company’s reserves and dividend policy | Non-voting | ||||
| d) | Proposal to adopt a dividend in respect of the financial year 2021 | Voting item | ||||
| 4. | Discharge | Voting items | ||||
| a) | Proposal to discharge the members of the Board of Management from liability for their responsibilities in the financial year 2021 | |||||
| b) | Proposal to discharge the members of the Supervisory Board from liability for their responsibilities in the financial year 2021 | |||||
| 5. | Proposal to approve the number of shares for the Board of Management |
Voting item | ||||
| 6. | Proposal to amend the Remuneration Policy for the Board of Management |
Voting item | ||||
| 7. | Composition of the Board of Management |
Non-voting | ||||
| a) | Notification of the intended reappointment of Mr. P.T.F.M. Wennink | |||||
| b) | Notification of the intended reappointment of Mr. M.A. van den Brink | |||||
| c) | Notification of the intended reappointment of Mr. F.J.M. Schneider-Maunoury | |||||
| d) | Notification of the intended reappointment of Mr. C.D. Fouquet | |||||
| e) | Notification of the intended reappointment of Mr. R.J.M. Dassen | |||||
| 8. | Composition of the Supervisory Board | |||||
| a) | Notification of Supervisory Board vacancies | Non-voting | ||||
| b) | Opportunity to make recommendations by the General Meeting | Non-voting | ||||
| c) | Announcement of the Supervisory Board’s recommendation to reappoint Ms. T.L. Kelly and appoint Mr. A.F.M. Everke and Ms. A.L. Steegen as members of the Supervisory Board | Non-voting | ||||
| d) | Proposal to reappoint Ms. T.L. Kelly as a member of the Supervisory Board | Voting item | ||||
| e) | Proposal to appoint Mr. A.F.M. Everke as a member of the Supervisory Board | Voting item | ||||
| f) | Proposal to appoint Ms. A.L. Steegen as a member of the Supervisory Board | Voting item | ||||
| g) | Composition of the Supervisory Board in 2023 | Non-voting | ||||
| 9. | Proposal to appoint KPMG Accountants N.V. as external auditor for the reporting years 2023 and 2024 | Voting item | ||||
| 10. | Proposal to appoint Deloitte Accountants B.V. as external auditor for the reporting year 2025, in light of the mandatory external auditor rotation | Voting item | ||||
| 11. | Proposal to amend the Articles of Association of the Company | Voting item | ||||
| Agenda incl. Explanatory Notes ASML AGM 2022 | 1 | Public |
| 12. | Proposals to authorize the Board of Management to issue ordinary shares or grant rights to subscribe for ordinary shares, as well as to restrict or exclude the pre-emption rights accruing to shareholders: | Voting items | ||||
| a) | Authorization to issue ordinary shares or grant rights to subscribe for ordinary shares up to 5% for general purposes and up to 5% in connection with or on the occasion of mergers, acquisitions and/or (strategic) alliances | |||||
| b) | Authorization of the Board of Management to restrict or exclude pre-emption rights in connection with the authorizations referred to in item 12 a) | |||||
| 13. | Proposal to authorize the Board of Management to repurchase ordinary shares up to 10% of the issued share capital | Voting item | ||||
| 14. | Proposal to cancel ordinary shares | Voting item | ||||
| 15. | Any other business | Non-voting | ||||
| 16. | Closing | Non-voting | ||||
| Agenda incl. Explanatory Notes ASML AGM 2022 | 2 | Public |
Explanatory Notes to the Agenda
| 2. | Overview of the Company’s business, financial situation and sustainability [Non-voting item] |
This agenda item includes an account of the Company’s business, financial situation and sustainability during the financial year 2021.
| 3. | Financial statements, results and dividend |
This agenda item consists of three voting items and one non-voting item
| a. | Advisory vote on the remuneration report for the Board of Management and the Supervisory Board for the financial year 2021 [Voting item] |
The Company has prepared the remuneration report for the Board of Management and the Supervisory Board for the financial year 2021 in accordance with the statutory requirements. Pursuant to Dutch law, the 2021 remuneration report will be submitted to the General Meeting for an advisory vote. The 2021 remuneration report has been published as part of the 2021 Annual Report and is also published separately on the Company’s website (www.asml.com/agm2022).
| b. | Proposal to adopt the financial statements of the Company for the financial year 2021, as prepared in accordance with Dutch law [Voting Item] |
The Company has prepared two sets of financial statements, one based on accounting principles generally accepted in the United States of America (“US GAAP”), and one based on International Financial Reporting Standards (“IFRS”) and Dutch law.
For internal and external reporting purposes, the Company follows US GAAP. US GAAP is ASML’s primary accounting standard. However, the Company’s financial statements based on IFRS and Dutch law are the annual accounts that are required for Dutch statutory purposes and are being submitted to the General Meeting for adoption.
The Company has published two Annual Reports regarding the financial year 2021: the 2021 Annual Report including financial statements based on US GAAP on Form 20-F and the 2021 Annual Report including the financial statements based on IFRS and Dutch law. Both 2021 Annual Reports include a chapter on the Company’s corporate governance structure, including an account of the Company’s compliance with the Dutch Corporate Governance Code.
The 2021 Annual Report, including the financial statements based on IFRS and Dutch law, has been published on the Company’s website (www.asml.com/agm2022) and is also available via the Company.
| c. | Clarification of the Company’s reserves and dividend policy [Non-voting item] |
The Board of Management will explain the Company’s reserves and dividend policy as outlined in the Company’s 2021 Annual Report.
As part of ASML’s financial policy to return excess cash to shareholders through dividends and regularly timed share buybacks, the Company aims to distribute a dividend that will be growing over time, paid semi-annually.
| Agenda incl. Explanatory Notes ASML AGM 2022 | 3 | Public |
| d. | Proposal to adopt a dividend in respect of the financial year 2021 [Voting item] |
ASML intends to declare a total dividend for 2021 of €5.50 per ordinary share. Recognizing the interim dividend of €1.80 per ordinary share paid on 12 November 2021, this leads to a final dividend proposal to the General Meeting of €3.70 per ordinary share (for a total amount of approximately €1.5 billion). This is a 100% increase compared to the 2020 total dividend of €2.75 per ordinary share. The proposed total dividend represents 38% of earnings per share in 2021.
The ex-dividend date as well as the fixing date for the EUR / USD conversion is set at 3 May 2022. The record date is set at 4 May 2022. The dividend will be made payable on 12 May 2022.
| 4. | Discharge |
This agenda item consists of two voting items
| a. | Proposal to discharge the members of the Board of Management from liability for their responsibilities in the financial year 2021 [Voting item] |
It is proposed to discharge the members of the Board of Management in office in 2021 from all liability in relation to the exercise of their duties in the financial year 2021.
| b. | Proposal to discharge the members of the Supervisory Board from liability for their responsibilities in the financial year 2021 [Voting item] |
It is proposed to discharge the members of the Supervisory Board in office in 2021 from all liability in relation to the exercise of their duties in the financial year 2021.
| 5. | Proposal to approve the number of shares for the Board of Management [Voting item] |
This agenda item concerns the proposal to approve the number of ordinary shares available for the Board of Management. Furthermore, the Company proposes to the General Meeting to designate the Board of Management as the body authorized to issue the ordinary shares as mentioned below, subject to the approval of the Supervisory Board. This authorization is a separate authorization from the authorization as referred to in agenda item 12, and will be requested for the period starting from the AGM held on 29 April 2022 up to the AGM to be held in 2023.
The maximum available number of ordinary shares for the Board of Management members that the Company hereby submits for approval to the General Meeting amounts to 200,000 (two hundred thousand) ordinary shares for the abovementioned period.
The actual number of ordinary shares that will be granted to the Board of Management members will be determined in accordance with the performance share arrangement as incorporated in the Remuneration Policy for the Board of Management. The maximum available number of ordinary shares referred to in this agenda item should be considered as the maximum reservation that could be needed to execute the Remuneration Policy for the Board of Management in the abovementioned period.
For further information on the performance share arrangement for the Board of Management reference is made to the applicable Remuneration Policy.
| 6. | Proposal to amend the Remuneration Policy for the Board of Management [Voting item] |
The current Remuneration Policy for the Board of Management (the “Remuneration Policy”) was adopted by the General Meeting at the 2021 AGM and builds on the Remuneration Policy that was developed since 2017, when the last major revision took place. Since that time, only limited adjustments have been implemented, mainly to reflect the increased size of ASML, in order to remain competitive compared to the chosen labor market.
| Agenda incl. Explanatory Notes ASML AGM 2022 | 4 | Public |
ASML has a practice to conduct a remuneration benchmark every two years, which may be followed by the implementation of certain changes to the remuneration policy, and to consider the need for more fundamental changes in the fourth year after a major revision. In line with that practice, the next major revision after the 2017 policy review would have been in 2021. However, due to the COVID-19 pandemic, it was decided to only carry out a new benchmarking at that time, and consider any further, more fundamental changes in 2022. Therefore, five years after the last major revision in 2017, the Supervisory Board considered a more fundamental revision due for 2022, to evaluate to what extent a more comprehensive adjustment would be appropriate.
In these five years, ASML has grown significantly in terms of revenue, headcount and market capitalization, among other things. Apart from these numbers, with its growth, ASML has become a true global player, not just in the semiconductor industry, but in the world at large. Not only ASML has changed during this time, but also the context in which it operates. Society and ASML’s stakeholders have different expectations compared to five years ago. Given its position in the world, ASML has a responsibility to live up to, which is reflected in its future aspirations, and which go beyond financial growth. Given this new context and position, the Remuneration Committee and the Supervisory Board, after due consideration, concluded that an amendment of the Remuneration Policy was desirable to reflect the growth and strategic objectives of the Company.
The Supervisory Board, upon recommendation of the Remuneration Committee, therefore proposes to amend the Remuneration Policy. If adopted, the amended Remuneration Policy will be effective as per 1 January 2022.
The proposal to amend the Remuneration Policy is made following an extensive consultation with shareholders and other stakeholders. The Works Council of ASML Netherlands B.V. (the “Works Council”) has been timely provided with the opportunity to determine its position and provide advice on the proposed amendment of the Remuneration Policy. Reference is made to the document “Stakeholder feedback on the proposal to amend the Remuneration Policy of the Board of Management of ASML Holding N.V.” which is available on ASML’s website (www.asml.com/agm2022).
For the full text of the proposed Remuneration Policy including the Rationale, reference is made to the Remuneration Policy for the Board of Management (version 2022) as published on ASML’s website (www.asml.com/agm2022).
| 7. | Composition of the Board of Management [Non-voting item] |
This agenda item consists of five non-voting items
Mr. P.T.F.M. (Peter) Wennink, Mr. M.A. (Martin) van den Brink, Mr. F.J.M. (Frédéric) Schneider-Maunoury, Mr. C.D. (Christophe) Fouquet and Mr. R.J.M. (Roger) Dassen have indicated that they are available for reappointment after the completion of their current term.
The Supervisory Board announces that it intends to nominate Mr. Wennink, Mr. Van den Brink, Mr. Schneider-Maunoury, Mr. Fouquet and Mr. Dassen for reappointment as a member of the Board of Management per the date of the 2022 AGM.
| a. | Notification of the intended reappointment of Mr. P.T.F.M. Wennink [Non-voting item] |
The Supervisory Board appointed Mr. Wennink as a member of the Company’s Board of Management as per 1 July 1999. Mr. Wennink’s current appointment term will end per the AGM of 29 April 2022.
| Agenda incl. Explanatory Notes ASML AGM 2022 | 5 | Public |
The Supervisory Board intends to reappoint Mr. Wennink in view of his performance over the past years, especially as the Company’s President and Chief Executive Officer since 2013. Given his valuable contribution, the Supervisory Board is of the opinion that ASML will continue to benefit from Mr. Wennink’s membership of ASML’s Board of Management. The reappointment of Mr. Wennink will be for a consecutive period of two years, subject to notification to the AGM on 29 April 2022. Pursuant to the Company’s Articles of Association, Mr. Wennink’s two-year term will commence per the AGM to be held on 29 April 2022 and will expire effective per the AGM to be held in 2024. If both parties so decide, the appointment term may be further extended for consecutive periods, each with a maximum of four years.
Mr. Wennink was born in 1957 and has the Dutch nationality. Mr. Wennink joined ASML in 1999 as Executive Vice President and Chief Financial Officer, and was appointed as member of the Board of Management of ASML per 1 July 1999. Per 1 July 2013 Mr. Wennink was appointed as President and Chief Executive Officer of the Company. Mr. Wennink has an extensive background in finance and accounting. Prior to joining the Company, Mr. Wennink was a partner at Deloitte Accountants B.V., specializing in the high technology industry with an emphasis on the semiconductor industry. Mr. Wennink is currently the Chairman of the Supervisory Board of the Eindhoven University of Technology and the Eindhoven Circle of Manufacturers, Vice-Chairman of the Board of the FME-CWM (the employer’s organization for the technology industry in the Netherlands) and a member of the Board of Captains of Industry Eindhoven Region. Furthermore, Mr. Wennink is council member of Top Consortium for Knowledge and Innovation (High tech Systems & Materials) TKI HTS&M, member of the Advisory Committee of the Dutch National Growth Fund and a member of the Circle of Influence of Startup Delta. He is also a member of the Royal Dutch Association of Accountants.
Below is an overview of the most important elements of Mr. Wennink’s management services agreement, including his remuneration package. The management services agreement is in accordance with the Dutch Corporate Governance Code. The remuneration package is also in accordance with the applicable Remuneration Policy, including the performance criteria.
| Base salary | : | EUR 1,020,000 gross. | ||
| Short Term Incentive | : | In accordance with the cash incentive included in | ||
| the applicable Remuneration Policy. | ||||
| Long Term Incentive | : | In accordance with the performance share | ||
| arrangement as included in the applicable | ||||
| Remuneration Policy. | ||||
| Pension | : | Individual policy under a defined | ||
| contribution plan (total annual premium FY 2022 | ||||
| equals approximately EUR 209,807 of which the | ||||
| employee’s contribution to the premium is | ||||
| approximately EUR 3,861). | ||||
| Severance payment | : | One year base salary (gross). | ||
| Appointment term | : | Two-year term, with the possibility of | ||
| reappointment. |
| b. | Notification of the intended reappointment of Mr. M.A. van den Brink [Non-voting item] |
The Supervisory Board appointed Mr. Van den Brink as a member of the Company’s Board of Management as per 1 July 1999. Mr. Van den Brink’s current appointment term will end per the AGM of 29 April 2022.
| Agenda incl. Explanatory Notes ASML AGM 2022 | 6 | Public |
The Supervisory Board intends to reappoint Mr. Van den Brink in view of his performance over the past years, especially as the Company’s President and Chief Technology Officer since 2013. Given his valuable contribution, the Supervisory Board is of the opinion that ASML will continue to benefit from Mr. Van den Brink’s membership of ASML’s Board of Management. The reappointment of Mr. Van den Brink will be for a consecutive period of two years, subject to notification to the AGM on 29 April 2022. Pursuant to the Company’s Articles of Association, Mr. Van den Brink’s two-year term will commence per the AGM to be held on 29 April 2022 and will expire effective per the AGM to be held in 2024. If both parties so decide, the appointment term may be further extended for consecutive periods, each with a maximum of four years.
Mr. Van den Brink was born in 1957 and has the Dutch nationality. Mr. Van den Brink joined the Company when it was founded in 1984. As Vice President Technology since 1995, Executive Vice President and member of the Board of Management since 1999 and President and Chief Technology Officer since 1 July 2013, he has led ASML’s product and technology development to breakthrough innovations such as the Twinscan platform, immersion lithography and 0.33 NA and 0.55 NA EUV technology, taking ASML to its current position.
Below is an overview of the most important elements of Mr. Van den Brink’s management services agreement, including his remuneration package. The management services agreement is in accordance with the Dutch Corporate Governance Code. The remuneration package is also in accordance with the applicable Remuneration Policy, including the performance criteria.
| Base salary |
: | EUR 1,020,000 gross. | ||||
| Short Term Incentive |
: | In accordance with the cash incentive included in | ||||
| the applicable Remuneration Policy. | ||||||
| Long Term Incentive |
: | In accordance with the performance share | ||||
| arrangement as included in the applicable | ||||||
| Remuneration Policy. | ||||||
| Pension |
: | Individual policy under a defined | ||||
| contribution plan (total annual premium FY 2022 | ||||||
| equals approximately EUR 209,807 of which the | ||||||
| employee’s contribution to the premium is | ||||||
| approximately EUR 3,861). | ||||||
| Severance payment |
: | One year base salary (gross). | ||||
| Appointment term |
: | Two-year term, with the possibility of | ||||
| reappointment. |
| c. | Notification of the intended reappointment of Mr. F.J.M. Schneider-Maunoury [Non-voting item] |
The Supervisory Board appointed Mr. Schneider-Maunoury as a member of the Company’s Board of Management as per 24 March 2010. Mr. Schneider-Maunoury’s current appointment term will end per the AGM of 29 April 2022.
The Supervisory Board intends to reappoint Mr. Schneider-Maunoury in view of his performance as the Company’s Executive Vice President and Chief Operations Officer and member of the Board of Management over the past twelve years. Given his valuable contribution, the Supervisory Board is of the opinion that ASML will continue to benefit from Mr. Schneider-Maunoury’s membership of ASML’s Board of Management. The reappointment of Mr. Schneider-Maunoury will be for a consecutive period of four years, subject to notification to the AGM on 29 April 2022. Pursuant to the Company’s Articles of Association, Mr. Schneider-Maunoury’s four year term will commence per the AGM to be held on 29 April 2022 and will expire effective per the AGM to be held in 2026. If both parties so decide, the appointment term may be further extended for consecutive periods, each with a maximum of four years.
| Agenda incl. Explanatory Notes ASML AGM 2022 | 7 | Public |
Mr. Schneider-Maunoury was born in 1961 and has the French nationality. Mr. Schneider-Maunoury has had various functions during his career and has gained worldwide business and operational experience in the high-value equipment industry. As Chief Operations Officer, Mr. Schneider-Maunoury is, amongst others, responsible for the successful execution of the Company’s fundamental operating strategy.
Below is an overview of the most important elements of Mr. Schneider-Maunoury’s management services agreement, including his remuneration package. The management services agreement is in accordance with the Dutch Corporate Governance Code. The remuneration package is also in accordance with the applicable Remuneration Policy, including the performance criteria.
| Base salary |
: | EUR 694,000 gross. | ||||
| Short Term Incentive |
: | In accordance with the cash incentive included in | ||||
| the applicable Remuneration Policy. | ||||||
| Long Term Incentive |
: | In accordance with the performance share | ||||
| arrangement as included in the applicable | ||||||
| Remuneration Policy. | ||||||
| Pension |
: | Individual policy under a defined | ||||
| contribution plan (total annual premium FY 2022 | ||||||
| equals approximately EUR 144,868 of which the | ||||||
| employee’s contribution to the premium is | ||||||
| approximately EUR 3,861). | ||||||
| Severance payment |
: | One year base salary (gross). | ||||
| Appointment term |
: | Four-year term, with the possibility of | ||||
| reappointment. |
| d. | Notification of the intended reappointment of Mr. C.D. Fouquet [Non-voting item] |
The Supervisory Board appointed Mr. Fouquet as a member of the Company’s Board of Management as per 25 April 2018. Mr. Fouquet’s current appointment term will end per the AGM of 29 April 2022.
The Supervisory Board intends to reappoint Mr. Fouquet in view of his performance as the Company’s Executive Vice President EUV over the past four years as well as his broad and deep technology and business experience. Given his valuable contribution, the Supervisory Board is of the opinion that ASML will continue to benefit from Mr. Fouquet’s membership of ASML’s Board of Management. The reappointment of Mr. Fouquet will be for a consecutive period of four years, subject to notification to the AGM on 29 April 2022. Pursuant to ASML’s Articles of Association, Mr. Fouquet’s term will commence as per the AGM to be held on 29 April 2022 and will expire effective the AGM to be held in 2026. If both parties so decide, the appointment term may be further extended for consecutive periods, each with a maximum of four years.
Mr. Fouquet was born in 1973 and has the French nationality. Mr. Fouquet joined ASML in 2008 and has held several positions at the Company. From 2013 until 2018 Mr. Fouquet was the Executive Vice President of the Applications business. Since his appointment as member of the Board of Management in 2018 Mr. Fouquet has been Executive Vice President EUV. Prior to joining the Company, Mr. Fouquet worked at semiconductor equipment peers KLA Tencor and Applied Materials.
Below is an overview of the most important elements of Mr. Fouquet’s management services agreement, including his remuneration package. The management services agreement is in accordance with the Dutch Corporate Governance Code. The remuneration package is also in accordance with the applicable Remuneration Policy, including the performance criteria.
Base compensation : EUR 694,000 gross.
| Agenda incl. Explanatory Notes ASML AGM 2022 | 8 | Public |
| Short Term Incentive |
: | In accordance with the cash incentive included in | ||||
| the applicable Remuneration Policy. | ||||||
| Long Term Incentive |
: | In accordance with the performance share | ||||
| arrangement as included in the applicable | ||||||
| Remuneration Policy. | ||||||
| Pension |
: | Individual policy under a defined | ||||
| contribution plan (total annual premium FY 2022 | ||||||
| equals approximately EUR 82,126 of which the | ||||||
| employee’s contribution to the premium is | ||||||
| approximately EUR 3,861). | ||||||
| Severance payment |
: | One year base salary (gross). | ||||
| Appointment term |
: | Four-year term, with the possibility of | ||||
| reappointment. |
| e. | Notification of the intended reappointment of Mr. R.J.M. Dassen [Non-voting item] |
The Supervisory Board appointed Mr. Dassen as a member of the Company’s Board of Management as per 1 June 2018. Mr. Dassen’s current appointment term will end per the AGM of 29 April 2022.
The Supervisory Board intends to reappoint Mr. Dassen in view of his performance as Executive Vice President and Chief Financial Officer as well as his deep financial expertise and broad managerial experience. The Supervisory Board is of the opinion that ASML will continue to benefit from Mr. Dassen’s membership of ASML’s Board of Management. The reappointment of Mr. Dassen will be for a consecutive period of four years, subject to notification to the AGM on 29 April 2022. Pursuant to ASML’s Articles of Association, Mr. Dassen’s term will commence as per the AGM to be held on 29 April 2022 and will expire effective the AGM to be held in 2026. If both parties so decide, the appointment term may be further extended for consecutive periods, each with a maximum of four years.
Mr. Dassen was born in 1965 and has the Dutch nationality. Mr. Dassen was appointed Executive Vice President and CFO and member of the Board of Management as per 1 June 2018. Previously, Mr. Dassen served as Global Vice Chair and member of the Executive Board of Deloitte Touche Tohmatsu Limited, having been CEO of Deloitte Holding B.V. Since his appointment in 2018 Mr. Dassen served as Chief Financial Officer on the Board of Management of the Company. Mr. Dassen holds a master’s in Economics and Business Administration, a post-master’s in Auditing, and a PhD in Business Administration, all from the University of Maastricht. He is Professor of Auditing at the Free University Amsterdam, and sits on the Supervisory Board of the Dutch National Bank. He is also the Chair of the Supervisory Board of Maastricht University Medical Center+ and member of Stichting Brainport.
Below is an overview of the most important elements of Mr. Dassen’s management services agreement, including his remuneration package. The management services agreement is in accordance with the Dutch Corporate Governance Code. The remuneration package is also in accordance with the applicable Remuneration Policy, including the performance criteria.
| Base compensation | : | EUR 694,000 gross. | ||
| Short Term Incentive | : | In accordance with the cash incentive included in | ||
| the applicable Remuneration Policy. | ||||
| Long Term Incentive | : | In accordance with the performance share | ||
| arrangement as included in the applicable | ||||
| Remuneration Policy. | ||||
| Pension | : | Individual policy under a defined contribution plan (total annual premium FY 2022 equals approximately EUR 119,050 of which the employee’s contribution to the premium is approximately EUR 3,861). | ||
| Severance payment | : | One year base salary (gross). | ||
| Appointment term | : | Four-year term, with the possibility of reappointment | ||
| Agenda incl. Explanatory Notes ASML AGM 2022 | 9 | Public |
| 8. | Composition of the Supervisory Board |
This agenda item consists of three voting items and four non-voting items
| a. | Notification of Supervisory Board vacancies [Non-voting item] |
As announced at the AGM held on 29 April 2021, the Supervisory Board gives notice of the fact that Ms. T.L. (Terri) Kelly and Mr. J.M.C. (Hans) Stork will retire by rotation per the date of the 2022 AGM. Ms. Kelly has indicated that she will be available for reappointment. Mr. Stork has informed the Supervisory Board that he will not be available for reappointment after the completion of his current term.
In addition to the vacancies that arise upon the retirement by rotation of Ms. Kelly and Mr. Stork, the Supervisory Board gives notice of its intention to nominate another candidate as a member of the Supervisory Board as per the AGM, thereby increasing the number of members of the Supervisory Board to nine members. The rationale behind the extension of the Supervisory Board is that the Supervisory Board considers it desirable to add an additional member with a background and experience in semiconductor technology and the semiconductor industry, given the growth of the Company in size and complexity, as well as in view of the Supervisory Board’s rotation schedule.
| b. | Opportunity to make recommendations by the general meeting [Non-voting item] |
At the 2021 AGM the Supervisory Board gave notice of the vacancies that would arise upon the retirement by rotation of Ms. Kelly and Mr. Stork and shareholders were given the opportunity to make recommendations for appointment of candidates to these vacancies. With respect to the additional vacancy as set out above, the General Meeting will be given the opportunity to make recommendations for appointment of candidates for this new position, thereby taking into account the profile of the Supervisory Board as most recently adopted during the 2019 AGM and as published on the Company’s website (www.asml.com).
The Works Council has an enhanced right to recommend persons for nomination to the Supervisory Board for up to one-third of its members. With the increase of the number of Supervisory Board members to nine, the enhanced recommendation right of the Works Council also applies to this new vacancy. The Works Council has used its enhanced recommendation right for this new vacancy.
| c. | Announcement of the Supervisory Board’s recommendation to reappoint Ms. T.L. Kelly and appoint Mr. A.F.M. Everke and Ms. A.L. Steegen as members of the Supervisory Board [Non-voting item] |
The Supervisory Board announces that it intends to nominate Ms. Kelly for reappointment and Mr. A.F.M. (Alexander) Everke and Ms. A.L. (An) Steegen for appointment as members of the Supervisory Board per the date of the 2022 AGM.
The nomination of Ms. Kelly and Ms. Steegen is based on the enhanced recommendation right of the Works Council.
| d. | Proposal to reappoint Ms. T.L. Kelly as a member of the Supervisory Board [Voting item] Ms. Kelly was first appointed as a member of the Company’s Supervisory Board in 2018. Currently, she is the Chair of the Remuneration Committee and a member of the Selection and Nomination Committee. |
| Agenda incl. Explanatory Notes ASML AGM 2022 | 10 | Public |
Ms Kelly was born in 1961 and has the American nationality. Ms Kelly is currently a member of the Board of Directors of United Rentals inc. and is Trustee of the Nemour Foundation, and the Unidel Foundation. Furthermore, Ms. Kelly is Vice-Chair of the University of Delaware. Ms. Kelly holds a bachelor of science degree in Mechanical Engineering from the University of Delaware.
Ms. Kelly does not hold any shares in the capital of the Company.
Ms Kelly’s initial appointment was based on the enhanced recommendation right of the Works Council and the Works Council also used its enhance recommendation right for the current nomination of Ms. Kelly. The Works Council has been timely provided with the opportunity to determine its position in this respect. The Supervisory Board nominates Ms. Kelly for reappointment as a member of the Supervisory Board not only because of the recommendation made by the Works Council, but also because of her background and experience as CEO in an innovative, multinational business with a long term orientation, as well as her experience in the area of organizational and leadership development. Ms. Kelly fits very well in the profile drafted for this position, and the Supervisory Board expects to continue benefitting from Ms. Kelly’s extensive experience.
Ms. Kelly’s appointment will be for a term of four years in accordance with the Company’s Articles of Association.
If the General Meeting resolves to reappoint Ms. Kelly, the reappointment will be effective per the AGM on 29 April 2022.
| e. | Proposal to appoint Mr. A.F.M. Everke as a member of the Supervisory Board [Voting item] |
Mr. Everke was born in 1963 and has the German nationality. Currently, Mr. Everke is the CEO of ams-OSRAM AG, a position he has held since March 2016, after having joined ams AG in October 2015. Mr. Everke started his career in the semiconductor industry in 1991 as the Marketing Manager and Director with Siemens. In 1996, he joined Siemens’ spinoff, Infineon, where he held various management positions. From 2006 until 2015, Mr. Everke worked at NXP Semiconductors, where he took on various leadership roles both in the UK as well as in The Netherlands.
Mr. Everke holds a master degree in Business Administration, International Business from the Hochshule Bochum, Germany and a master’s degree Electrical Engineering from the Ruhr-Universitat Bochum, Germany
In view of Mr. Everke’s extensive general management and semiconductor experience, the Supervisory Board is of the opinion that Mr. Everke fits very well in the Supervisory Board profile for this position. The Supervisory Board expects that it will benefit from his knowledge, experience and leadership capabilities, especially given his general management experience as well as his experience in the semiconductor industry in various companies.
Mr. Everke does not hold any shares in the capital of the Company.
The appointment of Mr. Everke will be for a term of four years in accordance with the Company’s articles of association.
The General Meeting has not made any recommendations for the filling of this vacancy and the Works Council has not recommended any candidate to fill this position either. The Works Council has been timely provided with the opportunity to determine its position on the nomination of Mr. Everke for appointment as a member of the Supervisory Board and has notified the Supervisory
| Agenda incl. Explanatory Notes ASML AGM 2022 | 11 | Public |
Board that it is in favor thereof.
If the General Meeting resolves to appoint Mr. Everke, the appointment will be effective per the AGM on 29 April 2022.
| f. | Proposal to appoint Ms. A.L. Steegen as a member of the Supervisory Board [Voting item] |
Ms. Steegen was born in 1971 and has the Belgian nationality. Currently, Ms. Steegen is the co-CEO and member of the Board of Directors of Barco NV, a position she has held since October 2021.
Prior to her current role, Ms. Steegen was R&D director IBM Semiconductor from 2000 until 2010, where she fulfilled several technical management roles and was in charge of IBM’s International Semiconductor Development Alliance partnership with various chip makers . In 2010, Ms. Steegen joined research institute imec in Belgium as Executive Vice President responsible for the Semiconductor Technology & Systems. After that, from 2018 until September 2021, Ms. Steegen was the Chief Technology Officer and Executive Vice President Electronic and Electro-Optical Materials at Umicore.
Ms. Steegen holds a Ph.D. in Material Science and Electrical Engineering from the Catholic University of Leuven, Belgium.
In view of Ms. Steegen’s extensive management level and semiconductor experience, the Supervisory Board is of the opinion that Ms. Steegen fits very well in the Supervisory Board profile for this position. The Supervisory Board is convinced that it will benefit from her knowledge, experience and leadership capabilities, especially given her experience in the semiconductor industry in various organizations.
Ms. Steegen does not hold any shares in the capital of the Company.
The nomination for appointment of Ms. Steegen is based on the enhanced recommendation right of the Works Council. The Works Council has been timely provided with the opportunity to determine its position in this respect. The Supervisory Board intends to nominate Ms. Steegen for appointment as a member of the Supervisory Board not only because of the preference the Works Council has expressed with respect to her appointment, but also because of her extensive management and semiconductor experience. The Supervisory Board is of the opinion that Ms. Steegen fits very well in the Supervisory Board profile for this position. The Supervisory Board is convinced that it will benefit from her knowledge, experience and leadership capabilities, especially given her experience in the semiconductor industry in various companies.
The appointment of Ms. Steegen will be for a term of four years in accordance with the Company’s articles of association.
If the General Meeting resolves to appoint Ms. Steegen, the appointment will be effective per the AGM on 29 April 2022.
| g. | Composition of the Supervisory Board in 2023 [Non-voting item] |
The Supervisory Board gives notice that the following persons will be retiring by rotation per the AGM to be held in 2023:
| • | Mr. G.J. Kleisterlee |
| • | Mr. R.D. Schwalb |
| Agenda incl. Explanatory Notes ASML AGM 2022 | 12 | Public |
| 9. | Proposal to appoint KPMG Accountants N.V. as external auditor for the reporting years 2023 and 2024 [Voting Item] |
In 2021, the Audit Committee conducted an independent assessment of the performance of the Company’s external auditor, KPMG Accountants N.V., over the past year. The assessment was conducted by means of a survey, which was completed by the various corporate functions within the Company who work with the external auditor during the audit, and by the Audit Committee. The survey addressed among others the quality, scope and planning of the audit and the independence and reporting of the external auditor. The outcome of the survey was positive. As a result, the Audit Committee recommended to the Supervisory Board to again appoint KPMG Accountants N.V. as external auditor.
Given that the Supervisory Board, per the recommendation of the Audit Committee, will propose to the General Meeting under agenda item 10 to appoint Deloitte Accountants B.V. as the Company’s external audit firm effective per the reporting year 2025, the Audit Committee and the Supervisory Board considered it desirable to appoint KPMG Accountants N.V. for a term of two years, being the reporting years 2023 and 2024.
The Supervisory Board decided to follow the recommendation of its Audit Committee, and proposes to appoint KPMG Accountants N.V. as the Company’s external auditor for the reporting years 2023 and 2024.
| 10. | Proposal to appoint Deloitte Accountants B.V. as external auditor for the reporting year 2025, in light of the mandatory external auditor rotation [Voting Item] |
KPMG Accountants N.V. has been ASML’s external auditor since the reporting year 2016. In anticipation of the mandatory external auditor rotation and due to the fact that the current lead audit partner, for independence reasons, can only stay in this role until and including the reporting year 2024, the Supervisory Board, upon recommendation of the Audit Committee, proposes to appoint a new external auditor effective per the 2025 reporting year.
The Audit Committee considered it important to start with the preparations and selection process in a timely manner, given the limited number of audit firms available. In addition, the Audit Committee considered it essential to have sufficient time for on-boarding the new external audit firm and for transferring any non-audit services currently performed by the newly appointed external audit firm.
The Audit Committee started the selection process in September 2021 and established a separate Committee (the “Selection Committee”) to make recommendations with regard to the selection of the external audit firm. The Selection Committee met frequently during this process. The chairman of the Audit Committee acted as chairman of the Selection Committee. The other two members of the Audit Committee, the CFO and Executive Vice President Finance were also part of the Selection Committee. The Corporate Chief Accountant participated in the Selection Committee as a non-voting member. The Selection Committee invited the other three ‘big four’ audit firms (other than the existing audit firm), as well as one second tier audit firm, to participate in the selection process. The three ‘big four’ audit firms decided to participate in the selection process. After conducting a series of interviews, as well as two presentation rounds, in which the participating firms were offered the opportunity to present themselves and their audit proposals, the Selection Committee evaluated the participating audit firms based on certain pre-defined selection criteria, such as the planned involvement of experts, the ‘fit’ with the audit partner and the audit team, the level of innovation in audit approach, the experience with the high tech industry, quality and reference rating, the international network of the audit firm, the onboarding strategy, the competitiveness of the audit fee as well as proposal documentation and presentations provided by the invited audit firms.
| Agenda incl. Explanatory Notes ASML AGM 2022 | 13 | Public |
The Selection Committee concluded that Deloitte Accountants B.V. (“Deloitte”) was the preferred audit firm, with PricewaterhouseCoopers Accountants N.V. as runner up, considering the above mentioned selection criteria, proposal documents and presentations. The Audit Committee subsequently recommended Deloitte as the preferred candidate. The Supervisory Board decided to follow the Audit Committee’s recommendation and proposes to appoint Deloitte as ASML’s external auditor for the reporting year 2025.
| 11. | Proposal to amend the Articles of Association of the Company [Voting item] |
Since the last change of the Articles of Association of the Company in 2012, various changes in applicable laws and regulations have come into force that allow amendments to the Articles of Association. The proposed amendments reflect those changes in laws and regulations. Furthermore, some amendments are proposed to simplify the Articles of Association and apply amendments of a technical nature. The most important proposed amendments are set-out below.
Capital structure
Removal of the class of ordinary shares B. The Articles of Association provide for ordinary shares B. Currently no ordinary shares B are outstanding and the ability for shareholders to request issuance of ordinary shares B lapsed in 2013. It is therefore proposed to remove the ordinary class B shares and the provisions relating to such shares.
Voting right per share. With the removal of the ordinary shares B class of shares, all shares will have the same nominal value and thus identical voting rights. It is therefore proposed that each share will carry one vote. This will simplify voting procedures at general meetings.
Supervisory Board and Board of Management
Conflict of Interest. It is proposed to align the conflicts of interest provision for the Board of Management and the Supervisory Board with the current Dutch law provisions.
Prevented from acting or failing to act. It is expected that in 2022, Dutch legislation will enter into force which will require the Company to include a provision in the Articles of Association on how the duties and responsibilities of the Supervisory Board will be taken care of if all Supervisory Board positions are vacant or if all Supervisory Board members are prevented from acting. It is also proposed to amend the provisions relating to prevention or inability to act for Board of Management to align with the above mentioned Dutch legislation that is expected to enter into force in 2022. Changes serve to clarify how to deal with members of the Board of Management that are prevented from acting (for instance due to illness).
Other
Dividend. It is proposed to clarify that dividends can also be paid in kind (in addition to cash or stock dividend) and to include a provision that the Board of Management, with the approval of the Supervisory Board, can resolve to pay an interim dividend in the form of shares or in kind. With respect to the benchmark for preference shares dividend, it is proposed to include an alternative interest benchmark which can be applied in the event that Euribor is no longer available as benchmark.
Because in the Board of Management’s view no material amendments are proposed, all proposed amendments will be handled in one agenda item.
| Agenda incl. Explanatory Notes ASML AGM 2022 | 14 | Public |
The Supervisory Board has granted its approval for the amendment of the Articles of Association.
A triptych of the Articles of Association, including the existing text, the proposed changes and an explanation thereto, both in the English and the Dutch language, is published on ASML’s website (www.asml.com/agm2022) and is available for inspection at the offices of the Company until the AGM is held.
The resolution to amend the Articles of Association also includes the authorization of each Board of Management member as well as each lawyer and paralegal practicing with De Brauw Blackstone Westbroek N.V. to execute the notarial deed of amendment to the Articles of Association.
| 12. | Proposals to authorize the Board of Management to issue ordinary shares or grant rights to subscribe for ordinary shares, as well as to restrict or exclude the pre-emption rights accruing to shareholders |
This agenda item consists of two voting items:
| a. | Authorization to issue ordinary shares or grant rights to subscribe for ordinary shares up to 5% for general purposes and up to 5% in connection with or on the occasion of mergers, acquisitions and/or (strategic) alliances. [Voting item] |
It is proposed to authorize the Board of Management for a period of 18 months from the date of the AGM (i.e. from 29 April 2022 up to and including 29 October 2023) and subject to the approval of the Supervisory Board, to issue ordinary shares or grant rights to subscribe for ordinary shares up to 5% for general purposes and up to 5% in connection with or on the occasion of mergers, acquisitions and/or (strategic) alliances. In both cases, the authorization is limited to a maximum of 5% of ASML’s issued share capital as per 29 April 2022. If this authorization is approved by the General Meeting, the existing authorization as granted per 29 April 2021 will cease to apply.
| b. | Authorization of the Board of Management to restrict or exclude pre-emption rights in connection with the authorizations referred to in item 12 a). [Voting item] |
It is proposed to authorize the Board of Management for a period of 18 months from the date of the AGM (i.e. from 29 April 2022 up to and including 29 October 2023) and subject to the approval of the Supervisory Board, to restrict or exclude pre-emption rights in relation to the issue of ordinary shares or the granting of rights to subscribe for ordinary shares as described under a. Pursuant to the Company’s Articles of Association, if less than 50% of the issued capital is represented, this proposal can only be adopted by a majority of at least two-thirds of the votes cast. If 50% or more of the issued capital is represented, a simple majority is sufficient to adopt this proposal. If this authorization is approved by the General Meeting, the existing authorization as granted per 29 April 2021 will cease to apply.
This is an annually recurring agenda item because the Board of Management considers it in the interest of the Company and its shareholders to be able to react in a timely manner when certain opportunities arise that require the issue of shares. Therefore, the Board of Management would like to have the authority to issue shares when such occasions occur, and to exclude the pre-emption rights in situations where it is imperative to be able to act quickly, without having to request the prior approval of the Company’s shareholders, for which an extraordinary shareholders’ meeting would have to be convened which would take valuable time or could create disruptive market speculations.
In the past, this agenda item was for example used in relation to acquisitions. The opportunity to enter into this type of transaction may be limited if ASML needs to request prior approval to issue shares and/or exclude shareholders’ pre-emption rights.
| Agenda incl. Explanatory Notes ASML AGM 2022 | 15 | Public |
Introduction to agenda items 13 and 14:
ASML aims to have flexibility in the execution of a return of capital to its shareholders. To enable such flexibility, ASML requests the General Meeting to mandate further share repurchases as well as to further authorize cancellation of ordinary shares to be able to execute share buyback programs, if the Company decides to do so.
As part of ASML’s financial policy to return excess cash to shareholders through dividends and regularly timed share buybacks, the Company announced on 21 July 2021 a share buyback program to be executed within the 2021—2023 time frame. As part of this program, ASML intends to repurchase shares up to €9 billion. ASML intends to cancel these shares after repurchase, with the exception of up to 0.45 million shares which will be used to cover employee equity plans. This share buyback program started on 22 July 2021. The share buyback program will be executed within the limitations of the authority granted by the General Meeting from time to time.
| 13. | Proposal to authorize the Board of Management to repurchase ordinary shares up to 10% of the issued share capital [Voting item] |
It is proposed to renew the authorization of the Board of Management to repurchase ordinary shares for a period of 18 months effective per 29 April 2022 up to and including 29 October 2023. Provided that the General Meeting grants this new authorization, the existing authorization to repurchase ordinary shares will cease to apply.
In order to realize share buybacks and to have further flexibility in the execution of a return of capital to the shareholders, it is proposed to authorize the Board of Management for a period of 18 months from 29 April 2022, to acquire—subject to the approval of the Supervisory Board—ordinary shares in the Company’s share capital up to 10% of the issued share capital at the date of authorization (29 April 2022), for valuable consideration, on Euronext Amsterdam (“Euronext Amsterdam”) or the NASDAQ Stock Market LLC (“NASDAQ”), or otherwise, at a price between an amount equal to the nominal value of the ordinary shares and an amount equal to 110% of the market price of these ordinary shares on Euronext Amsterdam or NASDAQ; the market price being the average of the highest price on each of the five days of trading prior to the date of acquisition, as shown in the Official Price List of Euronext Amsterdam or as reported on NASDAQ.
If this authorization is approved by the General Meeting, the existing authorization will cease to apply.
Provided that the General Meeting grants this authorization, the Company may repurchase its issued ordinary shares at any time during this 18-month period. Repurchased ordinary shares will be cancelled on a regular basis, provided that the General Meeting resolves to cancel these ordinary shares (agenda item 14).
Any repurchase of shares is subject to the approval of the Supervisory Board.
| 14. | Proposal to cancel ordinary shares [Voting item] |
As outlined above, the number of ordinary shares ASML may at any time hold in its own capital may not exceed 10% of the issued share capital at the date of the authorization (29 April 2022).
It is proposed to the General Meeting to cancel any or all ordinary shares in the share capital of the Company held or repurchased by the Company under the authorization referred to under agenda item 13, to the extent that such ordinary shares are not used to cover obligations under employee equity plans. This cancellation may be executed in one or more tranches. The number of ordinary shares that will be cancelled (whether or not in a tranche) will be determined by the Board of Management, but may not exceed 10% of the issued share capital at 29 April 2022. Pursuant to the relevant statutory provisions, cancellation may not be effected until two months after the resolution to cancel has been adopted and publicly announced (this will apply to each tranche).
| Agenda incl. Explanatory Notes ASML AGM 2022 | 16 | Public |
EXHIBIT 99.4
15 March 2022
Unofficial Translation
TRIPTYCH
UNOFFICIAL ENGLISH TRANSLATION1
AMENDMENT TO THE ARTICLES OF ASSOCIATION
ASML HOLDING N.V.
ASML Holding N.V. (“ASML”) proposes to amend its articles of association in accordance with the draft articles of association included in this triptych. The proposals are also explained in the agenda and notes thereto relating to the annual general meeting of ASML to be held on 29 April 2022.
The proposed changes can be categorised as follows:
| (i) | changes relating to ASML’s capital structure, including the removal of the class of ordinary shares B; |
| (ii) | changes to the provisions for the board of management and supervisory board on conflicts of interest and situations where members are prevented from acting or failing to act; and |
| (iii) | an update of the articles of association, also reflecting recent and upcoming changes in applicable law and regulations. |
This triptych contains the amendments proposed in connection with the amendment of the articles of association. The first column sets out the current text of the articles of association. The second column contains the proposed amendments compared to the current text of the articles of association. The third column provides an explanation to the proposed amendments.
1 This is an unofficial translation of the prevailing Dutch version of this triptych. The Dutch triptych is also available and can be viewed and downloaded via www.asml.com. In the event of any differences, either in interpretation or otherwise between this English translation and the Dutch version, the Dutch language will prevail.
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THE ARTICLES OF ASSOCIATION OF
ASML HOLDING N.V.
CURRENT TEXT AND PROPOSED TEXT
| Current text | Proposed text | Explanation | ||
| Name and seat. Article 1. |
Name and seat. Article 1. |
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| 1.1. The name of the company is: ASML Holding N.V. |
1.1. The name of the company is: ASML Holding N.V. | |||
| 1.2. It has its corporate seat in Veldhoven. |
1.2. It has its corporate seat in Veldhoven. | |||
| 1.3. The provisions of sections 2:158 to 2:162 inclusive and 2:164 of the Dutch Civil Code shall apply to the company. |
1.3. The provisions of sections 2:158 to 2:162 inclusive and 2:164 of the Dutch Civil Code shall apply to the company. | |||
| Objects. Article 2. |
Objects. Article 2. |
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| The objects of the company are to establish, participate in, administer and finance companies and enterprises engaged in the development, manufacture and trading of products which are used for the production of semi-conductors especially lithographic products and systems, and the development and exploitation of technical and other expertise in the field of or in connection with the products and systems referred to above, and to do everything pertaining thereto or connected therewith, including to perform or have performed industrial, commercial and financial activities, to perform or have performed services in general, all this in the widest sense. | The objects of the company are to establish, participate in, administer and finance companies and enterprises including, in particular, companies and enterprises engaged in the development, manufacture and trading of products which are used for the production of semi-conductors, especially lithographic products and systems, and the development and exploitation of technical and other expertise in the field of or in connection with the products and systems referred to above, and to do everything pertaining thereto or connected therewith, including to perform or have performed industrial, commercial and financial activities, to perform or have performed services in general, all this in the widest sense. | Clarification of objects. | ||
| Share capital and shares. Article 3. |
Share capital and shares. Article 3. |
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| 3.1. The authorized share capital of the company amounts to one hundred twenty-six million euro (EUR 126,000,000), divided into six hundred ninety-nine million nine hundred ninety-nine thousand (699,999,000) ordinary shares (“ordinary shares”) with a par value of nine eurocent |
3.1. The authorized share capital of the company amounts to one hundred twenty-six million euro
(EUR 126,000,000), divided into |
Currently no ordinary shares B are outstanding and the ability for shareholders to request conversion of fractions into ordinary shares B |
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| Current text | Proposed text | Explanation | ||
| (EUR 0.09) each; nine thousand (9,000) ordinary shares B (“ordinary shares B”) with a par value of one eurocent (EUR 0.01) each and seven hundred million (700,000,000) cumulative preference shares (“preference shares”) with a par value of nine eurocents (EUR 0.09) each. |
eurocent (EUR 0.09)
each |
lapsed in 2013. It is therefore proposed to remove the ordinary class B shares and the provisions relating to such shares. This also results in a simplification of the share capital on the number of votes per share, also see article 33.1. | ||
| 3.2. Where in these articles of association reference is made to shares and shareholders, this shall include the shares of each class as well as the holders of shares of each class respectively, unless explicitly provided otherwise. |
3.2. Where in these articles of association reference is made to shares and shareholders, this shall include the shares of each class as well as the holders of shares of each class respectively, unless explicitly provided otherwise. | |||
| 3.3. Where in these articles of association reference is made to ordinary shares, this shall include ordinary shares and ordinary shares B, unless explicitly provided otherwise. |
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| Issuance of shares. Article 4. |
Issuance of shares. Article 4. |
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| 4.1. The board of management shall have the power to issue shares if and insofar as the board of management has been designated by the general meeting as the authorized body for this purpose. The board of management requires the approval of the supervisory board for a resolution with respect to such issuance. A designation as referred to above shall only be effective for a specific period not exceeding five years and may be extended for no longer than five years on each occasion. |
4.1. The board of management shall have the power to issue shares if and insofar as the board of management has been designated by the general meeting as the authorized body for this purpose. The board of management requires the approval of the supervisory board for a resolution with respect to such issuance. A designation as referred to above shall only be effective for a specific period not exceeding five years and may be extended for no longer than five years on each occasion. |
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| 4.2. If and insofar as a designation as referred to in the first paragraph is not in force, the general meeting shall have the power, upon the proposal of the board of management – which proposal must be approved by the supervisory board – to resolve to issue shares. |
4.2. If and insofar as a designation as referred to in the first paragraph is not in force, the general meeting shall have the power, upon the proposal of the board of management – which proposal must be approved by the supervisory board – to resolve to issue shares. |
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| Current text | Proposed text | Explanation | ||
| 4.3. In the event of an issuance of ordinary shares against payment in cash, holders of ordinary shares shall have a pre-emptive right in proportion to the aggregate nominal amount of the number of ordinary shares held by them. In the event of an issuance of ordinary shares issued against payment other than in cash, pre-emptive rights shall not exist. The board of management shall have the power to resolve to restrict or exclude the pre-emptive rights of these shareholders, if and insofar as the board of management has also been designated by the general meeting for this purpose as the authorized body for the period of such designation. The provisions of the second and third full sentences of the first paragraph shall apply correspondingly. |
4.3. In the event of an issuance of ordinary shares against payment in cash, holders of ordinary shares shall have a pre-emptive right in proportion to the aggregate nominal amount of the number of ordinary shares held by them. In the event of an issuance of ordinary shares issued against payment other than in cash, pre-emptive rights shall not exist. The board of management shall have the power to resolve to restrict or exclude the pre-emptive rights of these shareholders, if and insofar as the board of management has also been designated by the general meeting for this purpose as the authorized body for the period of such designation. The provisions of the second and third full sentences of the first paragraph shall apply correspondingly. |
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| 4.4. If and insofar as a designation as referred to in the third paragraph of this article is not in force, the general meeting shall have the power, upon the proposal of the board of management – which proposal must be approved by the supervisory board – to resolve to restrict or exclude the pre-emptive rights of the holders of ordinary shares. |
4.4. If and insofar as a designation as referred to in the third paragraph of this article is not in force, the general meeting shall have the power, upon the proposal of the board of management – which proposal must be approved by the supervisory board – to resolve to restrict or exclude the pre-emptive rights of the holders of ordinary shares. |
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| 4.5. A resolution of the general meeting in accordance with the third or fourth paragraph of this article requires a majority of at least two thirds of the votes cast if less than one half of the issued share capital is represented at the meeting. |
4.5. A resolution of the general meeting in accordance with the third or fourth paragraph of this article requires a majority of at least two thirds of the votes cast if less than one half of the issued share capital is represented at the meeting. |
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| 4.6. In order for resolutions of the general meeting to issue shares or to designate the board of management, as referred to in paragraph 1 and 2 of this article, to be valid, a prior or simultaneous resolution granting approval is required from each group of holders of shares of the same class whose rights are adversely affected by the issuance. |
4.6. In order for resolutions of the general meeting to issue shares or to designate the board of management, as referred to in paragraph 1 and 2 of this article, to be valid, a prior or simultaneous resolution granting approval is required from each group of holders of shares of the same class whose rights are adversely affected by the issuance. |
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| Current text | Proposed text | Explanation | ||
| 4.7. The ordinary shares must be paid up in full when they are taken. At least a quarter of the par value shall be paid on preference shares when they are taken. Further payment on the preference shares shall be made within one month after the board of management, subject to the approval of the supervisory board, has made a corresponding request in writing to the shareholders concerned. |
4.7. The ordinary shares must be paid up in full when they are taken. At least a quarter of the par value shall be paid on preference shares when they are taken. Further payment on the preference shares shall be made within one month after the board of management, subject to the approval of the supervisory board, has made a corresponding request in writing to the shareholders concerned. |
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| 4.8. Payment must be made in cash, unless another manner of contribution has been agreed upon. Payment in cash may be made in a foreign currency, subject to the company’s consent. The payment obligation may be fulfilled by payment in a foreign currency for the amount in Dutch currency for which the amount so paid is freely exchangeable, determined using the exchange rate on the day of payment or, after applying the provisions of the next sentence, on the day mentioned therein. The company may request that payment shall be made against the exchange rate on a certain day within two months before the last day on which payment must be made, provided the shares or depositary receipts therefor shall be recorded forthwith after the issuance in a price list of a stock exchange outside the Netherlands. |
4.8. Payment must be made in cash, unless another manner of contribution has been agreed upon. Payment in cash may be made in a foreign currency, subject to the company’s consent. The payment obligation may be fulfilled by payment in a foreign currency for the amount in Dutch currency for which the amount so paid is freely exchangeable, determined using the exchange rate on the day of payment or, after applying the provisions of the next sentence, on the day mentioned therein. The company may request that payment shall be made against the exchange rate on a certain day within two months before the last day on which payment must be made, provided the shares or depositary receipts therefor shall be recorded forthwith after the issuance in a price list of a stock exchange outside the Netherlands. |
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| 4.9. The provisions of this article shall apply accordingly to the granting of rights to subscribe for shares, but shall not apply to issuance of shares to a person who exercises a right to subscribe for shares that was previously granted. The board of management shall have the power to issue such shares. |
4.9. The provisions of this article shall apply accordingly to the granting of rights to subscribe for shares, but shall not apply to issuance of shares to a person who exercises a right to subscribe for shares that was previously granted. The board of management shall have the power to issue such shares. |
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| Current text | Proposed text | Explanation | ||
| Acquisition/Disposal of shares in its own share capital. Article 5. |
Acquisition/Disposal of shares in its own share capital. Reduction of share capital. Article 5. |
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| 5.1. Subject to authorization by the general meeting and with due observance of the other provisions of section 2:98 of the Dutch Civil Code, the board of management may cause the company to acquire for consideration fully paid up shares in its own share capital. |
5.1. Subject to authorization by the general meeting and with due observance of the other provisions of section 2:98 of the Dutch Civil Code, the board of management may cause the company to acquire for consideration fully paid up shares in its own share capital. |
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| 5.2. Shares thus acquired may again be disposed of. The board of management shall not acquire shares in the company’s own share capital as referred to above – where an authorization as referred to above has been granted – or dispose of such shares without the approval of the supervisory board. If depositary receipts for shares in the company have been issued, such depositary receipts shall be viewed as shares for the purpose of the provisions of this paragraph and the previous paragraph. |
5.2. Shares thus acquired may again be disposed of. The board of management shall not acquire shares in the company’s own share capital as referred to above – where an authorization as referred to above has been granted – or dispose of such shares without the approval of the supervisory board. If depositary receipts for shares in the company have been issued, such depositary receipts shall be viewed as shares for the purpose of the provisions of this paragraph and the previous paragraph. |
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| 5.3. In the general meeting no votes may be cast on a share held by the company or a subsidiary or for a share for which one of them holds depositary receipts. Nonetheless, the holders of a right of usufruct and the holders of a right of pledge on shares held by the company or a subsidiary are not excluded from the right to vote on of such shares if the right of usufruct or the right of pledge was granted prior to the time such share was held by the company or the subsidiary. Neither the company nor a subsidiary may cast votes in respect of a share for which it holds a right of usufruct or a right of pledge. Shares which are not entitled to voting rights pursuant to the provisions of law or this paragraph shall not be taken into account when determining to what extent: the shareholders cast votes; the shareholders are present or represented; or the share capital has been provided or is represented. |
5.3. In the general meeting no votes may be cast on a share held by the company or a subsidiary or for a share for which one of them holds depositary receipts. Nonetheless, the holders of a right of usufruct and the holders of a right of pledge on shares held by the company or a subsidiary are not excluded from the right to vote on such shares if the right of usufruct or the right of pledge was granted prior to the time such share was held by the company or the subsidiary. Neither the company nor a subsidiary may cast votes in respect of a share for which it holds a right of usufruct or a right of pledge. Shares which are not entitled to voting rights pursuant to the provisions of law or this paragraph shall not be taken into account when determining to what extent: the shareholders cast votes; the shareholders are present or represented; or the share capital has been provided or is represented. |
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| Current text | Proposed text | Explanation | ||
| 5.4. Upon the proposal of the board of management, which proposal must have the prior approval of the supervisory board, the general meeting shall have the power to resolve to reduce the issued share capital: - by cancelling shares acquired by the company in its own share capital; - reducing the par value of the shares by amending the articles of association, with partial repayment on those shares; - cancelling preference shares, with repayment on those preference shares; or - releasing from the obligation to make further payment on the preference shares upon implementation of a resolution to reduce the par value of the shares, in compliance with relevant provisions of the law. |
5.4. Upon the proposal of the board of management, which proposal must have the prior approval of the supervisory board, the general meeting shall have the power to resolve to reduce the issued share capital: - by cancelling shares acquired by the company in its own share capital; - reducing the par value of the shares by amending the articles of association - cancelling preference shares, with repayment on those preference shares; or - releasing from the obligation to make further payment on the preference shares upon implementation of a resolution to reduce the par value of the shares, in compliance with relevant provisions of the law. |
Technical clarification; reduction par value can either result in repayment or addition to reserves. | ||
| Shares, share certificates and share register. Article 6. |
Shares, share certificates and share register. Article 6. |
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| 6.1. The shares shall be in registered form. No share certificates shall be issued for the preference shares and the ordinary shares of type I, as referred to in the next paragraph. |
6.1. The shares shall be in registered form. No share certificates shall be issued for the preference shares and the ordinary shares of type I, as referred to in the next paragraph. |
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| 6.2. Ordinary shares shall be available: - in the form of an entry in the share register without issuance of a share certificate (such shares are referred to in these articles of association as shares of type I); - and, to the extent the board of management so decides, an entry in the share register with the issuance of a share certificate, which share certificate shall consist of a scrip without dividend sheet (such shares and share certificates are referred to in these articles of association as shares and share certificates of type II). |
6.2. Ordinary shares shall be available: - in the form of an entry in the share register without issuance of a share certificate (such shares are referred to in these articles of association as shares of type I); - and, to the extent the board of management so decides, an entry in the share register with the issuance of a share certificate, which share certificate shall consist of a scrip without dividend sheet (such shares and share certificates are referred to in these articles of association as shares and share certificates of type II). |
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| Current text | Proposed text | Explanation | ||
| 6.3. The board of management may decide that the registration of ordinary shares of type I shall take place for one or more numbers of shares to be further determined by it. |
6.3. The board of management may decide that the registration of ordinary shares of type I shall take place for one or more numbers of shares to be further determined by it. |
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| 6.4. Share certificates shall be available in such numbers of ordinary shares as the board of management shall determine. |
6.4. Share certificates shall be available in such numbers of ordinary shares as the board of management shall determine. |
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| 6.5. All share certificates shall be signed by or on behalf of two board of management members, as well as countersigned by one or more persons to be designated by the board of management for that purpose; the signatures may be effected by printed fax. |
6.5. All share certificates shall be signed by or on behalf of two board of management members, as
well as countersigned by one or more persons to be designated by the board of management for that purpose; the signatures may be effected by a printed
|
Technical update. | ||
| 6.6. All share certificates shall be identified by numbers and/or letters in a manner to be determined by the board of management. |
6.6. All share certificates shall be identified by numbers and/or letters in a manner to be determined by the board of management. |
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| 6.7. The board of management may determine, provided with the approval of the supervisory board, that for the trade on foreign stock exchanges share certificates will be issued that comply with the requirements set by the foreign stock exchange(s). |
6.7. The board of management may determine, provided with the approval of the supervisory board, that for the trade on foreign stock exchanges share certificates will be issued that comply with the requirements set by the foreign stock exchange(s). |
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| 6.8. “Share certificate” shall include in these articles of association a certificate of more than one share. |
6.8. “Share certificate” shall include in these articles of association a certificate of more than one share. |
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| 6.9. The company can, pursuant to a resolution of the board of management, subject to the approval of the supervisory board, cooperate in the issuance of certificates in bearer form. |
6.9. The company can, pursuant to a resolution of the board of management, subject to the approval of the supervisory board, cooperate in the issuance of certificates in bearer form. |
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| Current text | Proposed text | Explanation | ||
| Share certificates. Article 7. |
Share certificates. Article 7. |
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| 7.1. Upon a written request from a person entitled to such certificates, share certificates that are missing or damaged, may be replaced by new certificates, or by duplicates bearing the same numbers and/or letters, provided that the applicant proves his title and – in the case of loss – the loss, to the satisfaction of the board of management, and further subject to such conditions as the board of management may deem necessary. |
7.1. Upon a written request from a person entitled to such certificates, share certificates that are missing or damaged, may be replaced by new certificates, or by duplicates bearing the same numbers and/or letters, provided that the applicant proves his title and – in the case of loss – the loss, to the satisfaction of the board of management, and further subject to such conditions as the board of management may deem necessary. |
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| 7.2. The issuance of new certificates or duplicates shall cause the original documents to be invalid. |
7.2. The issuance of new certificates or duplicates shall cause the original documents to be invalid. |
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| 7.3. The issuance of new certificates or duplicates for share certificates may in appropriate cases, at the discretion of the board of management, be published in newspapers to be determined by the board of management. |
7.3. The issuance of new certificates or duplicates for share certificates may in appropriate cases, at the discretion of the board of management, be published in newspapers to be determined by the board of management. |
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| Shareholders’ register. Article 8. |
Shareholders’ register. Article 8. |
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| 8.1. With due observance of the provisions of law a share register shall be kept by or on behalf of the company, which register shall be regularly updated and which, at the discretion of the board of management, may, in whole or in part, be maintained in more than one copy and at more than one place. At least one copy will be maintained at the office of the company. |
8.1. With due observance of the provisions of law a share register shall be kept by or on behalf of the company, which register shall be regularly updated and which, at the discretion of the board of management, may, in whole or in part, be maintained in more than one copy and at more than one place. At least one copy will be maintained at the office of the company. |
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| 8.2. Each shareholder’s name, his address, the date on which the shares were acquired, the number and the type of the shares held by him, the date of acknowledgement or service, the amount paid up on each share, and all other information that must be registered pursuant to the provisions of law, as well as such further information as the board of management shall deem desirable, whether at the request of a shareholder or not, shall be entered in the share register. |
8.2. Each shareholder’s name, his address, the date on which the shares were acquired, the number and the type of the shares held by him, the date of acknowledgement or service, the amount paid up on each share, and all other information that must be registered pursuant to the provisions of law, as well as such further information as the board of management shall deem desirable, whether at the request of a shareholder or not, shall be entered in the share register. |
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| Current text | Proposed text | Explanation | ||
| 8.3. The board of management shall determine the form and the contents of the share register with due observance of the provisions of the first two paragraphs of this article. The board of management may determine that the share register shall vary as to its form and contents according to whether they relate to shares of type I or to shares of type II. |
8.3. The board of management shall determine the form and the contents of the share register with due observance of the provisions of the first two paragraphs of this article. The board of management may determine that the share register shall vary as to its form and contents according to whether they relate to shares of type I or to shares of type II. |
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| 8.4 Upon request, a shareholder shall be given free of charge a declaration of what is stated in the share register concerning the shares registered in his name, which statement may be signed by special proxy holders authorized thereto by the board of management. |
8.4 Upon request, a shareholder shall be given free of charge a declaration of what is stated in the share register concerning the shares registered in his name, which statement may be signed by special proxy holders authorized thereto by the board of management. |
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| 8.5 The provisions of the preceding paragraphs shall apply accordingly to those who hold a right of usufruct or a right of pledge on one or more shares, in addition to any other information required to be registered in the share register pursuant to law. |
8.5 The provisions of the preceding paragraphs shall apply accordingly to those who hold a right of usufruct or a right of pledge on one or more shares, in addition to any other information required to be registered in the share register pursuant to law. |
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| Exchange of shares. Article 9. |
Exchange of shares. Article 9. |
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| 9.1. Subject to the provisions of article 6, a holder of an entry in the share register for one or more shares of type I may, upon his request, obtain one or more share certificates of type II up to an equal nominal amount. |
9.1. Subject to the provisions of article 6, a holder of an entry in the share register for one or more shares of type I may, upon his request, obtain one or more share certificates of type II up to an equal nominal amount. |
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| 9.2. Subject to the provisions of article 6, a holder of a share certificate of type II registered in his name may, after submitting the share certificate to the company, upon his request obtain an entry in the share register for one or more shares of type I up to an equal nominal amount. |
9.2. Subject to the provisions of article 6, a holder of a share certificate of type II registered in his name may, after submitting the share certificate to the company, upon his request obtain an entry in the share register for one or more shares of type I up to an equal nominal amount. |
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| Current text | Proposed text | Explanation | ||
| 9.3. The board of management may demand that a request as referred to in this article shall be made on a form to be supplied by the company free of charge, which shall be signed by the applicant. |
9.3. The board of management may demand that a request as referred to in this article shall be made on a form to be supplied by the company free of charge, which shall be signed by the applicant. |
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| Transfer of shares. Article 10. |
Transfer of shares. Article 10. |
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| 10.1. Unless the law provides otherwise and except as provided by the provisions of the following paragraphs of this article, the transfer of a share shall require an instrument intended for such purpose and, unless the company itself is a party to the transaction, the written acknowledgement of the transfer by the company; service upon the company of such instrument of transfer or of a copy or extract thereof signed as a true copy by the notary or the transferor shall be considered to have the same effect as an acknowledgement. |
10.1. Unless the law provides otherwise and except as provided by the provisions of the following paragraphs of this article, the transfer of a share shall require an instrument intended for such purpose and, unless the company itself is a party to the transaction, the written acknowledgement of the transfer by the company; service upon the company of such instrument of transfer or of a copy or extract thereof signed as a true copy by the notary or the transferor shall be considered to have the same effect as an acknowledgement. |
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| 10.2. The transfer of a preference share can only take place with due observance of the provisions of article 11. |
10.2. The transfer of a preference share can only take place with due observance of the provisions of article 11. |
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| 10.3. In cases where a share of type I is transferred, an instrument of transfer, signed by both parties to the transfer, on a form to be supplied by the company free of charge, must be submitted to the company. |
10.3. In cases where a share of type I is transferred, an instrument of transfer, signed by both parties to the transfer, on a form to be supplied by the company free of charge, must be submitted to the company. |
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| 10.4. In cases where a share for which a certificate of type II has been issued is transferred, the share certificate must be submitted to the company, provided that an instrument of transfer as referred to in the previous paragraph, printed on the back of the share certificate, has been duly completed and signed by or on behalf of the transferor, or a separate instrument in substantially the same form is submitted together with the share certificate. |
10.4. In cases where a share for which a certificate of type II has been issued is transferred, the share certificate must be submitted to the company, provided that an instrument of transfer as referred to in the previous paragraph, printed on the back of the share certificate, has been duly completed and signed by or on behalf of the transferor, or a separate instrument in substantially the same form is submitted together with the share certificate. |
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| 10.5. If a transfer of a share of type II has been effected by service of an instrument of transfer upon the company, the company shall, at the discretion of the board of management, either endorse the transfer on the share certificate or cancel the share certificate and issue to the transferee one or more share certificates registered in name up to an equal nominal amount. |
10.5. If a transfer of a share of type II has been effected by service of an instrument of transfer upon the company, the company shall, at the discretion of the board of management, either endorse the transfer on the share certificate or cancel the share certificate and issue to the transferee one or more share certificates registered in name up to an equal nominal amount. |
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| 10.6. The company’s written acknowledgement of a transfer of a share of type II shall, at the discretion of the board of management, be effected either by endorsement of the transfer on the share certificate as proof of the acknowledgement or by the issuance to the transferee of one or more share certificates registered in name up to an equal nominal amount. |
10.6. The company’s written acknowledgement of a transfer of a share of type II shall, at the discretion of the board of management, be effected either by endorsement of the transfer on the share certificate as proof of the acknowledgement or by the issuance to the transferee of one or more share certificates registered in name up to an equal nominal amount. |
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| 10.7. If a share is being transferred for inclusion in a joint deposit, as meant in the Securities Book-Entry Transfer Act (“Wge”) (“Joint Deposit”), the transfer shall be accepted by the intermediary, as meant in the Wge (“Intermediary”) in question. In cases where a share is being transferred for inclusion in the giro deposit, as meant in the Wge (“Giro Deposit”), the transfer shall be accepted by the central institute, as meant in the Wge (“Central Institute”). Transfer and acceptation can take place without the cooperation of the other participants in the Joint Deposit and without the cooperation of other Intermediaries. |
10.7. If a share is being transferred for inclusion in a joint deposit, as meant in the Securities Book-Entry Transfer Act (“Wge”) (“Joint Deposit”), the transfer shall be accepted by the intermediary, as meant in the Wge (“Intermediary”) in question. In cases where a share is being transferred for inclusion in the giro deposit, as meant in the Wge (“Giro Deposit”), the transfer shall be accepted by the central institute, as meant in the Wge (“Central Institute”). Transfer and acceptation can take place without the cooperation of the other participants in the Joint Deposit and without the cooperation of other Intermediaries. |
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| 10.8. An affiliated institution, as meant in the Wge, is empowered to transfer shares for inclusion in the Giro Deposit. An Intermediary is, insofar as deduction is possible pursuant to the Wge, empowered to deduct shares from the Joint Deposit. The Central Institute is, insofar as deduction is possible pursuant to the Wge, empowered to deduct shares from the Giro Deposit for inclusion in a Joint Deposit. |
10.8. An affiliated institution, as meant in the Wge, is empowered to transfer shares for inclusion in the Giro Deposit. An Intermediary is, insofar as deduction is possible pursuant to the Wge, empowered to deduct shares from the Joint Deposit. The Central Institute is, insofar as deduction is possible pursuant to the Wge, empowered to deduct shares from the Giro Deposit for inclusion in a Joint Deposit. |
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| Current text | Proposed text | Explanation | ||
| 10.9. If the transfer of an ordinary share does not take place in accordance with the provisions of paragraphs 3, 4, 7 and 8 of this article, the transfer of an ordinary share can only take place with the permission of the board of management. The board of management may make its permission subject to such conditions as the board of management may deem necessary or desirable. The applicant shall always be entitled to demand that said permission be granted on the condition that transfer takes place to a person designated by the board of management. The permission shall be deemed to have been granted, should the board of management not have decided on granting permission for the request within six weeks of being requested to do so. |
10.9. If the transfer of an ordinary share does not take place in accordance with the provisions of paragraphs 3, 4, 7 and 8 of this article, the transfer of an ordinary share can only take place with the permission of the board of management. The board of management may make its permission subject to such conditions as the board of management may deem necessary or desirable. The applicant shall always be entitled to demand that said permission be granted on the condition that transfer takes place to a person designated by the board of management. The permission shall be deemed to have been granted, should the board of management not have decided on granting permission for the request within six weeks of being requested to do so. |
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| 10.10. The provisions of the preceding paragraphs of this article shall apply correspondingly to the allotment of shares in the event of a division of any share constituting joint property, the transfer of a share as a consequence of a writ of execution and the creation of limited rights on a share. |
10.10. The provisions of the preceding paragraphs of this article shall apply correspondingly to the allotment of shares in the event of a division of any share constituting joint property, the transfer of a share as a consequence of a writ of execution and the creation of limited rights on a share. |
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| 10.11. The submission of requests and the submission of documents referred to in articles 5 to 9 inclusive shall be made at a place to be determined by the board of management. Different places may be determined the different types of shares. |
10.11. The submission of requests and the submission of documents referred to in articles 5 to 9 inclusive shall be made at a place to be determined by the board of management. Different places may be determined the different types of shares. |
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| 10.12. The company is entitled to charge amounts, at no more than cost, and to be determined by the board of management, to those persons who request any services to be carried out pursuant to articles 5 to 9 inclusive. |
10.12. The company is entitled to charge amounts, at no more than cost, and to be determined by the board of management, to those persons who request any services to be carried out pursuant to articles 5 to 9 inclusive. |
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| Current text | Proposed text | Explanation | ||
| Preference shares. Article 11. |
Preference shares. Article 11. |
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| 11.1. The approval of the supervisory board shall be required for every transfer of preference shares. Said approval shall be requested in writing. |
11.1. The approval of the supervisory board shall be required for every transfer of preference shares. Said approval shall be requested in writing. |
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| 11.2. If approval is refused, the supervisory board is obliged to designate one or more parties who are willing and able to acquire on payment of cash all the preference shares, to which the request relates at a price to be fixed by the transferor and the supervisory board in joint consultation within two months after said designation. |
11.2. If approval is refused, the supervisory board is obliged to designate one or more parties who are willing and able to acquire on payment of cash all the preference shares, to which the request relates at a price to be fixed by the transferor and the supervisory board in joint consultation within two months after said designation. |
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| 11.3. If the transferor has not received written notice from the company within three months after receipt by the company of the request to approve the proposed transfer, or a timely written rejection has not been accompanied at the same time by the designation of one or more interested parties as referred to in paragraph 2, the approval of the transfer shall be deemed to have been granted after the above-mentioned period has elapsed or after receipt of the notice of rejection. |
11.3. If the transferor has not received written notice from the company within three months after receipt by the company of the request to approve the proposed transfer, or a timely written rejection has not been accompanied at the same time by the designation of one or more interested parties as referred to in paragraph 2, the approval of the transfer shall be deemed to have been granted after the above-mentioned period has elapsed or after receipt of the notice of rejection. |
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| 11.4. If no agreement has been reached between the transferor and the board of management regarding the price referred to in paragraph 2 within two months after the rejection, said price shall be fixed by an expert to be designated by the transferor and the board of management in joint consultation or, in the absence of agreement thereon within three months after the rejection, by the Chairman of the Chamber of Commerce and Industry in the municipality where the company has its de facto address, at the request of either party. |
11.4. If no agreement has been reached between the transferor and the board of management regarding the price
referred to in paragraph 2 within two months after the rejection, said price shall be fixed by an expert to be designated by the transferor and the board of management in joint consultation or, in the absence of agreement thereon within three months
after the rejection, by the |
As the chairperson of the Chamber of Commerce no longer fulfils this role, it is proposed to refer to the chairperson of the Royal Dutch Association of Civil-law Notaries instead. |
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| Current text | Proposed text | Explanation | ||
| 11.5. The transferor shall have the right to abandon the transfer, provided that he informs the board of management thereof in writing within one month after he has been informed of the name of the designated party or parties and of the price fixed. |
11.5. The transferor shall have the right to abandon the transfer, provided that he informs the board of management thereof in writing within one month after he has been informed of the name of the designated party or parties and of the price fixed. |
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| 11.6. If a transfer has been approved in accordance with paragraph 1 or paragraph 3, the transferor shall be entitled to transfer all the preference shares, to which his request related, to the party named in the request, during a period of three months after said approval. |
11.6. If a transfer has been approved in accordance with paragraph 1 or paragraph 3, the transferor shall be entitled to transfer all the preference shares, to which his request related, to the party named in the request, during a period of three months after said approval. |
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| 11.7. The costs to the company in connection with the transfer may be charged to the party acquiring the shares. |
11.7. The costs to the company in connection with the transfer may be charged to the party acquiring the shares. |
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| 11.8. Any transfer of a preference share shall be entered in the share register. |
11.8. Any transfer of a preference share shall be entered in the share register. |
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| Holders of a right of usufruct, holders of a right of pledge and holders of depositary receipts. Article 12. |
Holders of a right of usufruct, holders of a right of pledge and holders of depositary receipts. Article 12. |
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| 12.1. No right of pledge can be established on the preference shares. |
12.1. No right of pledge can be established on the preference shares. |
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| 12.2. The holder of a right of usufruct who in accordance with the provisions of section 2:88 of the Dutch Civil Code, does not have the right to vote and the holder of a right of pledge who in accordance with the provisions of section 2:89 of the Dutch Civil Code, does not have the right to vote, shall not have the rights conferred by law on the holders of depositary receipts for shares issued with the cooperation of the company. |
12.2. The holder of a right of usufruct who in accordance with the provisions of section 2:88 of the Dutch Civil Code, does not have the right to vote and the holder of a right of pledge who in accordance with the provisions of section 2:89 of the Dutch Civil Code, does not have the right to vote, shall not have the rights conferred by law on the holders of depositary receipts for shares issued with the cooperation of the company. |
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| Current text | Proposed text | Explanation | ||
| 12.3. Where in these articles of association reference is made to others entitled to attend meetings, this shall include the holders of depositary receipts for shares issued with the cooperation of the company and the persons who, under the provisions of section 2:88 paragraph 4 or section 2:89 of the Dutch Civil Code, have the rights conferred by law on holders of depositary receipts for shares issued with the cooperation of the company. |
12.3. Where in these articles of association reference is made to others entitled to attend meetings, this shall include the holders of depositary receipts for shares issued with the cooperation of the company and the persons who, under the provisions of section 2:88 paragraph 4 or section 2:89 of the Dutch Civil Code, have the rights conferred by law on holders of depositary receipts for shares issued with the cooperation of the company. |
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| Board of management. Appointment. Article 13. |
Board of management. Appointment. Article 13. |
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| 13.1. The company shall be managed by a board of management consisting of at least two members, under the supervision of a supervisory board. |
13.1. The company shall be managed by a board of management consisting of at least two members, under the supervision of a supervisory board. |
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| 13.2. The board of management members shall be appointed by the supervisory board. The supervisory board shall inform the general meeting of the intended appointment of a board of management member. The provisions of section 2:158 paragraph 10 of the Dutch Civil Code shall apply correspondingly. |
13.2. The board of management members shall be appointed by the supervisory board. The supervisory board shall inform the general meeting of the intended appointment of a board of management member. The provisions of section 2:158 paragraph 10 of the Dutch Civil Code shall apply correspondingly. |
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| 13.3. A board of management member shall be appointed for a maximum period of four years provided, however, that unless such board of management member has resigned at an earlier date, his term of office shall lapse on the day of the general meeting, to be held in the fourth year after the year of his appointment. A board of management member may be re-appointed with due observance of the preceding sentence. |
13.3. A board of management member shall be appointed for a maximum period of four years provided, however, that
unless such board of management member has resigned at an earlier date, his or her term of office shall lapse A board of management member may be re-appointed with due observance of the preceding sentence. |
Technical changes. | ||
| 13.4. If the number of board of management members falls below two, the powers of the board of management shall remain unaffected. In such case, a meeting of the supervisory board shall be held forthwith to fill the vacancies in the board of management. |
13.4. If the number of board of management members falls below two, the powers of the board of management shall remain unaffected. In such case, a meeting of the supervisory board shall be held forthwith to fill the vacancies in the board of management. |
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| Current text | Proposed text | Explanation | ||
| 13.5. With due observance of the minimum referred to in paragraph 1 of this article, the number of board of management members shall be determined by the supervisory board. |
13.5. With due observance of the minimum referred to in paragraph 1 of this article, the number of board of management members shall be determined by the supervisory board. |
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| Board of management; suspension and removal. Article 14. |
Board of management; suspension and removal. Article 14. |
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| 14.1. Board of management members may be suspended or removed by the supervisory board. |
14.1. Board of management members may be suspended or removed by the supervisory board. |
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| 14.2. The supervisory board shall not remove a board of management member until the general meeting has been heard in respect of the intended removal. |
14.2. The supervisory board shall not remove a board of management member until the general meeting has been heard in respect of the intended removal. |
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| 14.3. The board of management members may be suspended by the supervisory board either collectively or individually. Within three months of such suspension a general meeting shall be held to hear the general meeting in connection with the intended removal of the suspended board of management member. If such general meeting is not held within three months of the suspension, the suspension shall lapse. The person concerned shall be entitled to account for his or her actions at that meeting. |
14.3. The board of management members may be suspended by the supervisory board either collectively or individually. Within three months of such suspension a general meeting shall be held to hear the general meeting in connection with the intended removal of the suspended board of management member. If such general meeting is not held within three months of the suspension, the suspension shall lapse. The person concerned shall be entitled to account for his or her actions at that meeting. |
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| Representation. Article 15. |
Representation. Article 15. |
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| 15.1. The board of management as well as two members of the board of management acting jointly shall have the authority to represent the company. |
15.1. The board of management as well as two members of the board of management acting jointly shall have the authority to represent the company. |
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| 15.2. The board of management may grant to persons, whether or not employed by the company, the authority to represent the company and may determine the scope of such power of attorney as well as the title of such persons. |
15.2. The board of management may grant to persons, whether or not employed by the company, the authority to represent the company and may determine the scope of such power of attorney as well as the title of such persons. |
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| Current text | Proposed text | Explanation | ||
| 15.3. The board of management is authorized to perform the transactions as referred to in section 2:94 paragraph 1 of the Dutch Civil Code, to the extent such authority has not been explicitly excluded or limited pursuant to a provision of these articles of association. |
15.3. The board of management is authorized to perform the transactions as referred to in section 2:94 paragraph 1 of the Dutch Civil Code, to the extent such authority has not been explicitly excluded or limited pursuant to a provision of these articles of association. |
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| 15.4. If a member of the board of management, acting in his personal capacity, enters into an agreement with the company, or if he, acting in his personal capacity, conducts any litigation against the company, the company may be represented in that matter by one of the other members of the board of management, or by a member of the supervisory board designated by the supervisory board, unless the general meeting designates a person for that purpose or unless the law provides otherwise for such designation. Such a person may also be the member of the board of management in respect with whom the conflict of interest exists. If a member of the board of management has a conflict of interest with the company other than as referred to in the first sentence of this paragraph, he shall as each of the other members of the board of management have the power to represent the company, in accordance with the provisions of the first paragraph. |
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Paragraph deleted as this no longer reflects the Dutch law provisions on conflicts of interest. See 16.3 (new), below. | ||
| Board of management; decision process and internal rules and regulations. Article 16. |
Board of management; decision process and internal rules and regulations. Article 16. |
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| 16.1. The supervisory board shall appoint one of the board of management members as Chairman. |
16.1. The supervisory board shall appoint one of the board of management members as
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It is proposed to refer to “chairperson” instead of “chairman” and to include a reference to the vice-chairperson. |
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| Current text | Proposed text | Explanation | ||
| 16.2. Resolutions of the board of management shall be adopted by an absolute majority of votes cast. In case of a tie vote, the Chairman of the board of management shall have a casting vote. |
16.2. Resolutions of the board of management shall be adopted by an absolute majority of votes cast. In case of
a tie vote, the |
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16.3. If a board of management member has a direct or indirect personal conflict of interest with the company, he or she shall not participate in the deliberations and the decision-making process concerned in the board of management. If as a result no resolution of the board of management can be adopted, the resolution is to be adopted by the supervisory board. |
It is proposed to include a conflicts of interest provision in line with the current Dutch law provisions. | |||
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16.4. A statement signed by the chairperson or, if appointed, the vice-chairperson, of the board of management or two board of management members, to the effect that the board of management has adopted a particular resolution, shall constitute evidence of such resolution vis-à-vis third parties. |
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| 16.3. The board of management shall, subject to the approval of the supervisory board, adopt rules of the board of management. |
16. |
Update of reference. | ||
| Board of management; decision process. Article 17. |
Board of management; decision process. Article 17. |
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| 17.1. Without prejudice to the other provisions of these articles of association, resolutions of the board of management shall require the approval of the supervisory board concerning: a. issuance, including the granting of rights to subscribe for shares in the share capital of the company, and acquisition of shares in and debentures chargeable to the company or of debentures chargeable to a limited partnership or general partnership of which the company is a general partner with full liability; |
17.1. Without prejudice to the other provisions of these articles of association, resolutions of the board of management shall require the approval of the supervisory board concerning: a. issuance, including the granting of rights to subscribe for shares in the share capital of the company, and acquisition of shares in and debentures chargeable to the company or of debentures chargeable to a limited partnership or general partnership of which the company is a general partner with full liability; |
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| Current text | Proposed text | Explanation | ||
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b. cooperation in the issuance of depositary receipts for shares in the company; |
b. cooperation in the issuance of depositary receipts for shares in the company; |
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c. application for listing or for withdrawal of the listing of the documents referred to under a and b above in the price list of any stock exchange; |
c. application for listing or for withdrawal of the listing of the documents referred to under a and b above in the price list of any stock exchange; |
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d. entry into or termination of a continuing cooperation by the company or a dependent company with another legal entity or partnership or as general partner with full liability in a limited partnership or general partnership, if such cooperation or the termination thereof will materially affect the company; |
d. entry into or termination of a continuing cooperation by the company or a dependent company with another legal entity or partnership or as general partner with full liability in a limited partnership or general partnership, if such cooperation or the termination thereof will materially affect the company; |
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e. acquisition by the company or a dependent company of a direct or indirect participation in the share capital of another company, the value of which is at least equal to the sum of one quarter of the issued share capital and the reserves of the company, as shown in its balance sheet with explanatory notes, as well as any material change in the size of such participation; |
e. acquisition by the company or a dependent company of a direct or indirect participation in the share capital of another company, the value of which is at least equal to the sum of one quarter of the issued share capital and the reserves of the company, as shown in its balance sheet with explanatory notes, as well as any material change in the size of such participation; |
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f. Investments requiring an amount equal to at least one quarter of the issued share capital and reserves of the company, as shown in its balance sheet with explanatory notes; g. a proposal to amend the articles of association; |
f. Investments requiring an amount equal to at least one quarter of the issued share capital and reserves of the company, as shown in its balance sheet with explanatory notes; g. a proposal to amend the articles of association; |
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h. a proposal to dissolve the company or a proposal for a legal merger of the company; i. application for bankruptcy or for a moratorium of payments; |
h. a proposal to dissolve the company or a proposal for a legal merger of the company; i. application for bankruptcy or for a moratorium of payments; |
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j. termination of the employment of a considerable number of employees of the company or of a dependent company at the same time or within a short time-span; |
j. termination of the employment of a considerable number of employees of the company or of a dependent company at the same time or within a short time-span; |
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| Current text | Proposed text | Explanation | ||
| k. a far-reaching change in the working conditions of a considerable number of employees of the company or of a dependent company; l. a proposal to reduce the issued share capital. |
k. a far-reaching change in the working conditions of a considerable number of employees of the company or of a dependent company; l. a proposal to reduce the issued share capital. |
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| 17.2. The supervisory board may grant the approvals required pursuant to this article either for a specific transaction, or for a group of such transactions. |
17.2. The supervisory board may grant the approvals required pursuant to this article either for a specific transaction, or for a group of such transactions. |
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| 17.3. The supervisory board furthermore may decide that certain clearly defined resolutions from the board of management need to be submitted to the approval of the supervisory board. The supervisory board shall forthwith inform the board of management of such decision. Such resolutions shall be included in the rules and regulations as meant in article 16 paragraph 3. |
17.3. The supervisory board furthermore may decide that certain clearly defined resolutions from the board of
management need to be submitted to the approval of the supervisory board. The supervisory board shall forthwith inform the board of management of such decision. Such resolutions shall be included in the rules and regulations as meant in article 16
paragraph |
Update of reference. | ||
| 17.4. Without prejudice to any other applicable provision of these articles of association, the board of management shall also require the approval of the supervisory board and the general meeting for resolutions of the board of management regarding a significant change in the identity or nature of the company or the enterprise, including in any event: a. the transfer of the enterprise or practically the entire enterprise to a third party; b. to conclude or cancel any long-lasting co-operation by the company or a subsidiary (dochtermaatschappij) with any other legal person or company or as a fully liable general partner of a limited partnership or a general partnership, provided that such co-operation or its cancellation is of essential importance to the company; |
17.4. Without prejudice to any other applicable provision of these articles of association, the board of management shall also require the approval of the supervisory board and the general meeting for resolutions of the board of management regarding a significant change in the identity or nature of the company or the enterprise, including in any event: a. the transfer of the enterprise or practically the entire enterprise to a third party; b. to conclude or cancel any long-lasting co-operation by the company or a subsidiary (dochtermaatschappij) with any other legal person or company or as a fully liable general partner of a limited partnership or a general partnership, provided that such co-operation or its cancellation is of essential importance to the company; |
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| Current text | Proposed text | Explanation | ||
| c. to acquire or dispose of a participating interest in the capital of a company with a value of at least one-third of the sum of the assets according to the consolidated balance sheet with explanatory notes thereto according to the last adopted annual accounts of the company, by the company or a subsidiary (dochtermaatschappij). |
c. to acquire or dispose of a participating interest in the capital of a company with a value of at least one-third of the sum of the assets according to the consolidated balance sheet with explanatory notes thereto according to the last adopted annual accounts of the company, by the company or a subsidiary (dochtermaatschappij). |
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| 17.5. The absence of the approval of the supervisory board and the general meeting for a resolution referred to in this article shall neither effect the representative authority of the board of management nor the board of management members. |
17.5. The absence of the approval of the supervisory board and the general meeting for a resolution referred to in this article shall neither effect the representative authority of the board of management nor the board of management members. |
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| Board of management; absence or prevention from acting. Article 18. |
Board of management;
Article 18. |
Technical change. | ||
| If one or more board of management members are prevented from acting or are failing to act, the remaining members or the only remaining member shall temporarily be in charge of the management of the company. |
18.1. If one or more board of management members are prevented from acting or are failing to act, the remaining members or the only remaining member shall temporarily be in charge of the management of the company. The supervisory board may, however, provide for temporary replacements. “Prevented from acting” means that a board of management member is temporarily unable to perform his or her duties as a result of: a. suspension ; b. illness; or c. inaccessibility. In the case of illness or inaccessibility, this means that contact between the board of management member concerned and the company has not been possible for a period of five (5) days, unless the supervisory board sets a different term. |
Provision updated to align with Dutch legislation that is expected to enter into force later this year. Changes serve to clarify how to deal with the board of management members that are prevented from acting (for instance due to illness). |
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| Current text | Proposed text | Explanation | ||
| If all board of management members are prevented from acting or are failing to act, the supervisory board shall be temporarily in charge of the management of the company. In this event, the supervisory board may temporarily charge one or more persons, whether or not from among its members, with the management of the company. |
18.2. If all board of management members are
prevented from acting or are failing to act, the supervisory board shall be temporarily in charge of the management of the company. In this event, the supervisory board may also provide for
temporar |
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| Board of management; remuneration and indemnification. Article 19. |
Board of management; remuneration and indemnification. Article 19. |
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| 19.1. The policy regarding the remuneration of the board of management members will be adopted by the general meeting upon a proposal of the supervisory board. The proposal for the remuneration policy shall be made available in writing to the works council(s) designated for that purpose by law for its/their information at the same time as it is submitted to the general meeting. |
19.1. The policy regarding the remuneration of the board of management members will be adopted by the general meeting upon a proposal of the supervisory board. The proposal for the remuneration policy shall be made available in writing to the works council(s) designated for that purpose by law for its/their information at the same time as it is submitted to the general meeting. |
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| 19.2. The remuneration of the board of management members will, with due observance of the policy set out in paragraph 1, be determined by the supervisory board. The supervisory board will submit for approval by the general meeting a proposal regarding the arrangements for remuneration in the form of shares or rights to acquire shares. This proposal includes at least how many shares or rights to acquire shares may be awarded to the board of management members and which criteria apply to an award or modification. The absence of the approval of the general meeting shall not invalidate the representative authority of the supervisory board. |
19.2. The remuneration of the board of management members will, with due observance of the policy set out in paragraph 1, be determined by the supervisory board. The supervisory board will submit for approval by the general meeting a proposal regarding the arrangements for remuneration in the form of shares or rights to acquire shares. This proposal includes at least how many shares or rights to acquire shares may be awarded to board of management members and which criteria apply to an award or modification. The absence of the approval of the general meeting shall not invalidate the representative authority of the supervisory board. |
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| Current text | Proposed text | Explanation | ||
| 19.3. Current and former board of management members shall be reimbursed for: (i) expenses in relation to conducting a defence against claims for damages or conducting a defence in other legal proceedings; and (ii) any damages they may be ordered to pay, incurred due to acts or omissions in the performance of their tasks as board of management member or another function they fulfil at the request of the company. The company shall indemnify them against financial losses that are a direct result of the foregoing. No reimbursement will be awarded and no indemnification will be granted to the party concerned in case and to the extent that a court in the Netherlands irrevocably has established that the acts and omissions may be characterised as being wilfully misconducted or intentionally reckless, including seriously imputable, unless this would be in view of all circumstances of the case contrary to the reasonableness and fairness (redelijkheid en billijkheid). In addition, no reimbursement will be given to the extent that the financial losses are covered by an insurance and the insurer has settled the financial losses. On behalf of the party concerned, the company may take out liability insurance. By means of a written agreement the supervisory board may further implement the foregoing. |
19.3. Current and former board of management members shall be reimbursed for: (i) expenses in relation to conducting a defence against claims for damages or conducting a defence in other legal proceedings; and (ii) any damages they may be ordered to pay, incurred due to acts or omissions in the performance of their tasks as board of management member or another function they fulfil at the request of the company. The company shall indemnify them against financial losses that are a direct result of the foregoing. No reimbursement will be awarded and no indemnification will be granted to the party concerned in case and to the extent that a court in the Netherlands irrevocably has established that the acts and omissions may be characterised as being wilfully misconducted or intentionally reckless, including seriously imputable, unless this would be in view of all circumstances of the case contrary to the reasonableness and fairness (redelijkheid en billijkheid). In addition, no reimbursement will be given to the extent that the financial losses are covered by an insurance and the insurer has settled the financial losses. On behalf of the party concerned, the company may take out liability insurance. By means of a written agreement the supervisory board may further implement the foregoing. |
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| Current text | Proposed text | Explanation | ||
| Supervisory board, supervision on the board of management. Article 20. |
Supervisory board, supervision on the board of management. Article 20. |
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| 20.1. The supervisory board d is charged with the supervision of the policies of the board of management and the general course of affairs in the company and its affiliated enterprise. The supervisory board shall support the board of management with its advice. |
20.1. The supervisory board is charged with the supervision of the policies of the board of management and the general course of affairs in the company and its affiliated enterprise. The supervisory board shall support the board of management with its advice. |
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| 20.2. The board of management shall provide the supervisory board, in a timely manner, with the information it needs to carry out its duties. At least once per year, the board of management shall inform the supervisory board in writing in respect of the principles of the strategic policy, the general and financial risks and the management and control system of the company. The board of management shall at that time submit to the approval of the supervisory board: a. the operational and financial objectives of the company; b. the strategy designed to achieve the objectives; and c. the parameters to be applied in relation to the strategy, for example in respect of the financial ratios. |
20.2. The board of management shall provide the supervisory board, in a timely manner, with the information it needs to carry out its duties. At least once per year, the board of management shall inform the supervisory board in writing in respect of the principles of the strategic policy, the general and financial risks and the management and control system of the company.
|
Propose to delete as this is no longer reflected in the Dutch corporate governance code. | ||
| 20.3. The supervisory board shall prepare a profile for its size and composition, taking into consideration the nature of the business, its activities and the desired expertise and background of the supervisory board members. The supervisory board shall discuss the profile as well as any change thereof in the general meeting and with the works council as referred to in section 2:158 paragraph 11 of the Dutch Civil Code, hereinafter referred to as: the works council. |
20.3. The supervisory board shall prepare a profile for its size and composition, taking into consideration the nature of the business, its activities and the desired expertise and background of the supervisory board members. The supervisory board shall discuss the profile as well as any change thereof in the general meeting and with the works council as referred to in section 2:158 paragraph 11 of the Dutch Civil Code, hereinafter referred to as: the works council. |
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| Current text | Proposed text | Explanation | ||
| Supervisory board; appointment. Article 21. |
Supervisory board; appointment. Article 21. |
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| 21.1. The supervisory board shall consist of at least three members or any larger number of members as determined by the supervisory board. The supervisory board shall appoint one of its members as its Chairman. |
21.1. The supervisory board shall consist of at least three members or any larger number of members as
determined by the supervisory board. The supervisory board shall appoint one of its members as its |
It is proposed to refer to “chairperson” instead of “chairman”. | ||
| 21.2. Supervisory board members shall be appointed by the general meeting on the recommendation of the supervisory board; in the event as referred to in the last sentence of paragraph 7 of this article the appointment shall be made by the supervisory board. The supervisory board shall inform the general meeting and the works council simultaneously of its nomination. |
21.2. Supervisory board members shall be appointed by the general meeting on the recommendation of the supervisory board; in the event as referred to in the last sentence of paragraph 7 of this article the appointment shall be made by the supervisory board. The supervisory board shall inform the general meeting and the works council simultaneously of its nomination. |
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| 21.3. The general meeting and the works council may recommend persons to the supervisory board for appointment as a supervisory board member. The supervisory board shall promptly inform them when, as a result of which event and in accordance with which profile, a vacancy in the supervisory board must be filled. In the event the vacancy requires the strengthened right of recommendation as referred to in paragraph 5 of this article, the supervisory board shall include this fact in its information. |
21.3. The general meeting and the works council may recommend persons to the supervisory board for appointment as a supervisory board member. The supervisory board shall promptly inform them when, as a result of which event and in accordance with which profile, a vacancy in the supervisory board must be filled. In the event the vacancy requires the strengthened right of recommendation as referred to in paragraph 5 of this article, the supervisory board shall include this fact in its information. |
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| 21.4. Together with a recommendation or
nomination for appointment of a supervisory board member information of the candidate shall be given: |
21.4. Together with a recommendation or nomination for appointment of a supervisory board member, the following information shall be given of the candidate: age; profession; number of shares held in the share capital of the company and the positions he or she holds or has held insofar as of importance with respect to the fulfilment of the duties of a member of the supervisory board. In addition, reference shall be made as for which companies he or she already serves as a member of the supervisory board; in the event |
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| Current text | Proposed text | Explanation | ||
| the event this includes legal entities that belong to the same group it may be sufficient to mention such group. The recommendation or nomination of a member of the supervisory board shall state the grounds on which it is based. In the event of a re-appointment the way in which the candidate has performed his duty as a member of the supervisory board. |
this includes legal entities that belong to the same group it may be sufficient to mention such group. The recommendation or nomination of a member of the supervisory board shall state the grounds on which it is based. In the event of a re-appointment the way in which the candidate has performed his or her duty as a member of the supervisory board. |
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| 21.5. With regard to one third of the number of supervisory board members, the supervisory board shall place a person recommended by the works council on the nomination, unless the supervisory board objects to the recommendation on the grounds that the person recommended is expected to be unsuitable for the fulfilment of the duties of supervisory board members or that the supervisory board will not be suitably composed when the appointment is made as recommended. If the number of supervisory board members cannot be divided by three, the nearest lower number that can be divided by three will be the basis for determining the number of members to which this enhanced right of recommendation applies. |
21.5. With regard to one third of the number of supervisory board members, the supervisory board shall place a person recommended by the works council on the nomination, unless the supervisory board objects to the recommendation on the grounds that the person recommended is expected to be unsuitable for the fulfilment of the duties of supervisory board members or that the supervisory board will not be suitably composed when the appointment is made as recommended. If the number of supervisory board members cannot be divided by three, the nearest lower number that can be divided by three will be the basis for determining the number of members to which this enhanced right of recommendation applies. |
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| 21.6. If the supervisory board raises an objection against a person recommended by the works council it will inform the works council of that objection and the reasons for it. The supervisory board shall start consultations with the works council without delay with a view to reaching an agreement on the nomination. If the supervisory board determines that no agreement can be reached, a representative of the supervisory board designated for that purpose shall apply to the Enterprise Division of the Amsterdam Court of Appeal to uphold the objection. The application will not be filed until |
21.6. If the supervisory board raises an objection against a person recommended by the works council it will inform the works council of that objection and the reasons for it. The supervisory board shall start consultations with the works council without delay with a view to reaching an agreement on the nomination. If the supervisory board determines that no agreement can be reached, a representative of the supervisory board designated for that purpose shall apply to the Enterprise Division of the Amsterdam Court of Appeal to uphold the objection. The application will not be filed until |
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| Current text | Proposed text | Explanation | ||
| four weeks have lapsed since the consultations with the works council commenced. The supervisory board shall place the person recommended on the nomination if the Enterprise Division declares the objection unfounded. If the Enterprise Division upholds the objection, the works council may make a new recommendation in accordance with the provisions of paragraph 5 of this article. |
four weeks have lapsed since the consultations with the works council commenced. The supervisory board shall place the person recommended on the nomination if the Enterprise Division declares the objection unfounded. If the Enterprise Division upholds the objection, the works council may make a new recommendation in accordance with the provisions of paragraph 5 of this article. |
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| 21.7. The general meeting may by an absolute majority of votes cast, representing at least one-third of the outstanding share capital, overrule a nomination. If the general meeting with an absolute majority of votes cast overrules the nomination, but this majority does not represent at least one-third of the outstanding share capital, a new meeting can be convened in which meeting the nomination can be overruled by an absolute majority of votes cast. The provisions of section 2:158 paragraph 9 of the Dutch Civil Code apply with regard to convening the general meeting in order to appoint the nominee. If the nomination is rejected the supervisory board shall draw up a new nomination. Paragraphs 3 up to and including 6 of this article shall apply. If the general meeting does not appoint the nominee and does not resolve to reject the nomination, the supervisory board shall appoint the nominee. |
21.7. The general meeting may by an absolute majority of votes cast, representing at least one-third of the outstanding share capital, overrule a nomination. If the general meeting with an absolute majority of votes cast overrules the nomination, but this majority does not represent at least one-third of the outstanding share capital, a new meeting can be convened in which meeting the nomination can be overruled by an absolute majority of votes cast. The provisions of section 2:158 paragraph 9 of the Dutch Civil Code apply with regard to convening the general meeting in order to appoint the nominee. If the nomination is rejected the supervisory board shall draw up a new nomination. Paragraphs 3 up to and including 6 of this article shall apply. If the general meeting does not appoint the nominee and does not resolve to reject the nomination, the supervisory board shall appoint the nominee. |
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| Supervisory board; absence of all members. Article 22. |
Supervisory board; prevented from acting or failing to act.
Article 22. |
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| 22.1. If the number of supervisory board members falls below three, the powers of the supervisory board shall remain unaffected. In such case, the necessary measures to increase the number of members shall be taken forthwith. |
22.1. If the number of supervisory board members falls below three, the powers of the supervisory board shall remain unaffected. In such case, the necessary measures to increase the number of members shall be taken forthwith. |
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| Current text | Proposed text | Explanation | ||
| 22.2. In the event all supervisory board members are absent, such absence being not pursuant to the provisions of article 24 hereafter, then the appointment shall be made by the general meeting. |
22.2. In the event If all
supervisory board members are prevented from acting or are failing to act, other than “Prevented from acting” means that a supervisory board member is temporarily unable to perform his or her duties as a result of: a. suspension; b. illness; or c. inaccessibility, |
It is proposed to clarify the procedure pursuant to which the general meeting can appoint new supervisory board members in the event that some or all supervisory board members are absent or failing to act (other than in case of a withdrawal of confidence in the supervisory board, see article 24). The person or persons designated as temporary replacement by either the supervisory board or, in absence of a designation by the supervisory board, the general meeting, shall without delay need to take all measures to fill the vacancies in the supervisory board, which shall include following the procedure as laid down in article 21 and allowing the works council to determine its position and make its recommendation for one or more supervisory board member(s), and convening a general meeting at which the necessary appointments can be resolved upon. |
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| Current text | Proposed text | Explanation | ||
|
In the case of illness or inaccessibility, this means that contact between the supervisory board member concerned and the company has not been possible for a period of five (5) days, unless the supervisory board sets a different term. |
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| 22.3. The works council may recommend persons for appointment as supervisory board member(s). The person convening the general meeting shall in due time inform the works council that the subject of the appointment of supervisory board member(s) will be considered at the general meeting, specifying whether the appointment is taking place in accordance with the works council’s right of recommendation pursuant to article 21 paragraph 5. |
22.3. The works council may recommend persons for appointment as supervisory board member(s). The person convening the general meeting shall in due time inform the works council that the subject of the appointment of supervisory board member(s) will be considered at the general meeting, specifying whether the appointment is taking place in accordance with the works council’s right of recommendation pursuant to article 21 paragraph 5. |
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| 22.4. Article 21 paragraphs 5 and 6 shall apply mutatis mutandis. |
22.4. Article 21 paragraphs 5 and 6 shall apply mutatis mutandis. |
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| Supervisory board; resignation. Article 23. |
Supervisory board; resignation. Article 23. |
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| 23.1. A supervisory board member position may not be held by: a. persons employed by the company; b. persons employed by a dependent company; c. board of management members and persons employed by an employees’ organization customarily involved in the establishment of the terms of employment of the persons referred to under a and b. |
23.1. A supervisory board member position may not be held by: a. persons employed by the company; b. persons employed by a dependent company; c. board of management members and persons employed by an employees’ organization customarily involved in the establishment of the terms of employment of the persons referred to under a and b. |
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| 23.2. A supervisory board member shall be appointed for a maximum period of four years, provided however that unless such supervisory board member resigned at an earlier date, his term of office shall lapse on the day of the general meeting, to be held in the fourth year after the year of his appointment. A supervisory board member may be re-appointed with due observance of the preceding sentence. A supervisory board member, appointed to fulfil an interim |
23.2. A supervisory board member shall be appointed for a maximum period of four years, provided however that
unless such supervisory board member resigned at an earlier date, his or her term of office shall lapse |
Technical change |
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| Current text | Proposed text | Explanation | ||
| vacancy, shall – as far as it concerns the moment of retirement – take the place of his predecessor, unless the supervisory board provides otherwise at the moment of his appointment. |
member, appointed to fulfil an interim vacancy, shall – as far as it concerns the moment of retirement – take the place of his or her predecessor, unless the supervisory board provides otherwise at the moment of his or her appointment. |
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| 23.3. The supervisory board establishes a rotation schedule. |
23.3. The supervisory board establishes a rotation schedule. |
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| 23.4. Upon application, the Enterprise Division of the Amsterdam Court of Appeal may remove a member(s) of the supervisory board for dereliction of his duties, for other important reasons or on account of any far-reaching change of circumstances as a result of which the company cannot reasonably be required to maintain him as a member(s) of the supervisory board. The application can be made by the company, represented for this purpose by the supervisory board, and by a designated representative of the general meeting or the works council. |
23.4. Upon application, the Enterprise Division of the Amsterdam Court of Appeal may remove a
member |
Alignment with Dutch text. | ||
| 23.5. A supervisory board member may be suspended by the supervisory board; such suspension shall lapse by operation of law if the company has not requested the Enterprises Chamber for the removal of such member as referred to in section 2:161 paragraph 2 of the Dutch Civil Code, within one month of the beginning of the suspension. |
23.5. A supervisory board member may be suspended by the supervisory board; such suspension shall lapse by operation of law if the company has not requested the Enterprises Chamber for the removal of such member as referred to in section 2:161 paragraph 2 of the Dutch Civil Code, within one month of the beginning of the suspension. |
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| Withdrawal of confidence in the supervisory board. Article 24. |
Withdrawal of confidence in the supervisory board. Article 24. |
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| 24.1. The general meeting may withdraw its confidence in the supervisory board by an absolute majority of votes cast, representing at least one third of the issued share capital. If less than one third of the issued share capital is represented at the meeting, a new meeting may be convened in which the general meeting may withdraw its confidence in the supervisory board by an absolute majority |
24.1. The general meeting may withdraw its confidence in the supervisory board by an absolute majority of votes cast, representing at least one third of the issued share capital. If less than one third of the issued share capital is represented at the meeting, a new meeting may be convened in which the general meeting may withdraw its confidence in the supervisory board by an absolute majority |
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| Current text | Proposed text | Explanation | ||
| of the votes cast, regardless the portion of the share capital represented at the meeting. |
of the votes cast, regardless the portion of the share capital represented at the meeting. |
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| The resolution to withdraw confidence in the supervisory board shall specify the reasons for the resolution. The resolution may not be passed with regard to supervisory board members appointed by the Enterprise Division in accordance with paragraph 3 of this article. |
The resolution to withdraw confidence in the supervisory board shall specify the reasons for the resolution. The resolution may not be passed with regard to supervisory board members appointed by the Enterprise Division in accordance with paragraph 3 of this article. |
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| 24.2. A resolution as referred to in paragraph 1 shall not be passed until the board of management has notified the works council of the proposed resolution and the reasons for it. The notification shall take place at least thirty days before the general meeting at which the proposal is to be considered. If the works council determines a position on the proposal, the board of management shall inform the supervisory board and the general meeting of that position. The works council can have its position explained at the general meeting. |
24.2. A resolution as referred to in paragraph 1 shall not be passed until the board of management has notified the works council of the proposed resolution and the reasons for it. The notification shall take place at least thirty days before the general meeting at which the proposal is to be considered. If the works council determines a position on the proposal, the board of management shall inform the supervisory board and the general meeting of that position. The works council may can have its position explained at the general meeting. |
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| 24.3. The resolution referred to in paragraph 1 shall result in the immediate dismissal of the supervisory board members. In that case, the board of management shall request without delay the Enterprise Chamber of the Amsterdam Court of Appeal to appoint of one or more supervisory board members on a temporary basis. The Enterprise Chamber shall determine the consequences of the appointment. |
24.3. The resolution referred to in paragraph 1 shall result in the immediate dismissal of the supervisory board members. In that case, the board of management shall request without delay the Enterprise Chamber of the Amsterdam Court of Appeal to appoint of one or more supervisory board members on a temporary basis. The Enterprise Chamber shall determine the consequences of the appointment. |
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| 24.4. The supervisory board shall use its best efforts to ensure that a new supervisory board is composed within the period set by the Enterprise Division and in accordance with article 21. |
24.4. The supervisory board shall use its best efforts to ensure that a new supervisory board is composed within the period set by the Enterprise Division and in accordance with article 21. |
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| Current text | Proposed text | Explanation | ||
| Supervisory board; meetings and decision process. Article 25. |
Supervisory board; meetings and decision process. Article 25. |
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| 25.1. The supervisory board may adopt its resolutions by an absolute majority of votes cast at a meeting where at least one half of its members is present. The supervisory board may adopt its resolutions in writing provided that the proposal was sent to all members and no member opposed this method of adopting a resolution and provided that more than half of the members will cast its votes in favour of the proposal. |
25.1. The supervisory board may adopt its resolutions by an absolute majority of votes cast at a meeting where at least one half of its members is present, provided that supervisory board members who have a conflict of interest shall not be taken into account when calculating such quorum. The supervisory board may adopt its resolutions in writing provided that the proposal was sent to all members and no member opposed this method of adopting a resolution and provided that more than half of the members will cast its votes in favour of the proposal. |
Proposal to include conflict of interest provision for the supervisory board. | ||
|
25.2. If a Supervisory board member has direct or indirect personal conflict of interest with the company, he or she shall not participate in the deliberations and the decision-making process in the supervisory board. If as a result thereof no resolution of the supervisory board can be adopted, the resolution can be adopted by the general meeting. | ||||
| 25.2. Minutes shall be kept of the proceedings of the supervisory board meetings, which in any case shall include the resolutions adopted by the meeting. In the event that the resolutions have been adopted outside of a meeting, as referred to in the preceding paragraph, the resolutions so adopted shall be recorded in writing. Such record shall be signed by the Chairman. |
25. |
Update of reference. | ||
| 25.3. A statement signed by two supervisory board members to the effect that the supervisory board has adopted a particular resolution shall constitute evidence of such a resolution vis-à-vis third parties. |
25. |
Proposed to create additional flexibility. |
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| Current text | Proposed text | Explanation | ||
| 25.4. The board of management members shall, if so invited by the supervisory board, attend the meetings of the supervisory board. |
25. |
Update of reference. | ||
| 25.5. The supervisory board adopts rules of the supervisory board. |
25. | |||
| Supervisory board; remuneration and indemnification. Article 26. |
Supervisory board; remuneration and indemnification. Article 26. |
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26.1. The company has a policy in respect of remuneration for the supervisory board. The policy will be adopted by the general meeting upon the proposal of the supervisory board. |
The proposed provision reflects the new legislation implementing the EU Shareholders Rights Directive, pursuant to which the company must have a remuneration policy for the supervisory board. | |||
| 26.1. Upon the proposal of the supervisory board, the general meeting shall determine the remuneration of supervisory board members, which shall consist of a fixed yearly amount. A supervisory board member shall not be granted any shares and/or rights to acquire shares by way of remuneration. |
26. |
Changes made to align with new paragraph regarding remuneration policy. ASML operates in accordance with the Dutch Corporate Governance Code and members of the Supervisory Board do not receive any variable remuneration. This is also laid down in the remuneration policy for the Supervisory Board.\ | ||
| 26.2. The supervisory board may grant an additional remuneration to be borne by the company to its Chairman or to members who pursuant to a resolution of the supervisory board have been designated to perform certain functions or activities of the supervisory board. |
26. |
Technical clarification. |
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| Current text | Proposed text | Explanation | ||
| 26.3. Current and former supervisory board members shall be reimbursed for: (i) expenses in relation to defending themselves against claims for damages or defending themselves in other legal proceedings; and (ii) any damages they may be ordered to pay, incurred due to acts or omissions in the performance of their tasks as supervisory board member or any other function they fulfil at the request of the company. The company shall indemnify them against financial losses that are a direct result of the foregoing. No reimbursement will be awarded and no indemnification will be granted to the party concerned in case and to the extent that a court in the Netherlands irrevocably has established that the acts and omissions may be characterized as being willfully misconducted or intentionally reckless, including seriously imputable, unless this would in view of all circumstances of the case be contrary to the standard of reasonableness and fairness (redelijkheid en billijkheid). In addition, no reimbursement will be given to the extent that the financial losses are covered by an insurance and the insurer has settled the financial losses. The company may take out liability insurance on behalf of the party concerned. By means of a written agreement the board of management may further implement the foregoing. |
26. (i) expenses in relation to defending themselves against claims for damages or defending themselves in other legal proceedings; and (ii) any damages they may be ordered to pay, incurred due to acts or omissions in the performance of their tasks as supervisory board member or any other function they fulfil at the request of the company. The company shall indemnify them against financial losses that are a direct result of the foregoing. No reimbursement will be awarded and no indemnification will be granted to the party concerned in case and to the extent that a court in the Netherlands irrevocably has established that the acts and omissions may be characterized as being willfully misconducted or intentionally reckless, including seriously imputable, unless this would in view of all circumstances of the case be contrary to the standard of reasonableness and fairness (redelijkheid en billijkheid). In addition, no reimbursement will be given to the extent that the financial losses are covered by an insurance and the insurer has settled the financial losses. The company may take out liability insurance on behalf of the party concerned. By means of a written agreement the board of management may further implement the foregoing. |
Update of reference. |
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| General meetings; general. Article 27. |
General meetings; general. Article 27. |
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| 27.1. The ordinary general meeting shall be held within six months after the end of the financial year. |
27.1. The annual |
Technical clarification. | ||
| 27.2. The agenda of this general meeting shall at least include the following subjects: a. the written report of the board of management containing the course of affairs in the company and the conduct of management in the preceding financial year; b. the adoption of the annual accounts; c. discussion regarding the company’s reserves and dividend policy and justification thereof by the board of management; d. if applicable, the proposal to pay a dividend; e. the discharge of the board of management members in respect of its management during the previous financial year; f. the discharge of the supervisory board members in respect of its supervision during the previous financial year; g. each substantial change in the corporate governance structure of the company; and h. proposals placed on the agenda by the supervisory board, the board of management or shareholders submitted accordance with the provisions of these articles of association shall be discussed and resolved upon. |
27.2. The agenda of a. the written report of the board of management containing the course of affairs in the company and the conduct of management in the preceding financial year; b. the adoption of the annual accounts; c. if applicable,
discussion of any changes to d. if applicable, the proposal to pay a dividend; e. the discharge of the board of management members in respect of its management during the previous financial year; f. the discharge of the supervisory board members in respect of its supervision during the previous financial year; g. each substantial change in the corporate governance structure of the company; and h. proposals placed on the agenda by the supervisory board, the board of management or shareholders submitted accordance with the provisions of these articles of association shall be discussed and resolved upon. |
Alignment of text to best practice provision 4.1.3 of the Dutch corporate governance code. |
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| Extraordinary general meeting. Article 28. |
Extraordinary general meeting. Article 28. |
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| 28.1. Extraordinary general meetings shall be held as often as deemed necessary by the board of management or the supervisory board, and must be held if one or more shareholders and others entitled to attend the meetings, jointly representing at least one-tenth of the issued share capital, make a written request to that effect to the board of management and the supervisory board, specifying in detail the items to be discussed. |
28.1. Extraordinary general meetings shall be held as often as deemed necessary by the board of management or the supervisory board, and must be held if one or more shareholders and others entitled to attend the meetings, jointly representing at least one-tenth of the issued share capital make a written request to that effect to the board of management and the supervisory board, specifying in detail the items to be discussed. |
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| 28.2. If the board of management fails to comply with a request as referred to in the preceding paragraph in such a manner that the general meeting can be held within six weeks after the request, the persons making the request may be authorized by the President of the Court in ‘s-Hertogenbosch to convene the meeting themselves. |
28.2. If the board of management fails to comply with a request as referred to in the preceding paragraph in such a manner that the general meeting can be held within six weeks after the request, the persons making the request may be authorized by the President of the Court in ‘s-Hertogenbosch to convene the meeting themselves. |
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| General meeting; place and convocation. Article 29. |
General meeting; place and convocation. Article 29. |
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| 29.1. The general meetings shall be held, at the option of the board of management, in Veldhoven, in Eindhoven, in Amsterdam or in The Hague; the convocation shall inform the shareholders and others entitled to attend the meetings accordingly. |
29.1. The general meetings shall be held, at the option of the board of management, in Veldhoven, in Eindhoven, in Amsterdam or in The Hague; the convocation shall inform the shareholders and others entitled to attend the meetings accordingly. |
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| 29.2. The convocation of the general meeting shall be given in such manner as authorized by law (including, but not limited to, a written notice; a legible and reproducible message sent by electronic means; or an announcement published by electronic means). |
29.2. The convocation of the general meeting shall be given in such manner as authorized by law (including, but not limited to, a written notice; a legible and reproducible message sent by electronic means; or an announcement published by electronic means). |
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| 29.3. The convocation shall be issued by the board of management or by those persons statutory entitled thereto. |
29.3. The convocation shall be issued by the board of management or by those persons statutory entitled thereto. |
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| General meeting; convocation and agenda. Article 30. |
General meeting; convocation and agenda. Article 30. |
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| 30.1. The convocation shall be given with due observance of the statutory notice period. |
30.1. The convocation shall be given with due observance of the statutory notice period. |
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| 30.2. The convocation shall state the business to be transacted as well as the other information prescribed by law or these articles of association. |
30.2. The convocation shall state the business to be transacted as well as the other information prescribed by law or these articles of association. |
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| 30.3. Any items which one or more shareholders and others entitled to attend the meetings, representing at least one-hundredth of the issued share capital or representing a value of at least fifty million euro (EUR 50,000,000), have requested in writing to be considered, shall be included in the convocation or announced in the same manner, provided that the company has received the reasoned request or the proposal for a resolution no later than the sixtieth day prior to the date of the meeting. The board of management and the supervisory board shall inform the shareholders by means of explanatory notes to the agenda of all facts and circumstances relevant to the proposals on the agenda. These explanatory notes to the agenda shall be published on the website of the company. |
30.3. Any items which one or more shareholders and others entitled to attend the meetings, representing at least one-hundredth of the issued share capital or representing a value of at least fifty million euro (EUR 50,000,000), have requested in writing to be considered, shall be included in the convocation or announced in the same manner, provided that the company has received the reasoned request or the proposal for a resolution no later than the sixtieth day prior to the date of the meeting. The board of management and the supervisory board shall inform the shareholders by means of explanatory notes to the agenda of all facts and circumstances relevant to the proposals on the agenda. These explanatory notes to the agenda shall be published on the website of the company. |
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| 30.4. Written requests as referred to in section 2:110 subsection 1 and section 2:114a subsection 1 of the Dutch Civil Code, may be submitted electronically. Requests as referred to in section 2:110 subsection 1 and section 2:114a subsection 1 of the Dutch Civil Code shall comply with conditions stipulated by the board of management, which conditions shall be posted on the company’s website. |
30.4. Written requests as referred to in section 2:110 subsection 1 and section 2:114a subsection 1 of the Dutch Civil Code, may be submitted electronically. Requests as referred to in section 2:110 subsection 1 and section 2:114a subsection 1 of the Dutch Civil Code shall comply with conditions stipulated by the board of management, which conditions shall be posted on the company’s website. |
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| General meeting; meeting order and reporting. Article 31. |
General meeting; meeting order and reporting. Article 31. |
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| 31.1. The general meetings shall be presided over by the Chairman of the supervisory board or by any other person designated by the supervisory board. |
31.1. The general meetings shall be presided over by the
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| 31.2. A certificate signed by the chairman confirming that the general meeting has adopted a particular resolution, shall constitute evidence of such resolution vis-à-vis third parties. |
31.2. A certificate signed by the
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| General meeting; record date. Article 32. |
General meeting; record date. Article 32. |
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| 32.1. All holders of shares and others entitled to attend meetings are authorized to attend the general meeting, to address the meeting and, in so far as they have such a right, to vote. |
32.1. All holders of shares and others entitled to attend meetings are authorized to attend the general meeting, to address the meeting and, in so far as they have such a right, to vote. |
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| 32.2. The chairman is responsible for an orderly and efficient conduct of the general meeting. All matters regarding the conduct of the general meeting shall be decided upon by the chairman. |
32.2. The |
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| 32.3. Persons entitled to attend the general meeting are those who at the record date prescribed by law, hold these rights and are registered as such in a register designated by the board of management for that purpose, regardless of who would have been entitled to attend the shareholders’ meeting if no record date would apply. The convocation notice for the general meeting shall state the record date and the manner in which the persons entitled to attend the general meeting may register and exercise their rights. |
32.3. Persons entitled to attend the general meeting are those who at the record date prescribed by law, hold these rights and are registered as such in a register designated by the board of management for that purpose, regardless of who would have been entitled to attend the shareholders’ meeting if no record date would apply. The convocation notice for the general meeting shall state the record date and the manner in which the persons entitled to attend the general meeting meeting may register and exercise their rights. |
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| 32.4. The board of management may decide that persons entitled to attend general meetings and vote there may, within a period prior to the general meetings to be set by the board of management, which period cannot start prior to the registration date as meant in paragraph 3, cast their votes electronically and/or by post in a manner to be decided by the board of management. Votes cast in accordance with the previous sentence are equal to votes cast at the meeting. |
32.4. The board of management may decide that persons entitled to attend general meetings and vote there may, within a period prior to the general meetings to be set by the board of management, which period cannot start prior to the registration date as meant in paragraph 3, cast their votes electronically and/or by post in a manner to be decided by the board of management. Votes cast in accordance with the previous sentence are equal to votes cast at the meeting. |
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| 32.5. The person who wishes to exercise the right to vote and to attend the general meeting has to sign the attendance list prior to the general meeting, as far as applicable stating the name (names) of the person(s) he is representing as proxy holder, the number of shares he is representing and, as far as applicable, the number of votes he is able to cast. |
32.5. The person who wishes to exercise the right to vote and to attend the general meeting has to sign the attendance list prior to the general meeting, as far as applicable stating the name (names) of the person(s) he is representing as proxy holder, the number of shares he is representing and, as far as applicable, the number of votes he is able to cast. |
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| 32.6. The written proxies must be provided to the holder of the register no later than the date mentioned in the convocation. |
32.6. The written proxies must be provided to the holder of the register no later than the date mentioned in the convocation. |
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| 32.7. The provisions of the preceding paragraphs shall apply correspondingly to holders of a right of usufruct or holders of a right of pledge, who have the right to vote. |
32.7. The provisions of the preceding paragraphs shall apply correspondingly to holders of a right of usufruct or holders of a right of pledge, who have the right to vote. |
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| 32.8. The board of management may decide that each person entitled to attend general meetings may by electronic means of communication take note of the business transacted at a shareholders’ meeting. |
32.8. The board of management may decide that each person entitled to attend general meetings may by electronic means of communication take note of the business transacted at a shareholders’ meeting. |
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| 32.9. The board of management may decide that each person entitled to attend general meetings and vote thereat may, either in person or by written proxy, by electronic means of communication vote at that meeting, provided that such person can be identified through the electronic means of communication and furthermore provided that such person can directly take note of the business transacted at the general meeting concerned. The board of management may attach conditions to the use of the electronic means of communication, which conditions shall be announced at the convocation of the general meetings and shall be posted on the company’s website. |
32.9. The board of management may decide that each person entitled to attend general meetings and vote thereat may, either in person or by written proxy, by electronic means of communication vote at that meeting, provided that such person can be identified through the electronic means of communication and furthermore provided that such person can directly take note of the business transacted at the general meeting concerned. The board of management may attach conditions to the use of the electronic means of communication, which conditions shall be announced at the convocation of the general meetings and shall be posted on the company’s website. |
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| General meeting; votes. Article 33. |
General meeting; votes. Article 33. |
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| 33.1. The number of votes that may be cast by a shareholder shall equal the multiple of one eurocent (EUR 0.01) included in the aggregate nominal amount of his shares. |
33.1. |
With the removal of the ordinary class B shares, all shares will have the same nominal value and thus identical voting rights. It is therefore proposed that each share will carry one vote (rather than a multiple of 1 eurocent as a result of which ordinary shares carry 9 votes). This will simplify voting procedures at general meetings. | ||
| 33.2. Valid votes may be cast for shares held by a person who, for another reason than in his capacity as shareholder of the company, would have been granted any right vis-à-vis the company pursuant to the resolution to be adopted, or who would have been released from any obligation vis-à-vis the company as a result thereof. |
33.2. Valid votes may be cast for shares held by a person who, for another reason than in his capacity as shareholder of the company, would have been granted any right vis-à-vis the company pursuant to the resolution to be adopted, or who would have been released from any obligation vis-à-vis the company as a result thereof. |
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| General meeting; decision process. Article 34. |
General meeting; decision process. Article 34. |
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| 34.1. Unless these articles of association provide for a larger majority, resolutions shall be adopted with an absolute majority of votes cast. Blank votes and invalid votes shall not be taken into account. The Chairman shall decide on the method of voting and on the possibility of voting by acclamation. |
34.1. Unless these articles of association provide for a larger majority, resolutions shall be adopted with an
absolute majority of votes cast. Blank votes and invalid votes shall not be taken into account. The |
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| 34.2. In a vote concerning reappointments, further votes shall, if necessary, be taken until one of the nominees has obtained an absolute majority. In a tie vote no resolution will have been adopted. The second vote or votes may, at the Chairman’s discretion, be taken at a subsequent meeting. |
34.2. In a vote concerning reappointments, further votes shall, if necessary, be taken until one of the nominees
has obtained an absolute majority. In a tie vote no resolution will have been adopted. The second vote or votes may, at the |
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| 34.3. Except as provided in paragraph 2 above, in the event of a tie vote the relevant proposal shall be deemed rejected. |
34.3. Except as provided in paragraph 2 above, in the event of a tie vote the relevant proposal shall be deemed rejected. |
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| Meetings of holders of ordinary shares. Article 35. |
Meetings of holders of ordinary shares. Article 35. |
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| Separate meetings of holders of ordinary shares shall be held whenever a resolution of the meeting of holders of ordinary shares is necessary pursuant to the provisions of law and these articles of association. With respect to such meeting articles 28 to 34 inclusive shall apply correspondingly. | Separate meetings of holders of ordinary shares shall be held whenever a resolution of the meeting of holders of ordinary shares is necessary pursuant to the provisions of law and these articles of association. With respect to such meeting articles 28 to 34 inclusive shall apply correspondingly. | |||
| Meetings of holders of preference shares. Article 36. |
Meetings of holders of preference shares. Article 36. |
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| 36.1. Extraordinary meetings of holders of preference shares shall be held (i) as often as the board of management considers necessary; (ii) whenever a resolution of the meeting of holders of preference shares is necessary pursuant to the provisions of law and these articles of association; and (iii) if holders of preference shares representing at least two-fifths of the issued preference share capital make a written request to that effect to the board of management, specifying in detail the business to be dealt with. |
36.1. Extraordinary meetings of holders of preference shares shall be held (i) as often as the board of management considers necessary; (ii) whenever a resolution of the meeting of holders of preference shares is necessary pursuant to the provisions of law and these articles of association; and (iii) if holders of preference shares representing at least two-fifths of the issued preference share capital make a written request to that effect to the board of management, specifying in detail the business to be dealt with. |
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| 36.2. If the meeting has not been convened within fourteen days after the request in accordance with the preceding sentence by the holders of preference shares has been made, the applicants are authorized to convene the meeting themselves. |
36.2. If the meeting has not been convened within fourteen days after the request in accordance with the preceding sentence by the holders of preference shares has been made, the applicants are authorized to convene the meeting themselves. |
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| Place of meetings and convocation. Article 37. |
Place of meetings and convocation. Article 37. |
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| 37.1. The Chairman of the board of management shall decide on the place where the meetings of holders of preference shares shall be held. |
37.1. The |
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| 37.2. The meetings shall be convened by means of a notice to each holder of preference shares. The fact that a notice has not been received or has not been received in time, is no basis for the invalidity of a meeting, unless there is no proof that the notice was indeed ever sent out. |
37.2. The meetings shall be convened by means of a notice to each holder of preference shares. The fact that a notice has not been received or has not been received in time, is no basis for the invalidity of a meeting, unless there is no proof that the notice was indeed ever sent out. |
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| 37.3. The notices shall be sent out by the Chairman of the board of management and in the event referred to in article 36 paragraph 2 by the holders of preference shares referred to therein. |
37.3. The notices shall be sent out by the
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| 37.4. The meeting shall be convened no later than on the eighth day prior to the meeting. |
37.4. The meeting shall be convened no later than on the eighth day prior to the meeting. |
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| 37.5. A meeting at which all the holders of the preference shares are present or represented, may also adopt valid resolutions without fulfilling the convening requirements for convocation as referred to in this article. |
37.5. A meeting at which all the holders of the preference shares are present or represented, may also adopt valid resolutions without fulfilling the convening requirements for convocation as referred to in this article. |
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| 37.6. A meeting of holders of preference shares may adopt its resolutions in writing if the proposal has been sent to all holders of preference shares in writing, none of them opposes this manner of decision-making and all the holders of preference shares express themselves in favour of the proposal concerned. |
37.6. A meeting of holders of preference shares may adopt its resolutions in writing if the proposal has been sent to all holders of preference shares in writing, none of them opposes this manner of decision-making and all the holders of preference shares express themselves in favour of the proposal concerned. |
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| 37.7. The provisions concerning the Chairmanship of the meetings, the representation by proxy holders, the adoption of resolutions, the method of voting and tie votes contained in the articles 31, 33 and 34 shall apply correspondingly, provided, however, that only those persons may act as proxy holders who have not been opposed as such by the meeting of holders of preference shares. |
37.7. The provisions concerning the |
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| Current text | Proposed text | Explanation | ||
| Annual accounts, annual report and distributions. Article 38. |
Annual accounts, Article 38. |
Under Dutch law, the term “annual report” has been replaced with “management report”. This proposed text is in line with this replacement. | ||
| 38.1. The financial year shall coincide with the calendar year. |
38.1. The financial year shall coincide with the calendar year. | |||
| 38.2. Annually, within the period set under or pursuant to the law the board of management shall make generally available: the annual accounts, the annual report, the auditor’s statement as well as other information which, under or pursuant to the law, must be made generally available together with the annual accounts. The board of management submits the annual accounts to the works council. |
38.2. Annually, within the period set under or pursuant to the law the board of management shall make generally
available: the annual accounts, the The board of management submits the annual accounts to the works council. | |||
| 38.3. The board of management must prepare these annual accounts on business economical basis. |
38.3. The board of management must prepare these annual accounts on business economical basis. |
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| 38.4. With the approval of the supervisory board, the board of management shall have the power to determine to what extent the profits - the positive balance of the profit and loss account - shall be retained by way of a reserve, with due observance of the statutory provisions with respect to the statutory reserves and after the provisions of article 39 paragraphs 1 and 2 have been fulfilled. |
38.4. With the approval of the supervisory board, the board of management shall have the power to determine to what extent the profits - the positive balance of the profit and loss account - shall be retained by way of a reserve, with due observance of the statutory provisions with respect to the statutory reserves and after the provisions of article 39 paragraphs 1 and 2 have been fulfilled. |
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| 38.5. The general meeting shall adopt the annual accounts. The board of management shall have the annual accounts examined by a registered accountant designated for that purpose by the general meeting or another expert designated thereto in accordance with the provisions of section 2:393 of the Dutch Civil Code. In the event the general meeting does not designate such expert, the supervisory board is authorized thereto, and if it fails to do |
38.5. The general meeting shall adopt the annual accounts. The board of management shall have the annual
accounts examined by a registered accountant designated for that purpose by the general meeting or another expert designated thereto in accordance with the provisions of section 2:393 of the Dutch Civil Code. In the event the general meeting does
not designate such expert, the supervisory board is authorized thereto |
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| so, the board of management shall be authorized to do so. Such designation may be made for an indefinite period of time. The expert shall report by means of his report on his examination to the general meeting, the supervisory board and the board of management and shall issue a report in writing containing the results thereof. |
|
Technical change to align with current legislation. | ||
| 38.6. The external auditor or the other expert designated in accordance with the provisions of section 2:393 of the Dutch Civil Code shall be invited to the general meeting and is authorized to address the meeting. |
38.6. The external auditor or the other expert designated in accordance with the provisions of section 2:393 of the Dutch Civil Code shall be invited to the general meeting and is authorized to address the meeting. |
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| 38.7. The annual accounts can only be adopted if the general meeting has been informed of the expert’s report. |
38.7. The annual accounts can only be adopted if the general meeting has been informed of the expert’s report. |
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| 38.8. The board of management shall explain, in a separate chapter of the annual report, the principles of the corporate governance structure of the company. |
38.8. The board of management shall explain, in a separate chapter of the
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Under Dutch law, the term “annual report” has been replaced with “management report”. This proposed text is in line with this replacement. | ||
| 38.9. Copies of the annual accounts which have been prepared, of the expert’s report, of the annual report and of the information to be added pursuant to any and all statutory provisions can be obtained and shall be available for inspection by the shareholders and others entitled to attend the meetings, at the office of the company as of the day of the said convocation until the close of that meeting to be specified in the convocation to the general meeting at which they will be discussed. |
38.9. Copies of the annual accounts which have been prepared, of the expert’s report, of the
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| Current text | Proposed text | Explanation | ||
| Profit and loss; general. Article 39. |
Profit and loss; general. Article 39. |
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| 39.1. From the profit as shown in the annual accounts adopted by the general meeting, the percentage mentioned below of the amount paid or required to be paid, as of the beginning of the financial year for which the distribution is made, or, if the preference shares were taken in the course of said financial year, as of the day on which the preference shares were taken shall, if possible, first be distributed on those shares. The dividend on the preference shares shall only be distributed for the number of days that such shares were actually outstanding in the financial year concerned. The percentage referred to above shall be equal to the average value of the EURIBOR- percentage for cash loans with a duration of twelve months – weighted by the amount of days for which this percentage counted – during the financial year for which the distribution is made, plus two hundred basis points. |
39.1. From the profit as shown in the annual accounts adopted by the general meeting, the percentage mentioned below of the amount paid or required to be paid, as of the beginning of the financial year for which the distribution is made, or, if the preference shares were taken in the course of said financial year, as of the day on which the preference shares were taken shall, if possible, first be distributed on those shares. The dividend on the preference shares shall only be distributed for the number of days that such shares were actually outstanding in the financial year concerned. The percentage referred to above shall be equal to the average value of the EURIBOR- percentage for cash loans with a duration of twelve months as published by the administrator of EURIBOR, the European Money Markets Institute (EMMI) located in Belgium or its legal successor(s), or in the absence of EURIBOR as benchmark, another benchmark that is officially determined, appointed or recommended as replacement of EURIBOR by (i) the European Central Bank, or another supervising authority, or in absence of this, (ii) the EMMI, aforementioned – weighted by the amount of days for which this percentage counted – during the financial year for which the distribution is made, plus two hundred basis points. |
It is proposed to include an alternative interest benchmark which can be applied in the event that Euribor is no longer available as benchmark. | ||
| 39.2. If the profit for a financial year is declared and one or more preference shares with repayment have been withdrawn or preference shares have been fully repaid in that financial year, those persons who according to the share register referred to in article 8 were holders of said preference shares at the time of the said withdrawal or repayment shall have an inalienable right to a distribution of profit as described below. The profit which, if possible, shall be distributed to the said persons shall be equal to the amount of the distribution to which they would have been entitled under the provisions of paragraph 1 if they had still been |
39.2. If the profit for a financial year is declared and one or more preference shares with repayment have been cancelled or preference shares have been fully repaid in that financial year, those persons who according to the share register referred to in article 8 were holders of said preference shares at the time of the said withdrawal or repayment shall have an inalienable right to a distribution of profit as described below. The profit which, if possible, shall be distributed to the said persons shall be equal to the amount of the distribution to which they would have been entitled under the provisions of paragraph 1 if they had still been |
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| Current text | Proposed text | Explanation | ||
| holders of the aforementioned preference shares at the time when the profit was declared, this being calculated on the basis of the period for which they were holders of preference shares in the said financial year, a part of a month being counted as a full month. With regard to an alteration to the provisions of this paragraph, the proviso referred to in section 2:122 of the Dutch Civil Code, is made. If in any financial year the profit referred to in paragraph 1 is not sufficient to make the distributions referred to above in this article, the provisions of this article and paragraph 3 shall not apply in the subsequent financial years until the shortfall has been eliminated. |
holders of the aforementioned preference shares at the time when the profit was declared, this being calculated on the basis of the period for which they were holders of preference shares in the said financial year, a part of a month being counted as a full month. With regard to an alteration to the provisions of this paragraph, the proviso referred to in section 2:122 of the Dutch Civil Code, is made. If in any financial year the profit referred to in paragraph 1 is not sufficient to make the distributions referred to above in this article, the provisions of this article and paragraph 3 shall not apply in the subsequent financial years until the shortfall has been eliminated. |
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| 39.3. The profits that remain after article 38 paragraph 4 and paragraphs 1 and 2 of this article have been applied, shall be at the free disposal of the general meeting. |
39.3. The profits that remain after article 38 paragraph 4 and paragraphs 1 and 2 of this article have been applied, shall be at the free disposal of the general meeting. |
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| 39.4. The general meeting is authorized to reserve said part of the Profits, in whole or in part. |
39.4. The general meeting is authorized to reserve said part of the profits, in whole or in part. |
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| 39.5. Distributions of profits may only take place to the extent shareholders’ equity exceeds the amount of the issued share capital plus the reserve maintained pursuant to law. |
39.5. Distributions of profits may only take place to the extent shareholders’ equity exceeds the amount of the issued share capital plus the reserve maintained pursuant to law. |
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| Profit and loss; distributions. Article 40. |
Profit and loss; distributions. Article 40. |
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| 40.1. Upon the proposal of the board of management, which proposal shall require the prior approval of the supervisory board, the general meeting shall be authorized to resolve to make distributions charged to the “other reserves” shown in the annual accounts or charged to “share premium reserve”. |
40.1. Upon the proposal of the board of management, which proposal shall require the prior approval of the supervisory board, the general meeting shall be authorized to resolve to make distributions charged to the “other reserves” shown in the annual accounts or charged to “share premium reserve”. |
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| 40.2. Upon the proposal of the board of management, which proposal shall require the prior approval of the supervisory board, the general meeting shall be authorized to make distributions to shareholders pursuant to article 39, this article 40 paragraph 1 and article 41 in the form of the issuance of shares. |
40.2. Upon the proposal of the board of management, which proposal shall require the prior approval of the supervisory board, the general meeting shall be authorized to make distributions to shareholders pursuant to article 39, this article 40 paragraph 1 and article 41 in the form of the issuance of shares and in kind. |
It is proposed to clarify that dividends can also be paid in kind (in addition to cash or stock dividend). | ||
| Interim dividends. Article 41. |
Interim dividends. Article 41. |
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| At its discretion and with due observance of the relevant provisions of the law, the board of management, with the prior approval of the supervisory board, may distribute one or more interim dividends on the shares before the annual accounts for any financial year have been adopted. These interim dividends may also be distributed on a class of shares. | At its discretion and with due observance of the relevant provisions of the law, the board of management, with the prior approval of the supervisory board, may distribute one or more interim dividends on the shares before the annual accounts for any financial year have been adopted; such interim dividend can be made in cash, in kind and in the form of a distribution of shares. These interim dividends may also be distributed on a class of shares. | It is proposed to clarify that interim dividends can be paid in cash, in the form of shares and in kind. | ||
| Distributions. Article 42. |
Distributions. Article 42. |
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| 42.1. Distributions pursuant to articles 39, 40 and 41, hereinafter referred to as distributions (or in singular: distribution), shall be made payable as from a date to be determined by the board of management. The date on which a distribution is payable for the first time in respect of shares of type I that have been issued may differ from the date in respect of shares of type II issued. |
42.1. Distributions pursuant to articles 39, 40 and 41, hereinafter referred to as distributions (or in singular: distribution), shall be made payable as from a date to be determined by the board of management. The date on which a distribution is payable for the first time in respect of shares of type I that have been issued may differ from the date in respect of shares of type II issued. |
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| 42.2. Distributions shall be made payable at a place or places to be determined by the board of management. |
42.2. Distributions shall be made payable at a place or places to be determined by the board of management. |
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| 42.3. The board of management may determine the method of payment in respect of cash distributions on shares of type I. |
42.3. The board of management may determine the method of payment in respect of cash distributions on shares of type I. |
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| 42.4. Cash distributions in respect of shares for which share certificates of type II have been issued shall, if such distributions are made payable only outside the Netherlands, be paid in the currency of the country concerned, converted at the exchange rate on the Amsterdam Stock Exchange at the close of business on a day to be determined and announced by the board of management. This day may not be earlier than the day preceding the day on which the distribution is declared and no later than the day which has been determined for the shares concerned in accordance with the provisions of paragraph 5 of this article. If and insofar as on the first day on which a distribution is made payable, the company is unable, as a consequence of governmental regulations or other extraordinary circumstances beyond its control, to make the payment at the place designated outside the Netherlands or in the relevant foreign currency, the board of management may to that extent designate one or more places in the Netherlands instead where the distributions are made payable. In that event the provisions of the first sentence of this paragraph shall no longer apply. |
42.4. Cash distributions in respect of shares for which share certificates of type II have been issued shall
be paid, if such distributions are made payable only outside the Netherlands, |
Proposal to simplify the procedure for determining the exchange rate. For dividend payments in a currency other than Euro. This should not affect current practice or rights of shareholders. | ||
| 42.5. The person entitled to any distribution on shares shall be the person in whose name the share is registered or, in the event of limited rights, the person whose right appears well-founded, at the date to be determined by the board of management for the purpose of each distribution in respect of the different types of shares. Such a payment shall acquit the company. |
42.5. The person entitled to any distribution on shares shall be the person in whose name the share is registered or, in the event of limited rights, the person whose right appears well-founded, at the date to be determined by the board of management for the purpose of each distribution in respect of the different types of shares. Such a payment shall acquit the company. |
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| 42.6. Notices relating to distributions and to the dates and places referred to in the preceding paragraphs of this article, shall be published in such manner as the board of management may deem desirable. |
42.6. Notices relating to distributions and to the dates and places referred to in the preceding paragraphs of this article, shall be published in such manner as the board of management may deem desirable. |
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| 42.7. Claims for payment of distributions in cash shall lapse if such distributions have not been collected within five years following the date on which they were made payable. |
42.7. Claims for payment of distributions in cash shall lapse if such distributions have not been collected within five years following the date on which they were made payable. |
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| 42.8. In case of a distribution by way of shares in the share capital of the company pursuant to article 40 paragraph 2 those shares shall be registered in the share register. A share certificate of type II shall be issued to the holders of shares of type II for a nominal amount equal to the amount added. |
42.8. In case of a distribution by way of shares in the share capital of the company pursuant to article 40 paragraph 2 those shares shall be registered in the share register. A share certificate of type II shall be issued to the holders of shares of type II for a nominal amount equal to the amount added. |
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| 42.9. The provisions of paragraphs 5 and 8 shall apply correspondingly in respect of any other distributions that do not take place pursuant to the articles 39, 40 and 41. |
42.9. The provisions of paragraphs 5 and 8 shall apply correspondingly in respect of any other distributions that do not take place pursuant to the articles 39, 40 and 41. |
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| Amendment of articles of association, dissolution and liquidation. Article 43. |
Amendment of articles of association, dissolution and liquidation. Article 43. |
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| 43.1. A resolution to amend the articles of association or to dissolve the company shall only be valid if: a. the approval of the supervisory board and has been or will be obtained; b. the complete proposals were available for inspection by the shareholders and the others entitled to attend meetings at the office of the company and - in the event of a listing - at a banking institution designated in the convocation to the general meeting, as from the date of said convocation until the close of that meeting; and |
43.1. A resolution to amend the articles of association or to dissolve the company shall only be valid if: a. the approval of the supervisory board b. the complete proposals were available for inspection by the shareholders and the others entitled to attend meetings at the office of the company and - in the event of a listing - at a banking institution designated in the convocation to the general meeting, as from the date of said convocation until the close of that meeting; and |
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| c. without prejudice to the provision of paragraph 3 of this article the resolution is adopted at a general meeting at which more than one half of the issued share capital is represented and with at least three-fourths of the votes cast; if the required share capital is not represented at a meeting convened for that purpose, a subsequent meeting shall be convened, to be held within four weeks of the first meeting, at which, irrespective of the share capital represented, the resolution can be adopted with at least three-fourths of the votes cast. In case of an amendment of the articles of association the company must consult Euronext Amsterdam by NYSE Euronext, before she proposes this amendment to her shareholders. |
c. without prejudice to the provision of paragraph 3 of this article the resolution is adopted at a general meeting at which more than one half of the issued share capital is represented and with at least three-fourths of the votes cast; if the required share capital is not represented at a meeting convened for that purpose, a subsequent meeting shall be convened, to be held within four weeks of the first meeting, at which, irrespective of the share capital represented, the resolution can be adopted with at least three-fourths of the votes cast.
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Requirement of Euronext consultation no longer applies, therefore it is proposed to delete this provision. | ||
| 43.2. A resolution to appoint a registered accountant or other expert designated in accordance with section 2:393 of the Dutch Civil Code is also only valid if the provisions referred to in the preceding paragraph of this article under d have been fulfilled, provided, however, that instead of the majority of at least three-fourths of the votes cast referred to under d of that paragraph, a majority of at least two-thirds is required. |
43.2. A resolution to appoint a registered accountant or other expert designated in accordance with section
2:393 of the Dutch Civil Code is also only valid if the provisions referred to in the preceding paragraph of this article under |
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| 43.3. If a resolution as referred to in the first and second paragraph of this article is proposed by the board of management, the resolution will be adopted, contrary to the provisions of paragraph 1 under d and paragraph 2 of this article, with an absolute majority of votes cast irrespective of the represented share capital at the meeting. |
43.3. If a resolution as referred to in the first and second paragraph of this article is proposed by the board
of management, the resolution will be adopted, contrary to the provisions of paragraph 1 under c |
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| Liquidation. Article 44. |
Liquidation. Article 44. |
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| 44.1. If the company is dissolved, liquidation shall be effected by the board of management under the supervision of the supervisory board, unless the general meeting resolves otherwise. |
44.1. If the company is dissolved, liquidation shall be effected by the board of management under the supervision of the supervisory board, unless the general meeting resolves otherwise. |
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| 44.2. When adopting a resolution to dissolve the company, the general meeting may grant the liquidators and the persons charged with the supervision of the liquidation a remuneration. |
44.2. When adopting a resolution to dissolve the company, the general meeting may grant the liquidators and the persons charged with the supervision of the liquidation a remuneration. |
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| 44.3. After the liquidation has ended, the liquidators shall render account in accordance with the provisions of Book 2 of the Dutch Civil Code. |
44.3. After the liquidation has ended, the liquidators shall render account in accordance with the provisions of Book 2 of the Dutch Civil Code. |
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| Liquidation surplus. Article 45. |
Liquidation surplus. Article 45. |
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| After all liabilities have been settled, including costs made in connection with the liquidation, first, if possible, all holders of preference shares shall be paid the amount paid on their shares increased by the percentage referred to in article 39 paragraph 1 to be calculated over the financial year in which the payment takes place until the moment of payment, and by the previous years’ shortfall in dividend on said shares. The balance shall be paid on the ordinary Shares. | After all liabilities have been settled, including costs made in connection with the liquidation, first, if possible, all holders of preference shares shall be paid the amount paid on their shares increased by the percentage referred to in article 39 paragraph 1 to be calculated over the financial year in which the payment takes place until the moment of payment, and by the previous years’ shortfall in dividend on said shares. The balance shall be paid on the ordinary Shares. | |||
| Consignment account. Article 46. |
Consignment account. Article 46. |
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| The amounts that are payable to shareholders or creditors and have not been claimed within six months after they have been made payable, shall be deposited in a consignment account. | The amounts that are payable to shareholders or creditors and have not been claimed within six months after they have been made payable, shall be deposited in a consignment account. |
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| Provisions remaining in force after liquidation. Article 47. |
Provisions remaining in force after liquidation. Article 47. |
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| The provisions of these articles of association shall remain in force during the liquidation period, in so far these provisions can still be implemented. | The provisions of these articles of association shall remain in force during the liquidation period, in so far these provisions can still be implemented. | |||
| Fractional shares and ordinary shares B. Article 48. |
Fractional shares Article 48. |
Deletion results from the proposed removal of the ordinary class B shares. | ||
| 48.1. Each ordinary share consists of such number of fractional shares as will be determined by the board of management, which number shall be recorded at the trade register within eight (8) days after such determination. The par value of an ordinary share divided by the number of fractional shares as determined by the board of management, represents the par value of a fractional share. |
48.1. Each ordinary share consists of such number of fractional shares as will be determined by the board of management, which number shall be recorded at the trade register within eight (8) days after such determination. The par value of an ordinary share divided by the number of fractional shares as determined by the board of management, represents the par value of a fractional share. |
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| 48.2. Every fractional share shall be in registered form. |
48.2. Every fractional share shall be in registered form. |
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| 48.3. Without prejudice to the other provisions of this article 48, the provisions of Title 4 of Book 2 of the Dutch Civil Code on shares and shareholders shall apply accordingly to fractional shares and holders of fractional shares, to the extent not stipulated otherwise in those provisions. |
48.3. Without prejudice to the other provisions of this article 48, the provisions of Title 4 of Book 2 of the Dutch Civil Code on shares and shareholders shall apply accordingly to fractional shares and holders of fractional shares, to the extent not stipulated otherwise in those provisions. |
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| 48.4. The provisions of these articles of association with respect to shares and shareholders shall apply accordingly to fractional shares and holders of fractional shares, to the extent not stipulated otherwise in paragraphs 5, 6 and 7 of this article 48. |
48.4. The provisions of these articles of association with respect to shares and shareholders shall apply
accordingly to fractional shares and holders of fractional shares, to the extent not stipulated otherwise in paragraphs 5 |
Technical clarification. | ||
| 48.5. A holder of one or more fractional shares may exercise the meeting and voting rights attached to an ordinary share together with one or more other holders of one or more fractional shares to the extent the total number of fractional shares held by such holders of fractional shares equals the number of fractional shares which constitute an ordinary |
48.5. A holder of one or more fractional shares may exercise the meeting and voting rights attached to an ordinary share together with one or more other holders of one or more fractional shares to the extent the total number of fractional shares held by such holders of fractional shares equals the number of fractional shares which constitute an ordinary |
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| share or a multiple thereof. These rights shall be exercised either by one of them who has been authorized to that effect by the others in writing, or by a proxy authorized to that effect by those holders of fractional shares in writing. |
share or a multiple thereof. These rights shall be exercised either by one of them who has been authorized to that effect by the others in writing, or by a proxy authorized to that effect by those holders of fractional shares in writing. |
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| 48.6. The (interim) dividend and any other distribution to which the holder of one ordinary share is entitled divided by the number of fractional shares which constitute an ordinary share, represents the entitlement to the (interim) dividend and any other distribution of a holder of a fractional share. |
48.6. The (interim) dividend and any other distribution to which the holder of one ordinary share is entitled divided by the number of fractional shares which constitute an ordinary share, represents the entitlement to the (interim) dividend and any other distribution of a holder of a fractional share. |
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| 48.7. Every holder of an ordinary share B is entitled to one/ninth (1/9) part of the (interim) dividend and any other distribution to which the holder of one ordinary share is entitled. |
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Deletion results from the proposed removal of the ordinary class B shares. | ||
| 48.8. With respect to the holders of ordinary shares B article 35 shall apply correspondingly. |
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| 48.9. At the written request to that effect made by a holder of ordinary shares, the board of management shall resolve that each ordinary share designated in the resolution will be converted into such number of fractional shares as determined by the board of management in accordance with paragraph 1 of this article 48. This shall be recorded in the shareholders’ register. The company may charge costs for a conversion and recording as referred to hereinbefore in this paragraph to the applicant. |
48. |
Update of reference. | ||
| 48.10. Leaving aside the situation referred to in paragraph 9 of this article 48, in the event the holder of one or more fractional shares acquires such number of fractional shares that the total number of fractional shares held by him equals the number of fractional shares which constitute an ordinary share, the fractional shares shall by operation of law be consolidated into one ordinary share. This shall be recorded in the shareholders’ register. |
48. |
Update of reference. |
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| 48.11. At the written request to that effect made not later than the thirty-first day of July two thousand and thirteen by a holder of at least one/ninth (1/9) of the number of fractional shares which constitute an ordinary share, the board of management shall resolve that the number of fractional shares equal to one/ninth (1/9) of the number of fractional shares which constitute an ordinary share, will be converted into an ordinary share B. This shall be recorded in the shareholders’ register. The company may charge costs for a conversion and recording as referred to hereinbefore in this paragraph to the applicant. If necessary the number of ordinary shares B included in the authorized share capital shall simultaneously with the conversion referred to hereinbefore and by operation of law be increased accordingly and the nominal amount of the ordinary shares included in the authorized share capital shall simultaneously be decreased in total with a corresponding amount. The company shall record a change in the authorized share capital as referred to hereinbefore at the office of the trade register within eight (8) days. |
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Deletion results from the proposed removal of the ordinary class B shares. | ||
| 48.12. Without prejudice to the provisions hereinbefore in this Article, the board of management shall resolve, at the written request to that effect by a holder of ordinary shares B, that each time nine (9) ordinary shares B will be converted and combined into one (1) ordinary share. This shall be recorded in the shareholders’ register. The company may charge costs for a conversion and recording as referred to hereinbefore in this paragraph to the applicant. |
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| If necessary the number of ordinary shares included in the authorized share capital shall simultaneously with the conversion referred to hereinbefore and by operation of law be increased accordingly and the nominal amount of the ordinary shares B included in the authorized share capital shall simultaneously be decreased in total with a corresponding amount. The Company shall record a change in the authorized share capital as referred to hereinbefore at the office of the trade register within eight (8) days. |
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CONCLUDING STATEMENT (UNOFFICIAL TRANSLATION) NOTARIAL DEED OF AMENDMENT OF THE ARTICLES OF ASSOCIATION
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| Finally the person appearing declares that at the time of the execution of this deed the issued share capital of the company amounts to [•] euro (EUR [•]), divided into [•] ([•]) shares. | According to section 2:124 paragraph 3 of the Dutch Civil Code the issued capital of the company at the time of the execution of the deed of amendment of the articles of association of the company has to be mentioned in the deed. | |||
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