SHARES AND SHAREHOLDERS' RIGHTS
GENERAL MEETING OF SHAREHOLDERS
ASMI shareholders exercise their rights through Annual and Extraordinary General Meetings of Shareholders. ASMI is required to convene an Annual General Meeting of Shareholders in the Netherlands each year, no later than six months after the end of the Company’s financial year. Additional Extraordinary General Meetings of Shareholders may be convened at any time by the Supervisory Board or the Management Board.
The convocation date is legally set at 42 days prior to the date of the General Meeting of Shareholders.
The record date is legally set at 28 days prior to the date of the General Meeting of Shareholders. Those who are registered as shareholders at the record date are entitled to attend the meeting and to exercise other shareholder rights. Shareholders may be represented by written proxy.
PUBLICATION IN ENGLISH
The Statutory annual report, the Financial statements and other regulated information such as defined in the Dutch Act on Financial Supervision (Wet op het Financieel Toezicht), will solely be published in English on the Company's website (www.asm.com).
The draft minutes of the General Meeting of Shareholders are available on the Company's website no later than three months after the meeting. Shareholders may provide their comments in the subsequent three months. Thereafter, the minutes are adopted.
2016 AGM OF ASMI
On May 25, 2016, ASMI held its Annual General Meeting of Shareholders in Amsterdam, the Netherlands. The attendance rate was 66.9% of the total issued share capital of ASMI as per the registration date. In line with the ASMI Boards' recommendations, the shareholders approved all resolutions as proposed to the Annual General Meeting of Shareholders.
The main resolutions were as follows:
- The Financial statements for the year 2015 were adopted and the shareholders granted discharge to the members of the Management Board and the Supervisory Board from liability in relation to the exercise of their duties in the financial year 2015.
- The shareholders voted in favor of the dividend payment of €0.70 per ordinary share.
In the General Meeting of Shareholders, each ordinary share with a nominal value of €0.04 entitles the holder to cast one vote, each financing preferred share with a nominal value of €40.00 entitles the holder to cast one thousand votes and each preferred share with a nominal value of €40.00 entitles the holder to cast one thousand votes. Presently, there are no preferred shares and financing preferred shares outstanding. Treasury shares held by the Company cannot be voted on.
The authorized capital of the Company amounts to 110,000,000 shares of €0.04 par value common shares, 118,000 shares of €40 par value preferred shares and 8,000 shares of €40 par value financing preferred shares, of which 59,815,843 common shares, no preferred and no financing preferred shares were outstanding as at December 31, 2016. All per December 31, 2016 outstanding common shares were fully paid.
Of our 59,815,843 outstanding common shares at December 31, 2016, excluding treasury shares, 3,039 are registered with us in the Netherlands, 59,409,659 are registered with our transfer agent in the Netherlands, and 403,145 are registered with our transfer agent in the United States.
Financing preferred shares are designed to allow ASMI to finance equity with an instrument paying a preferred dividend, linked to EURIBOR loans and government loans, without the dilutive effects of issuing additional common shares.
Preferred and financing preferred shares are issued in registered form only and are subject to transfer restrictions. Essentially, a preferred or financing preferred shareholder must obtain the approval of the Company's Supervisory Board to transfer shares. If the approval is denied, the Supervisory Board will provide a list of acceptable prospective buyers who are willing to purchase the shares at a cash price to be fixed by consent of the Supervisory Board and seller within two months after the approval is denied. If the transfer is approved, the shareholder must complete the transfer within three months, at which time the approval expires.
Preferred shares are entitled to a cumulative preferred dividend based on the amount paid-up on such shares. Financing preferred shares are entitled to a cumulative dividend based on the par value and share premium paid on such shares.
ASMI is party to an agreement with Stichting Continuïteit ASM International (Stichting), pursuant to which Stichting is granted an option to acquire up to a number of our preferred shares corresponding with a total par value equal to 50% of the par value of our common shares issued and outstanding at the date of the exercise of the option. Stichting is a non-membership organization organized under Dutch law. The objective of Stichting is to serve the interests of the Company. For that objective, Stichting may, amongst others, acquire, own, and vote our preferred shares in order to maintain our independence and/or continuity and/or identity.
The members of the board of Stichting are:
- Dick Bouma, Retired Chairman Board Pels Rijcken & Droogleever Fortuijn;
- Rob Ruijter, Chairman Supervisory Board Delta Lloyd; and
- Rinze Veenenga Kingma, President Archeus Consulting BV.
The purpose of above mentioned option is to protect the independence, the continuity and the identity of ASMI against influences that are contrary to the interests of ASMI, its enterprise and the enterprises of its subsidiaries and all stakeholders.
The powers of the General Meeting of Shareholders are defined in our Articles of Association. The main powers of the shareholders are to:
- appoint, suspend, and dismiss members of the Management Board and Supervisory Board;
- adopt the financial statements;
- declare dividends;
- discharge the Management Board and Supervisory Board from responsibility for the performance of their respective duties for the previous financial year;
- appoint the external auditors;
- adopt amendments to the Articles of Association;
- issue shares and grant subscriptions for shares;
- authorize the Management Board to issue shares and grant subscriptions for shares;
- withdraw pre-emptive rights of shareholders upon issuance of shares;
- authorize the Management Board to withdraw pre-emptive rights of shareholders upon issuance of shares; and
- authorize the Management Board to repurchase or cancel outstanding shares.
Pursuant to the Dutch Financial Supervision Act ("Wet op het financieel toezicht" or WFT), legal entities as well as natural persons must immediately notify the Dutch Authority for the Financial Markets (AFM) when a shareholding equals or exceeds 3% of the issued capital. The AFM must be notified again when this shareholding subsequently reaches, exceeds or falls below a threshold. This can be caused by the acquisition or disposal of shares by the shareholder or because the issued capital of the issuing institution is increased or decreased. Thresholds are: 3%, 5%, 10%, 15%, 20%, 25%, 30%, 40%, 50%, 60%, 75%, and 95%. The AFM incorporates the notifications in the public register, which is available on its website. Failure to disclose the shareholding qualifies as an offense, and may result in civil penalties, including suspension.
The following table sets forth information with respect to the ownership of our common shares as of February 1, 2017, by each beneficial owner known to us of more than 3% of our common shares:
|Number of Shares||Percent||Number of voting rights||Percent 1|
|J.P. Morgan Chase & Co 2||9,628,500||16.1%||9,628,500||16.1%|
|Stichting ADP 3||8,707,323||14.6%||8,707,323||14.6%|
|Eminence Capital LP 4||5,134,627||8.6%||1,910,167||3.2%|
|Goldman Sachs Group Inc. 5||4,529,018||7.6%||4,529,018||7.6%|
|Massachusetts Financial Services Company 6||3,096,673||5.2%||3,587,647||6.0%|
|Norges Bank 7||1,921,275||3.2%||1,921,275||3.2%|
|Schroders Plc 8||–||0.0%||2,049,027||3.4%|
- Calculated on the basis of 59,827,101 common shares outstanding as of February 1, 2017, and without regard to options.
- Of the share capital interest and voting rights held by J.P. Morgan Chase & Co, 407,161 shares are indirectly actual and 9,221,339 are indirectly potential. Based on the notification filed with the AFM on January 13, 2017.
- The total capital interest of Stichting ADP is held indirectly actual, while of the 8,707,323 voting rights 8,704,284 are held indirectly actual and 3,039 are held indirectly potential. Based on the AFM notification dated September 9, 2016.
- Of the share capital interest that Eminence Capital LP holds, 1,910,167 shares are directly actual and 3,224,460 are directly potential. Based on the AFM notification dated May 29, 2015.
- Of the 4,529,018 shares and voting rights held by Goldman Sachs Group Inc. 2,105,332 are held indirectly actual and 2,423,686 indirectly potential. Based on the AFM notification dated November 9, 2016.
- Massachusetts Financial Services Company’s capital interest amounts to 3,022,833 shares held directly actual and 73,840 shares indirectly actual. Of the voting rights, 3,201,169 are held directly actual and 386,478 indirectly actual. Based on the notification filed with the AFM on July 6, 2016.
- Of the share capital interest and voting rights held by Norges Bank, 1,907,726 shares are directly actual and 13,549 are directly potential. Based on the notification filed with the AFM on February 1, 2017.
- All of the 2,049,027 voting rights held by Schroders Plc are indirectly actual. Based on the notification filed with the AFM on May 3, 2016.
A 'beneficial owner' of a security includes any person who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise has or shares (i) voting power which includes the power to vote, or to direct the voting of, such security and/or (ii) investment power which includes the power to dispose, or to direct the disposition, of such security. In addition, a person shall be deemed to be the beneficial owner of a security if that person has the right to acquire beneficial ownership of such security, as defined above, within 60 days, including but not limited to any right to acquire: (i) through the exercise of any option, warrant or right; (ii) through the conversion of a security; or (iii) pursuant to the power to revoke, or pursuant to the automatic termination of, a trust, discretionary account, or similar arrangement.
ASMI aims to pay a sustainable annual dividend. Annually, the Supervisory Board, upon proposal of the Management Board, will assess the amount of dividend that will be proposed to the Annual General Meeting of Shareholders. The decision that a dividend be proposed to the Annual General Meeting of Shareholders will be subject to the availability of distributable profits as well as retained earnings and may be affected by our potential future funding requirements. Accordingly, dividend payments may fluctuate and could decline or be omitted in any year.
In 2016 we paid a dividend of €0.70 per common share. In 2015 we paid a dividend of €0.60 per common share, and from 2012 to 2014 we paid €0.50 per common share and in July 2013 we paid €4.25 per common share as an extraordinary capital repayment subsequent to the realized gain on the sale of a 12% share in our associate ASMPT. We will propose to the forthcoming 2017 Annual General Meeting of Shareholders to declare a dividend of €0.70 per share.