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 Annual 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.
The 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.
On May 21, 2014 ASMI held its Annual General Meeting of Shareholders in Almere, the Netherlands. The attendance rate was 66.8% 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 2013 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 2013;
- the shareholders voted in favor of the dividend payment of €0.50 per ordinary share;
- the shareholders voted in favor of the reappointment of Mr C.D. del Prado and Mr P.A.M. van Bommel as members of the Management Board and Mr H.W. Kreutzer and Mr M.C.J. van Pernis as members of the Supervisory Board; and
- finally, the revised Remuneration Policy was adopted by the shareholders.
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 62,968,184 common shares, no preferred and no financing preferred shares were outstanding as at December 31, 2014. All per December 31, 2014 outstanding common shares were fully paid.
Of our 62,718,937 outstanding common shares at March 13, 2015, 2,142,039 are registered with us in the Netherlands, 58,150,696 are registered with our transfer agent in the Netherlands, ABN AMRO Bank NV and 2,426,202 are registered with our transfer agent in the United States, Citibank, NA, New York. Our common shares registered with Citibank, NA, New York are listed on the Nasdaq Global Select Market under the symbol 'ASMI'. As of March 13, 2015 there were approximately 100 record holders of our common shares registered with Citibank. ASMI's Ordinary Shares are listed on NYSE Euronext in Amsterdam (symbol: 'ASM') and also trade on Nasdaq (symbol: 'ASMI').
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.
On May 28, 1997, we entered into an agreement with Stichting Continuïteit ASM International ('Stichting'), pursuant to which Stichting was 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. To 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:
- Jan Klaassen (Chairman), Emeritus Professor, Vrije Universiteit Amsterdam;
- Dick Bouma, Retired Chairman Board Pels Rijcken & Droogleever Fortuijn; and
- Rinze Veenenga Kingma, President Archeus Consulting BV.
On May 14, 2008, Stichting exercised its right to acquire preferred shares in the Company and acquired 21,985 preferred shares representing 21,985,000 votes, which constituted 29.9% of the total voting power of our outstanding capital stock as of May 14, 2008. Stichting paid €219,850, which constituted one-fourth of the nominal value of the preferred shares acquired, in accordance with the option agreement. This amount was paid by Stichting using an existing credit line. On May 14, 2009, the Annual General Meeting of Shareholders resolved to cancel the outstanding preferred shares and to re-issue an option to Stichting Continuïteit to acquire preferred shares.
Except as described above regarding Stichting, we are unaware of any arrangement which we anticipate will result in a change in control of ASM International NV. All shares of our common stock (including shares held by major shareholders) entitle the holder to the same voting rights. Our preferred shares entitle the holder to 1,000 votes per share.
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 March 13, 2015by each beneficial owner known to us of more than 3% of our common shares:
|Number of Shares||Percent||Number of voting rights||Percent 1|
|Arthur H. del Prado 2||11,346,323||18.1%||11,346,323||18.1%|
|J.P. Morgan Chase & Co 3||8,619,109||13.7%||8,619,109||13.7%|
|Eminence Capital, LLC 4||6,480,170||10.3%||2,906,450||4.6%|
|Massachusetts Financial Services Company 5||3,204,564||5.1%||3,766,156||6.0%|
|Norges Bank 6||2,090,606||3.3%||2,090,606||3.3%|
- Calculated on the basis of 62,718,937 common shares outstanding as of March 13, 2015, and without regard to options.
- Includes 3,039 common shares owned by Stichting Administratiekantoor ASMI, a trust controlled by Mr Arthur H. del Prado and 713,000 common shares beneficially owned by Mr Chuck D. del Prado, Mr Arthur H. del Prado’s son.
- Of the share capital interest and voting rights held by J.P. Morgan Chase & Co 3,284,284 shares are indirectly actual and 5,334,825 are indirectly potential. Based on the notification filed with the AFM on February 11, 2015.
- Of the share capital interest that Eminence Capital, LLC holds 2,906,450 shares are directly actual and 3,573,720 are directly potential. Based on the AFM notification dated January 8, 2015.
- Massachusetts Financial Services Company’s capital interest amounts to 3,120,793 shares held directly actual and 83,771 shares indirectly actual. Of the voting rights 3,317,786 are held directly actual and 448,370 indirectly actual. Based on the notification filed with the AFM on March 13, 2015.
- Norges Bank’s capital interest amounts to 1,436,813 shares held directly actual and 653.793 shares directly potential. Based on the AFM notification dated February 12, 2015.
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, as part of its financing policy, 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 2007, we paid an interim dividend of €0.10 per common share. We did not pay dividends in 2008, 2009, 2010 and in any year prior to 2007. In 2011, we paid a dividend of €0.40 per common share. In 2012, 2013 and 2014, we paid a dividend of €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 intend to propose to the forthcoming 2015 Annual General Meeting of Shareholders to declare a dividend of €0.60 per share.