Supervisory Board
The Supervisory Board does not engage in the day-to-day management of the Company, but oversees the policies pursued by the Executive Board and the general course of business of the Company. It also provides advice to the Executive Board. In performing its duties, the Supervisory Board is required to act in the interests of the Company and its business as a whole. The members of the Supervisory Board are generally not authorised to represent the Company in dealing with third parties.
The General Meeting appoints the members of the Supervisory Board. The Articles of Association provide that the number of members of the Supervisory Board will be determined by the General Meeting, and will consist of a minimum of two members. At present, the number of members of the Supervisory Board has been determined at three. The Supervisory Board can make a binding nomination of at least two candidates if and when a vacancy occurs in the
Supervisory Board. A member of the Supervisory Board is appointed by an absolute majority of votes (i.e. more than 50% of the votes validly cast). The General Meeting can ignore a binding nomination only by a majority of more than two thirds of the votes validly cast, representing 50% of the issued share capital.
Each member of the Supervisory Board is appointed for a maximum of four years, which appointment can be renewed twice for a period of not more than four years at a time. By resolution of the General Meeting, a member of the Supervisory Board can be appointed for more periods. The members of the Supervisory Board retire periodically in accordance with a rotation plan prepared by the Supervisory Board. The Supervisory Board has prepared 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 appoints a chairman from its members. The General Meeting may, at any time, suspend or remove members of the Supervisory Board. A resolution of the General Meeting to suspend or remove members of the Supervisory Board requires a majority of more than two thirds of the votes validly cast, representing 50% of the issued share capital.
Given the size of the Supervisory Board, it shall have no committees. Instead, the Supervisory Board as a whole shall perform the tasks recommended by the Code to be attributed to an audit committee, a selection and nomination committee and a remuneration committee. As such, the Supervisory Board will be responsible for, among other things, considering matters relating to financial controls and reporting, internal and external audits, the scope and results of audits, the independence and objectivity of auditors. It will monitor and review the audit function of the Company and, with the involvement of the Company’s independent auditor, will focus on compliance with applicable legal and regulatory requirements and accounting standards. The Supervisory Board will also be responsible for establishing and reviewing material aspects of the Company’s policy on compensation of members of the Executive Board and senior managers.
In accordance with the Articles of Association, a meeting of the Supervisory Board may be convened at any time that any of its members deems it necessary. At least six times annually, the Supervisory Board must meet formally in conjunction with a meeting of the Executive Board. At least once annually, the Supervisory Board must meet independently of the Executive Board to discuss issues relating to its own functioning, composition and size and the powers, composition, and functioning of the Executive Board.
Decisions of the Supervisory Board are taken by majority vote. In the event of a tie vote the proposal shall be rejected. A member of the Supervisory Board shall not participate in or vote on any subjects in which he has a conflict of interest.
The Supervisory Board will be assisted by the company secretary, who will be appointed and dismissed by the Executive Board, subject to the approval of the Supervisory Board.
The remuneration of each member of the Supervisory Board is determined by the General Meeting. The expenses of the members of the Supervisory Board are reimbursed by the Company.
Executive Board
The Executive Board is responsible for the day-to-day management of the Company. The Executive Board is required to keep the Supervisory Board informed, consult with the Supervisory Board on important matters and submit certain important decisions to the Supervisory Board for its prior approval, as described below.
The Executive Board may perform all acts necessary or useful for achieving the corporate purpose of the Company, with the exception of those acts that are prohibited by law or by the Articles of Association. The Executive Board as a whole is authorised to represent the Company. If a member of the Executive Board, acting in his personal capacity, enters into an agreement with the Company, or in his private capacity conducts litigation against the Company, the Company shall be represented in any such matter by another member of the Executive Board or by a member of the Supervisory Board appointed by the Supervisory Board, unless the General Meeting designates a person for that purpose.
The General Meeting appoints the members of the Executive Board. The Articles of Association provide that the number of members of the Executive Board will be determined by the General Meeting, and will consist of a minimum of one member. At present, the number of members of the Executive Board has been determined at four. The Supervisory Board can make a binding nomination of at least two candidates if and when a vacancy occurs in the Executive Board. A member of the Executive Board is appointed by an absolute majority of votes. The General Meeting can ignore a binding nomination only by a majority of more than two thirds of the votes validly cast, representing 50% of the issued share capital.
The General Meeting or the Supervisory Board may, at any time, suspend or remove members of the Executive Board. A resolution of the General Meeting to suspend or remove members of the Executive Board requires a majority of more than two thirds of the votes validly cast, representing 50% of the issued share capital. A resolution of the Supervisory Board to suspend or remove members of the Executive Board requires an ordinary majority. Furthermore, the Supervisory Board determines the remuneration of the Executive Board.
The Articles of Association require decisions of the Executive Board to be approved by the Supervisory Board for, inter alia, the following matters:
• the issue, disposal or acquisition of any of the Shares or debt instruments, or of debt instruments issued by a limited or general partnership of which the Company is a fully liable partner
• the co-operation in the issue of registered depository receipts
• the application to or withdrawal from listing on any stock exchange of any of the Shares or debt instruments, or of debt instruments issued by a limited or general partnership of which the Company is a fully liable partner
• entry into or termination of a partnership, joint venture or other long-term contractual arrangement involving the Company or a dependent company (afhankelijke maatschappij) with another legal entity or as a fully liable partner in a limited or general partnership, if such cooperation or termination is material to the operations of the Company
• exclusion or limitation on pre-emptive rights in relation to an issue of shares
• participation by the Company in the capital of another company valued at 25% or more of the issued share capital plus reserves, according to the most recently adopted annual balance sheet of the Company, as well as a significant increase in or reduction of such participating interests
• entry into any investments involving an amount equal to 25% or more of the issued share capital plus reserves, according to the most recently adopted annual balance sheet of the Company
• a proposal to amend the Articles of Association
• a proposal to dissolve (ontbinden) the Company
• an application for bankruptcy (faillissement) and for suspension of payments (surséance van betaling) by the Company
• termination of the employment of a significant number of the employees of the Company or the employees of a dependent company (afhankelijke maatschappij) thereof at the same time or within a short time span
• a far-reaching change in the working conditions of a considerable number of the employees of the Company or of a dependent company (afhankelijke maatschappij) thereof
• a proposal to reduce the issued share capital
• a far-reaching change in the structure and activities of the Company
Pursuant to the Dutch Civil Code and the Articles of Association, decisions of the Executive Board involving a significant change in the identity or character of the Company are subject to the approval of a General Meeting. Such changes include:
• the transfer of all or substantially all of the business of the Company to a third party
• the entry into or termination of a long-term co-operation or participation of the Company, with another legal entity or company or of the position of the Company as a fully liable
partner in a limited or general partnership, if such a co-operation or participation or the termination thereof, is of far reaching significance to the Company
• the acquisition or disposal, by the Company, of a participating interest in the capital of a company valued at one third or more of the assets of the Company according to its most recently adopted consolidated annual balance sheet