Stichting Imtech
Imtech N.V. has granted Stichting Imtech (a foundation) an option on up to a maximum of 180 million preference shares in its share capital, with the proviso that the Stichting may only take preference shares up to a total number equal to the total number of all ordinary shares and financing preference shares outstanding at the time the option right is exercised. In the year under review Imtech notified the Stichting that it was willing, in principle, on agreement to grant the Stichting when the occasion arises the right to instigate an inquiry, as understood in Article 345 of Book 2 of the Dutch Civil Code, should this be desirable or imperative in the opinion of both parties within the context of the objective of the Stichting.
The Stichting is a separate foundation that functions independently of Imtech. The Stichting’s objectives are to act in the interests of Imtech in such a manner that these interests are secured as far as possible and to avert as far as possible influences contrary to such interests that could impair the continuity or independence of Imtech. The option can be exercised if, and at the exclusive diseretion of the Stichting: (i) the independence or continuity of Imtech is threatened; or (ii) an (impending) action by one or more people is (or could be) contrary to the interests of Imtech, (other) shareholders, employees or other stakeholders of Imtech. In such instances the option of issuing preference shares may be utilised. Such instances do not necessarily have to be limited to ‘acquisition or attack’, the decision rests with the Stichting. Imtech will not endeavour to use the issue of preference shares to expand its financing sources.
If it has taken up its full option the Stichting may cast a maximum of 50% of the votes in a GMS, assuming the total issued share capital is represented. If preference shares are subscribed the Stichting must deposit 25% of the nominal amount for which it has signed a credit agreement with RBS (or its legal successor). In addition, within two years of the shares being subscribed a proposal to withdraw the preference shares must be put before the GMS.
In accordance with Article 24.3 of the Articles of Association of Imtech N.V. the Stichting, as the holder of preference shares, is entitled to a primary dividend to enable it to pay its interest obligations to the bank. If and to the extent that the profit is insufficient to pay out this primary dividend the shortfall can be paid out of the reserves and/ or future profit (see also page 127).
In 2009 no preference shares were outstanding with the Stichting. Stichting Imtech’s Board now comprises an Escrow Services BV (Chairman), represented by Mr. L.J.J.M. Lutz, and Messrs. J.H. Holsboer and M.P. Nieuwe Weme.