Corporate governance is about the sound management of a company, the supervision of that management and how the execution of the strategy is reported to all the company’s stakeholders. These stakeholders include shareholders, employees, clients and society as a whole. Factors that play a role in this include the strategy and the achievement of the company’s business objectives, the corporate culture and how the company meets its reporting and transparency obligations.
Open corporate culture
A disciplined and unified corporate culture is a prerequisite for the success of our ‘Better, Smarter, Sustainable’ strategy. Heijmans sees continuous improvement as of vital importance to maintain a sound basis. We recognise the importance of good corporate governance and a code of conduct for the achievement of our business objectives and the realisation of the related corporate culture. To this end, we continue to focus on communicating the core values that are vital to the realisation of this strategy. These core values are ownership, result focus and collaboration.
Heijmans strives to maintain the highest possible standards, which means that we respect and comply with legislation, and observe and initiate guidelines that apply either to the company specifically or to the industry in general. Additionally, this means that we also strive to achieve the highest possible levels of integrity and transparency in our actions and any decision-making that affects our stakeholders. We also strive to conduct a continuous dialogue with stakeholders and to distribute information simultaneously and accessibly.
For more detailed information on how governance and supervision are organised at Heijmans, see the Corporate Governance Statement (as meant in Sections 2(a) in conjunction with sections 3 through 3(b) of the Decree Adopting Further Provisions Regarding the Content of Annual Reports (Vaststellingsbesluit nadere voorschriften inhoud jaarverslag) and including the information required under the Decree implementing Article 10 of the Dutch Takeover Directive). This statement is available (in Dutch) on the Heijmans website in the ‘Corporate Governance: Codes, statuten en reglementen’ section.
Organisation of our Corporate Governance
The basic premises for Heijmans’ corporate governance structure are: good business conduct, integrity, reliability, client focus, openness and transparent dealings by the management, as well as the proper supervision of same. After all, we attach a great deal of importance to achieving an equitable balance between the interests of our various stakeholders. Heijmans endorses the principles of the Dutch Corporate Governance Code to the effect that the Company is a long-term alliance of the various stakeholders of the Company.
Depositary receipts for Heijmans shares are issued through the Heijmans Share Administration Trust, or SA Trust (Stichting Administratiekantoor Heijmans). The purpose of this vehicle is to prevent resolutions being adopted by a shareholders meeting through a random majority. The depositary receipts for shares are freely exchangeable for ordinary shares.
Employees are represented at Heijmans via the Works Council. Heijmans has a single Works Council at the level of Heijmans Nederland B.V. There are also a number of committees, each with its own focus area, such as finance, social policy and communications, comprising both members and non-members of the Works Council. In 2022, the Works Council held five meetings, and six consultative meetings. The latter are meetings at which the chairman of the Executive Board is present. Two of the consultative meetings were attended by a member of the Supervisory Board. In the course of 2022, the Works Council dealt with three requests for approval and five requests for advice. In 2023, the Works Council will celebrate its 50th anniversary.
The Dutch Corporate Governance Code: compliance and deviations from the code
The current Dutch Corporate Governance Code was published in the Government Gazette on 8 December 2016. This Code is embedded in Dutch law by virtue of Section 2:391(5) of the Dutch Civil Code in conjunction with Section 2 of the Decree on the Content of Management Reports (Besluit inhoud bestuursverslag).
Heijmans endorses the underlying principles of the Dutch Corporate Governance Code and has incorporated these principles as such in our corporate governance structure. To this end, we have also aligned the regulations of the Executive Board, of the Supervisory Board and of the committees of the Supervisory Board with the code.
In the year under review, up until 12 April 2022, we deviated from the recommendations of the Code with respect to one best practice: 2.2.2
Deviation from best practice 2.2.2
This provision relates to the number of terms of appointment for supervisory directors. A supervisory director is appointed for a period of four years and can then be reappointed once for a period of four years. The supervisory director may thereafter be reappointed for a term of two years, which term may be extended for a maximum of two years.
Contrary to this provision and following nomination by the Supervisory Board, the General Meeting of Shareholders on 15 April 2020 reappointed Mr. R. Icke, a member of the Supervisory Board of Heijmans since April 2008, for a term of two years. The Supervisory Board decided to nominate him in view of the desire to ensure continuity in the Supervisory Board and to create a more balanced retirement schedule. In view of the fact that in April 2020, two supervisory directors stepped down and a third was appointed relatively recently, the Supervisory Board is of the opinion that a new term of two years for Mr. Icke is in line with the pursuit of both continuity and the arrangement of a more balanced retirement schedule. Mr. Icke stepped down after the General Meeting of Shareholders on 12 April 2022.
Corporate Governance Statement
The Corporate Governance Statement as referred to in section 2(a) in conjunction with sections 3 through 3(b) of the Decree Adopting Further Provisions Regarding the Content of Annual Reports (Vaststellingsbesluit nadere voorschriften inhoud jaarverslag) and including the information required under the Decree implementing Article 10 of the Dutch Takeover Directive (Overname richtlijn) is available (in Dutch) on the Heijmans website in the section ‘Corporate Governance: Codes, statuten en reglementen’. This statement should be considered inserted and repeated here.
The holders of ordinary shares or depositary receipts for ordinary shares are entitled to the pay-out of a dividend. Heijmans N.V.’s dividend policy includes a pay-out ratio, barring exceptional circumstances, of approximately 40% of the profit from ordinary business operations after tax. The remaining 60% is added to the reserves in accordance with Article 31 (5) of Heijmans N.V.’s Articles of Association.
Heijmans Preference Share Trust
The Heijmans Preference Share Trust has been given a call option, which gives the Trust the right to obtain preference shares in the capital of Heijmans N.V.
The purpose of the Trust is to protect the interests of the company and all its stakeholders. The Trust also aims to limit any impact that may impede the independence and/ or continuity and/or identity and/or strategy of the Company. The purpose of issuing protective preference shares is to provide the company with the opportunity and the time to effect the protection of the above-mentioned interests in the event that the company finds itself in a potentially undesirable situation.
Powers of the shareholders meeting and the rights of shareholders
According to principle 4.1 of the Code, good corporate governance assumes full participation by shareholders in the decision-making at the general meeting. The Supervisory Board and the Executive Board also consider this important. The notice of convocation, agenda and documentation to be dealt with at a shareholder meeting are all published on the company’s website at least 42 days in advance of the meeting. As far as possible, the Company gives shareholders the opportunity to vote remotely and to communicate with all other shareholders. Holders of (depositary receipts for) shares who cannot attend a shareholders’ meeting can issue a proxy and voting instructions to a third party designated by the Company, which third party will vote in accordance with their voting instructions.
According to the Heijmans Articles of Association, any resolutions by the Executive Board that involve a significant change to the identity or character of the Company or its business are subject to approval by a shareholders meeting. The shareholders meeting also has a number of other significant powers, including the adoption of the financial statements, the appropriation of the result, the discharge of the members of the Executive Board and the Supervisory Board, the adoption of the remuneration policy for the Executive Board and the remuneration of the members of the Supervisory Board, resolutions to amend the Articles of Association or to dissolve the Company, the appointment of the external auditor and the designation of the Executive Board as the body authorised to acquire (buy back) and issue shares
Limitation on the transfer of shares
There is no limitation in the Articles of Association or contractually on the transfer of shares or depositary receipts for shares issued with the cooperation of the Company, except for the block on the transfer and delivery of financing B preference shares laid down in the Articles of Association. Article 11 of the Company’s Articles of Association stipulates that the Company’s Executive Board must approve any transfer of financing B preference shares.
Substantial shareholdings in Heijmans
Holders of shares and depositary receipts for shares that, as far as the Company is aware, held an interest of more than 3% in Heijmans as at 31 December 2022, according to the Register of Substantial Shareholdings of the Dutch Financial Markets Authority (AFM), are listed in ‘The Heijmans Share’ chapter of this annual report.
Protective measures (special controlling rights, limitation of voting rights)
The shares into which the authorised share capital of the Company is divided do not endow the holders with any special controlling rights.
The Company does not have any employee participation plan or employee share option plan.
There are no limitations of voting rights attached to ordinary shares or the depositary receipts for ordinary shares.
The Company’s Articles of Association include the usual provisions related to registration as a recognised party entitled to attend and to vote at a shareholders meeting.
Article 6 of the Company’s Articles of Association states that the Executive Board, with the Supervisory Board’s approval, is designated by the General Meeting of Shareholders as the body authorised to issue shares or depositary receipts for shares. The scope and duration of this power is determined by the General Meeting of Shareholders.
Agreements with shareholders that may limit the transfer of (depositary receipts for) shares or limit voting rights
limitation of the transfer of shares;
limitation of the issuance of (depositary receipts for) ordinary shares with the cooperation of the Company;
the limitation of voting rights.
Amendment of the articles of Association
A resolution to amend the Articles of Association can only be passed by a majority of at least two-thirds of the votes cast at a General Meeting of Shareholders at which at least half the issued capital is represented, unless the motion for such a resolution comes from the Executive Board, acting with the approval of the Supervisory Board. If a motion for a resolution stems from the Executive Board acting with the approval of the Supervisory Board, the resolution can then be passed by a simple majority of the votes, regardless of the capital represented.
Authorisation of the Executive Board with respect to the issuance of shares and the acquisition of shares
In accordance with the Articles of Association, on 12 April 2022, the General Meeting of Shareholders designated the Executive Board, with the approval of the Supervisory Board and for a period of 18 months commencing on 12 April 2022, as the body authorised to:
- 1) issue shares and/or grant rights to acquire shares; and 2) to limit or exclude the pre-emptive right to ordinary shares of existing shareholders, for a term of 18 months commencing on 12 April 2022. The mandate to issue ordinary shares is limited to 10% of the issued share capital on 12 April 2022; and
- 1) to issue ordinary shares in connection with a rights issue, with the understanding that this mandate of the Executive Board is limited to a nominal value equal to 20% of the issued capital at the moment of issue; and 2) in connection with this, to limit or exclude the statutory pre-emptive right of existing shareholders, insofar as the Executive Board believes such a measure to be necessary or practical in the context of a rights issue, but where existing shareholders that are eligible for this will gain contractual pre-emptive rights for new shares in relation to their shares held, in accordance with existing rights issue practice, for a term of 18 months from 12 April 2022.
Furthermore, the General Meeting of Shareholders of 12 April 2022 gave the Executive Board the authority - for a period of 18 months commencing on 12 April 2022 and subject to the approval of the Supervisory Board – to decide that the Company will acquire ordinary and financing B preference shares in its own capital, by purchasing same in the market or by other means. This authorisation is limited to 10% of the issued share capital and the company may only purchase the treasury shares at a price between their face value and 110% of the average closing prices over the last five trading days prior to the date the ordinary shares are purchased, and between the face value and 110% of the issue price for financing B preference shares.
The Extraordinary General Meeting of Shareholders on 12 July 2022 authorised the Executive Board, with the approval of the Supervisory Board, to acquire all 4,510,000 issued financing B preference shares through purchase. The financing B preference shares of the Company may be purchased at a price between their face value and 110% of the issued price for the financing B preference shares. The proposed authorisation does not affect the authorisation granted on 12 April 2022 pertaining to shares in the capital of the Company.
The Extraordinary General of Shareholders approved the Executive Board’s proposal on 12 July 2022, with the approval of the Supervisory Board, that the Extraordinary General Meeting of Shareholders should resolve to reduce the issued share capital by withdrawing financing B preference shares, taking into consideration Heijmans’ Articles of Association and the rules of section 2:99 and 2:100 of the Dutch Civil Code. This decision was effected on 22 September 2022, after the Executive Board made use of the purchase authorisation granted on 12 July 2022.
Consequences of a public bid for important contracts
The agreement with the banking consortium includes a change-of-control clause with respect to the facility of € 117.5 million (at year-end 2022). This clause states that the consortium must be informed of any change of control, and must then be given the option to demand early repayment. Change-of-control clauses may also appear in joint venture agreements to which subsidiaries are party.
Payment to members of the Executive Board upon termination of their employment following a public bid
The agreements with the members of the Executive Board provide for a payment upon termination of the employment contract and/or management agreement following a public bid as meant in section 5:70 of the Dutch Financial Supervision Act.