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.
Special aspects
Dividend policy
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.
Agreements with shareholders that may give rise to restrictions on the transfer of (depositary receipts for) shares or could limit voting rights
In 2023, Heijmans acquired Van Wanrooij Bouwontwikkeling. As part of the purchase price, Heijmans issued 2,300,000 (depositary receipts for) ordinary Heijmans shares and placed these with the seller. The seller is not permitted to sell, pledge or otherwise dispose of the (depositary receipts for) ordinary shares or the beneficial interest in the (depositary receipts for) ordinary shares before three years have elapsed since the transfer date, this being 5 September 2023.
The Company is not otherwise aware of any agreements other than the aforementioned involving a shareholder that may result in:
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a limitation on the transfer of shares;
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a limitation on the issuance of (depositary receipts for) ordinary shares with the Company’s cooperation;
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a limitation of voting rights.
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. 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 Chapter 17 ‘The Heijmans Share’ of this annual report.
Protective measures (special voting rights; limitation of voting rights)
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The shares into which the authorised share capital of the Company is divided do not endow the holders with any special controlling rights.
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The Company does not have any employee participation plan or employee share option plan.
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There are no limitations of voting rights attached to ordinary shares or the depositary receipts for ordinary shares.
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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.
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In accordance with Article 6 of the Company’s Articles of Association, the Executive Board can be designated as the body authorised by the General Meeting of Shareholders to issue shares. This requires the approval of the Supervisory Board. The General Meeting of Shareholders determines the scope and duration of this authority.
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 (buy-back)
The Executive Board was designated by the General Meeting of Shareholders on 3 April 2023, in accordance with the Articles of Association, such subject to the approval of the Supervisory Board, for a period of eighteen months from 3 April 2023, to decide:
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1) to issue ordinary shares and/or grant rights to acquire ordinary 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 3 April 2023. The mandate to issue ordinary shares is limited to 10% of the issued share capital on 3 April 2023; and
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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 3 April 2023.
Furthermore, the General Meeting of Shareholders of 3 April 2023 gave the Executive Board the authority - for a period of 18 months commencing on 3 April 2023 and subject to the approval of the Supervisory Board – to decide that the Company will acquire ordinary 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 as per 3 April 2023. 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. The term shares is understood to include depositary receipts for shares.
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 € 252.50 million (at year-end 2023). 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.