TomTom 2010 Annual Report Download - page 43

p 41 / TomTom Annual Report and Accounts 2010
COMPOSITION OF CONTINUITY FOUNDATION /
In accordance with the Foundation’s Articles of
Association, the Board members are appointed by the
Board of the Foundation. The Board consists of three
members, Mick den Boogert, Robert de Bakker and Frans
Koffrie. The Management Board of the company and the
Board of the Foundation declare that they are jointly of
the opinion that the Foundation is independent from
the company.
PROTECTION MECHANISM /
Foundation Continuity TomTom
The company has granted the Foundation a call option
(the “Call Option”), entitling it to subscribe for preference
shares, equal to a maximum of 50% of the aggregate
issued and outstanding share capital (excluding issued
and outstanding preference shares) of the company at the
time of issue. The issue of preference shares in this manner
would cause substantial dilution to the voting power of
any shareholder whose objective was to gain control
of the company.
Management Board authority to issue additional
preference shares
In addition to the Call Option, the Management Board has
the authority to issue preference shares. The Management
Board believed that there might be circumstances under
which the Management Board and the Supervisory Board
would feel that the issue of additional preference shares
could be required in the interest of the company and its
stakeholders. For instance, the number of preference
shares the Foundation can acquire might not be sufficient.
Also the situation could occur whereby the Foundation
has already exercised its Call Option and subsequently
the preference shares have been cancelled. As with the
instrument in place for the Foundation, any possible
issuances of preference shares will be temporary and
subject to the company’s Articles of Association and
the legislation on takeovers.
As mentioned above, during the Annual General Meeting
held in April 2010, a resolution was passed to extend the
authority of the Management Board to issue preference
shares and to grant rights to subscribe for such shares until
26 October 2011, which authority is limited to 50% of the
aggregate issued and outstanding share capital (excluding
issued and outstanding preference shares) of the company
at the time of issue.
Also the authorisation of the Management Board to restrict
or exclude pre-emptive rights pertaining to the (rights
to subscribe for) preference shares was extended until
26 October 2011 at the Annual General Meeting of
Shareholders in April 2010.
Pursuant to the Articles of Association, a resolution of
our Management Board to issue preference shares, or
to grant rights to subscribe for preference shares, as a
result of which the aggregate nominal value of the issued
preference shares will exceed 50% of the issued capital of
ordinary shares at the time of issue, will at all times require
the prior approval of the General Meeting of Shareholders.
Upon the issue of preference shares, subscribers for
preference shares must pay at least 25% of the nominal
value of the preference shares. Each transfer of preference
shares requires the approval of the Management Board and
Supervisory Board. No resolution of the General Meeting of
Shareholders or the Management Board is required for an
issue of preference shares pursuant to the exercise of a
previously granted right to subscribe for preference shares
(including the right of the Foundation to acquire
preference shares pursuant to the Call Option).
The issue of preference shares is meant to be temporary.
Unless the preference shares have been issued by a vote
of the General Meeting of Shareholders, our Articles of
Association require that a General Meeting of Shareholders
is held within six months after the issue of preference
shares to consider their purchase or withdrawal. If at this
General Meeting of Shareholders no resolution on the
purchase or withdrawal of the preference shares is
adopted, a General Meeting of Shareholders will be held
every six months thereafter for as long as preference
shares remain outstanding.
OBLIGATIONS OF SHAREHOLDERS TO DISCLOSE
HOLDINGS
Under the Financial Markets Supervision Act (Wet op het
financieel toezicht), any person who, directly or indirectly,
acquires or disposes of an interest in the capital and/or the
voting rights of a limited liability company, incorporated
under Dutch law with an official listing on a stock
exchange within the European Economic Area, or a
company organised under the laws of a state that is not a
member of the European Union or party to the European
Economic Area with an official listing on NYSE Euronext
Amsterdam, must give written notice of such acquisition
or disposal if, as a result of such acquisition or disposal, the
percentage of capital interest and/or voting rights held by
such a person meets, exceeds or falls below one of the
following thresholds: 5%, 10%, 15%, 20%, 25%, 30%,
40%, 50%, 60%, 75% and 95% of a company’s issued
and outstanding share capital. Such notification must be
given to the Dutch securities regulator (Autoriteit Financiële
Markten, the “AFM”) without delay.