Agenda EGM

AGENDA ROYAL IMTECH N.V.
Agenda for the Extraordinary General Meeting of Shareholders, to be held on Tuesday 7 October
2014, at 10:00 AM in De Doelen, entrance Jurriaanse Zaal, Kruisplein 30, 3012 CC in Rotterdam.
1.
Opening
2.
Rights issue and amendments of the articles of association (voting item)
(i) Amendment of the articles of association providing for the consolidation of shares in the
share capital of the company
(ii) Amendment of the articles of association, providing for the increase of the number of
shares included in the authorised share capital of the company
(iii) Authorisation to issue ordinary shares and to limit or exclude pre-emptive rights in
connection with the proposed rights issue:
a) designation of the Board of Management, subject to the approval of the
Supervisory Board, as the body authorised to issue ordinary shares and to
grant rights to subscribe for ordinary shares in relation to the proposed
rights issue for a period of 6 months; and
b) designation of the Board of Management, subject to the approval of the
Supervisory Board, as the body authorised to limit or exclude the preemptive rights in relation to the issue of ordinary shares and grant of rights
to subscribe for ordinary shares, under the proposed rights issue for a
period of 6 months.
3.
Any other business
26 August 2014
*
The proposals to amend the articles of association (including an explanation thereto in a triptych) can
be viewed and downloaded via www.imtech.com. In addition, these documents will be available for
inspection at the offices of the company (Kampenringweg 45a, 2803 PE Gouda, the Netherlands) and
at ABN AMRO Bank N.V. (email [email protected] / telephone +31 (0)20 344 2000),
Gustav Mahlerlaan 10, 1082 PP Amsterdam, the Netherlands). A copy can be obtained from there free
of charge.
**
Each proposal to amend the articles of association includes the proposal to authorise each member of
the Board of Management and any and all lawyers and paralegals practising with De Brauw Blackstone
Westbroek N.V. to execute the notarial deeds of amendment of the articles of association.
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NOTES TO THE AGENDA
Re 2 Rights issue and amendments of the articles of association
Disclaimer
This agenda item does not constitute an offer to sell, or a solicitation of an offer to purchase or a
recommendation to purchase any securities to, or from, any person in any jurisdiction, including the
United States. The Offer Securities (as defined in the Annex Rights Issue referred to below) have not
been and will not be registered under the United States Securities Act, or with any securities
regulatory authority of any state or other jurisdiction in the United States, and may not be offered, sold,
pledged, delivered or otherwise transferred except pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the United States Securities Act and in compliance with
any applicable state securities laws.
General introduction
On 18 March 2014, the company announced to enter the next phase of its operational and financial
recovery, for which a further significant debt reduction is required. To facilitate this debt reduction, the
general meeting of the company resolved at its Annual General Meeting on 22 May 2014 to reduce
the nominal value of each share, to provide for flexibility to strengthen the equity of the company
through an issue of shares. On 31 July 2014, the company announced that it had initiated discussions
with its financiers regarding an amendment of its finance agreements including financial covenants.
On 26 August 2014, the company announced the outcome of these discussions including the need for
a reinforcement of its equity position through an issue of ordinary shares (the "Rights Issue").
Pursuant to the Rights Issue ordinary shares will be issued whereby existing holders of ordinary
shares will be granted transferable rights pro rata to their ordinary share holdings at a specific
record date to subscribe for new ordinary shares. A more extensive explanation of the Rights Issue
has been included in a separate annex, which is available for inspection at the offices of the
company and at ABN AMRO Bank N.V. and will be published on www.imtech.com (the "Annex
Rights Issue").
The purpose of this Rights Issue is to realise proceeds up to EUR 600 million (gross). The entire
proceeds of the Rights Issue will, after deduction of costs, be exerted to reduce debt in order to
strengthen the company's capital structure and comply with the ratios under the company's
financing documentation. The Board of Management and the Supervisory Board hold that it is in
the best interest of the shareholders and other stakeholders of the company that the capital
structure is strengthened by means of the Rights Issue.
In connection with the Rights Issue, the general meeting will be requested to resolve to:
(i)
amend the company's articles of association to consolidate the issued ordinary shares and
cumulative financing preference shares in the share capital of the company (the "Share
Consolidation");
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(ii)
(iii)
amend the articles of association to increase the number of shares included in the
authorised share capital of the company (the "Increase Authorised Share Capital"); and
authorise the Board of Management to resolve to issue or to grant rights to subscribe for
ordinary shares and to exclude pre-emptive rights in relation to such issue or grant of rights
to subscribe for ordinary shares (the "Issue Authorisation").
To provide for flexibility the sequence of the implementation of the Share Consolidation and the
Increase Authorised Share Capital is not yet determined. Two scenarios are conceivable:
• Scenario A: (i) first the Rights Issue and the therefore required Increase Authorised Share
Capital, followed by (ii) the Share Consolidation; or
• Scenario B: (i) first the Share Consolidation followed by (ii) the Rights Issue and the
therefore required Increase Authorised Share Capital.
The Board of Management will determine which of these two scenarios will be implemented,
subject to the approval of the Supervisory Board.
The verbatim text of the amendments of the articles of association required to implement Scenario
A or B is included in four three-part documents (the "Triptychs"). The Triptychs are published on
www.imtech.com and are also available for inspection at the company's offices and at ABN AMRO
Bank N.V. Each proposed resolution will be explained in detail under the respective items listed
below.
The proposals included in this agenda item are approved by the Supervisory Board.
(i)
Share Consolidation
The Share Consolidation serves to increase the market value per ordinary share. As a result of the
current low share price, a minor increase or decrease of the price per share results in a significant
relevant fluctuation in the market capitalization.
To maintain a one vote per share principle, the company proposes to consolidate the cumulative
financing preference shares accordingly. The voting rights attached to a share are linked to its
nominal value. If the cumulative financing preference shares would not be consolidated, the
nominal value of the cumulative financing preference shares would remain EUR 0.01 (after the
implementation of the amendment of the articles of association in accordance with the resolution of
the general meeting adopted at the Annual General Meeting of 22 May 2014) and the holder of
ordinary shares would be entitled to cast multiple votes per share (up to the number of the
consolidation ratio).
Consolidation ratio ordinary shares
The consolidation ratio that will be applied to determine the number of ordinary shares resulting
from the Share Consolidation will be determined as follows:
A
--- =
B
1
--Y
Whereby:
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A =
B =
Y =
the volume weighted average market price (VWAP) of the ordinary shares on the
trading day preceding the day of the Share Consolidation.
the contemplated (theoretical) market price of the ordinary shares after the Share
Consolidation as determined by the Board of Management, within a range of EUR 5
to EUR 15, notwithstanding the Consolidation Maximum, and subject to Supervisory
Board approval, which price must be such that Y is a whole number not higher than
500 (the "Consolidation Maximum").
the number of ordinary shares that will be consolidated into 1 ordinary share.
Consolidation ratio cumulative financing preference shares
The consolidation ratio that will be applied to determine the number of cumulative financing
preference shares resulting from the Share Consolidation will be equal to the consolidation ratio
that will be applied to determine the number of ordinary shares, provided that the number of
cumulative financing preference shares of each series resulting from the share consolidation will be
rounded upwards in such way that no fractional shares (onderaandelen) arise. As a result of the
adjustment of the result of the consolidation ratio, a holder of cumulative financing preference
shares will have one cumulative financing preference share per series more than he would have
had if no rounding was applied. Currently there is one holder of cumulative financing preference
shares.
Consequences for shareholders
a)
Ordinary shares held through the giro system (Euroclear Nederland)
If a person holds a number of ordinary shares through the giro system which is not exactly
divisible in accordance with the consolidation ratio, his bank or broker will round the
shareholding up or down, in accordance with the particular contractual arrangement
between that bank or broker and the shareholder. Settlement and rounding-off will be done
in the customary manner by the banks or brokers. In general, a fractional entitlement of half
a share or more held will be rounded up against payment of the missing fractional
entitlement, a fractional entitlement of less than half a share held will be rounded down
against settlement of the remaining fractional entitlement. Fractional entitlements will not
be traded on Euronext Amsterdam.
b)
Ordinary shares held outside the giro system
A person that holds a number of ordinary shares outside the giro system which is not
exactly divisible in accordance with the consolidation ratio, will receive fractional shares.
Fractional shares entitle the holder thereof to a (pro-rata) fractional dividend. However, the
fractional shares only entitle the holder thereof to cast a vote acting jointly with other
holders of fractional shares whose fractional shares make up for one share. To
compensate the shareholders that acquired fractional shares as a result of the Share
Consolidation for their loss of voting rights, the company grants these holders of fractional
shares the right to acquire one (full) ordinary share against delivery by the shareholder of
the fractional shares acquired as a result of the Share Consolidation. This offer does not
apply to shareholders that acquired shares pursuant to a transaction after the Share
Consolidation. The right to exchange the fractional shares for one ordinary share shall not
apply to a person to whom such right cannot be granted under applicable law without
further formalities. Holders of fractional shares who wish to exercise this right are
requested to contact the company to implement this exchange before 31 May 2015.
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c)
Cumulative financing preference shares
The creation of fractional cumulative financing preference shares will be prevented by a
negligible adjustment of the number of shares resulting from the application of the
consolidation ratio.
With regard to each holder of cumulative financing preference shares, the number of
cumulative financing preference shares of each series originating from consolidation will be
rounded upwards to the first round number. This rounding up will not result in an increased
dividend entitlement or other economic benefits for the holder of cumulative financing
preference shares. The obligation to pay up this additional share(s) will be charged to the
share premium reserve attached to the respective series.
The holder of the cumulative financing preference shares will have an additional vote as a
result of the rounding. Pursuant to contractual terms and conditions attached to the
cumulative financing preference shares, the shareholder shall not have the right to cast this
vote(s).
Cumulative preference shares
Currently no cumulative preference shares are outstanding. Therefore, no consolidation of issued
cumulative preference shares will take place.
To maintain the ratio between the number of ordinary shares and cumulative preference shares, it
is proposed to reduce the number of cumulative preference shares in the authorised share capital
and to set the same nominal value for such shares as for the other classes of shares after the
Share Consolidation. The number of cumulative preference shares in the authorised share capital
shall be rounded upwards to the nearest million. Reference is made to Tryptich II of Scenario A
and Tryptich I of Scenario B and Annex Sample Calculation Share Consolidation.
(ii)
Increase Authorised Share Capital
To enable the Rights Issue it is proposed to increase the number of ordinary shares in the authorised
share capital of the company by means of an amendment to the articles of association taking into
account the following:
a.
b.
Dutch law provides that at least one-fifth (1/5) of the authorised share capital needs to be
issued, meaning that the nominal value of the total authorised share capital cannot exceed
five times the issued share capital; and
the issued share capital depends on the number of ordinary shares that will be issued in
connection with the Rights Issue.
Therefore it is proposed to increase the number of ordinary shares included in the authorised share
capital to a number equal to 150% of the total number of ordinary shares in issue after the Rights
Issue (rounded upwards to the nearest million). This leaves sufficient flexibility for the general
meeting to resolve upon a redemption of shares (taking into account the Dutch law requirement
mentioned under a), or an issue of new shares (taking into account the Dutch law requirement
mentioned under b), without an amendment of the articles of association being required).
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Furthermore, it is proposed that the number of cumulative financing preference shares included in
the authorised share capital will be increased pro rata to the increase of the number of ordinary
shares and also rounded upwards to the nearest million. The number of cumulative preference
shares will not be increased in connection with the Increase Authorised Share Capital.
(iii)
Issue authorisation
In accordance with article 6 of the company's articles of association, it is requested that the Board
of Management be designated as authorised, subject to the Supervisory Board's approval, to issue
ordinary shares and to grant rights to subscribe for ordinary shares and to limit or exclude the preemptive rights upon issuing and/or the granting of rights to subscribe for ordinary shares.
The exact number of shares to be issued in connection with the Rights Issue and the issue price
for the new shares will be determined immediately prior to the launch of the Rights Issue. The
aforementioned authorisations are requested for a number of shares to be issued sufficient to
receive a total amount of EUR 600 million (gross proceeds).
The authorisations will be subject to the execution of the deed of amendment of the articles of
association as referred to under item (ii), the Increase Authorised Share Capital.
The authorisations are asked for a period of 6 months from the date of this extraordinary general
meeting.
A Dutch version of this agenda and the explanatory notes thereto is also available and can be
viewed and downloaded via www.imtech.com. In the event of any differences, either in
interpretation or otherwise between this English translation and the Dutch version, the English
language will prevail.
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