GENERAL Issue date April 1998 July 1999 January 1998 January 2000 July 1999 October 1996 Originator(s) OECD International Corporate Governance Network Tittle OECD Principles of Corporate Governance Statement on Global corporate Governance Principles Committee on Corporate Governance London Stock exchange Principles of good governance and code of best practice What triggered the report? Asia-crisis The OECD report The need for a single recommendation's report Stated objective Assist governments in Give a practical guidance on To produce a set of evaluating and improving the how the OECD principles principles and codes which legal, institutional and regulatory framework for corporate governance could be implemented embraced Cadbury, Greenbury and the Committee's own work To provide guidance and suggestions for stock exchanges, investors, corporations, and other parties that have a role in the process of developing good corporate governance German Panel on Corporate Governance Corporate Governance rules for quoted German companies To promote the confidence of shareholders, lenders, employees business partners and the general public in national and international markets Association francaise des Amsterdam Stock Exchange entreprises privées (AEFP) Mouvement des entreprises Vereniging van Effecten de France (MEDEF) Uitgevende Ondernemingen Recommendations of the Recommendations on Committee on Corporate Corporate Governance in Governance chaired by Mr. the Netherlands Marc Vienot To have a better management and image to the public and investors To complete the first Vienot Report Board could dissociate CEO/Chairman There should be more information on remuneration and stock-options plans Deadlocked discussion on take-over defences Increase the accountability of management towards shareholders Targeted companies Listed companies Listed companies Listed companies Listed companies Listed companies Listed companies Could be extended to non Could be extended to non One-tier Board structure Two-tier Board structure One-tier Board structure Two-tier Board structure listing companies listing companies Any Board structure Any Board structure Two-tier Board structure Enforcement Recommended on a voluntary basis Recommended on a voluntary basis Recommended on a voluntary basis Recommended on a voluntary basis Recommended on a voluntary basis Recommended on a voluntary basis Déminor Nederland 24-08-2001 Page 1
RIGHTS AND DUTIES OF SHAREHOLDERS Voting right restrictions General Voting right ceiling Depository receipts Shareholders agreement Voting issues General The principle is that all shareholders of the same class should be treated equally and all voting restrictions should be disclosed Should be disclosed Should be disclosed Shareholders have the right to participate in and to be sufficiently informed on decisions concerning fundamental corporate changes Any divergence to the principle "One vote for one share" should be disclosed and justified Major strategic modifications to the core businesses should not be made without prior shareholder approval Process and procedures for AGM should allow equitable treatment of all shareholders Shareholders proposals and derivatives actions General Shareholders should have See ICGN 'Global Share the opportunity to ask Voting Principles' adopted questions and to place items July 10, 1998 on the agenda Process and procedures for AGM should allow equitable treatment of all shareholders The basic principle is "one share-one vote", except under certain circumstances. However priority shares, preference shares could be used, with the agreement of the AGM Holders of depository receipts should be able to vote On certain important issues investors should be allowed to exert their influence Investors representing 1% of issued capital (or a value of at least f500.000) should be able to propose matters for the agenda 30 days before AGM Déminor Nederland 24-08-2001 Page 2
Voting procedures Notice of the meeting Shareholders should have timely information concerning the date, location and agenda of general meetings Shareholders should have At least 20 working days timely information before AGM concerning the date, location and agenda of general meetings AGM attendance Not to be required Not to be required Proxy Voting Recommended and in favour Recommended and in favour Recommended in order to of telephonic and electronic voting The role of stakeholders General The corporate governance framework should recognise the rights of stakeholders as established by law and encourage active cooperation between corporations and stakeholders in creating wealth, jobs, and the sustainability of financially sound enterprises ABSENCE OF TAKEOVER DEFENCES Anti-take-over devices should not be used to shield management from accountability of telephonic and electronic voting and should disclose voting results for each resolution Co-operation between corporations and stakeholders is essential. Performance-enhancing mechanisms promote employee participation and align shareholder and stakeholder interests. These include broad-based employee share ownership plans or other profit-sharing programs enter into a dialogue with private investors and encourage their participation Against increase in capital after a take-over bid has been made Proxy solicitation systems should be introduced High shareholder value can only be achieved if the interest of all stakeholders are taken into account (by the board) Protective measures can within certain limits be accepted in case of hostile take-over bids Déminor Nederland 24-08-2001 Page 3
DISCLOSURE ON CORPORATE GOVERNANCE General disclosure Disclosure should include: Accurate, adequate and _ The financial and timely information should be operating results disclosed _ Company objectives _ Material foreseeable risk factors _Members of the boards and their remuneration _Material issues regarding employees and stakeholdes _Governance structures and policies Availability and language of documents Provide for fair, timely and cost-efficient access to relevant information by users All major events and the financial calendar should be published The main principles of corporate governance should be outlined in the annual report Information on shareholders and participants Major share ownership and voting rights should be disclosed Major share ownership and voting rights should be disclosed This information has to be on Internet and in English (invitation to AGM, agenda ) List of the participations of more than 10% Notification of the obtention by a party holding, or not holding any more, 5, 10, 25, 50 or 75% of the voting rights Déminor Nederland 24-08-2001 Page 4
RESPONSIBILITIES OF THE BOARD The board should: _Review and guide corporate strategy _Select, compensate monitor and replace key _Review board remuneration and the nomination process _Monitor potential conflicts of interest _Ensure the integrity of the company's accounting and reporting _Monitor the effectiveness of governance practices _Oversee disclosure and communications Board disclosure Information on members Investors require information Backgrounds should be on individual board members disclosed to the and key executives in order shareholders, and the to evaluate their experience nomination procedures and qualifications and assess any potential conflicts of interest that might affect their judgement The Supervisory Board: _Advises the management board on a regular basis and monitors the achievement of long term corporate goals _Subject to certain transactions to its approval _Members are bound to confidentiality _Mandates the auditors The annual report should mention: _ Age _ Major executive position _ Major directorships _ Biographical notice _ Term of appointment _Supervisory Board is responsible for the supervision of management policy and the general course of affairs in the company _The Board of Directors and the Supervisory Board should have the confidence of the AGM The annual report should mention the particulars of each Supervisory Board member A profile of the Supervisory Board should be available Information on independent directors Information on Workings of the board Should be disclosed Independent directors should be identified in the annual report Independent Directors should be identified as such in the annual report The number of meetings held should be mentioned in the annual report Déminor Nederland 24-08-2001 Page 5
Disclosure of the compensation granted Board and executive remuneration are also of concern to shareholders The annual report should contain: Disclosure of stock options or stock repurchase plans Disclosure on committees Companies are generally expected to disclose sufficient information on the remuneration of board members and key executives (either individually or in the aggregate) Investors should have enough information to properly assess the costs and benefits of remuneration plans and the contribution of incentive schemes, such as stock option schemes, to performance Corporations should disclose in each annual report the boards' policies on remuneration - and, preferably, the remuneration break up of individual board members and top executives _A statement of remuneration policy _Details of remuneration of each director However it should not be a separate item on the agenda Shareholders should be informed about: _Existence of the various committees _Number of members in the various committees _Chairman of the various committees The fixed and variable remuneration elements of the management board should be detailed in the Annual Report A chapter in the annual report (prepared with the Remuneration Committee) will describe: _The policy of remuneration for the general management team _The aggregate amount of compensation for corporate officers _The aggregate and individual amount and rules concerning attendance fees paid to the Directors The interest of shares and A chapter in the annual changes from year to year report (related to the has to be disclosed in the structure of the stock and annual report, but also: prepared with the _The structure of the stockoptions Remuneration Committee) plan will describe: _The total amount _The policy of attribution _The exercise price and _All the conditions of the period plan _The allocation of shares _A recapitulating table and options stating the number of shares held by each Director Total compensation of Directors must be published, the aggregate sum and a split into former Directors and current Directors The annual report should specify the aggregate number of securities and the following details for the Board of Directors (with the most significant conditions): _Shares/certificates of shares _Convertible bonds _Marketable options _Options issued by the company The stock options granted to the joint members of the Board of Directors and to other employees should be included in the annual report together with most significant conditions Existence of the various committees should be mentioned in the annual report Déminor Nederland 24-08-2001 Page 6
BOARD STRUCTURE Election of the board(s) Terms of Office Maximum three years Maximum four years Should be staggered so as to avoid renewal as a whole Election of the board members Composition of the board(s) General philosophy Non-accumulating of directorship Executive Board members should devote sufficient time to their responsibilities All the members should represent all the shareholders There should be a formal and transparent procedure for the appointment of new directors All directors should be required themselves for reelection Against accumulation of more than five directorships Supervisory board members appointed for limited period Reappointment of Supervisory Board members should be given careful consideration and should not be automatic The Supervisory Board should be composed in such a way that its member operate independently and critically in relation to each other and the Board of Directors Against accumulation of directorship Not in favour to delegate one Supervisory Board member to the Board of Directors Former executive Representatives of specific categories Board interlocks Not more than one former member of the company's Board of Directors Supervisory board members appointed by nomination should act free from those who nominated them Not in favour of cross shareholding and reciprocal directorship Déminor Nederland 24-08-2001 Page 7
Independent directors Definition of independent directors The independent director should be: _Independent of management _Free from any business or other relationship that could interfere with the exercise of their independent judgement Contracts with members of the Supervisory Board require the approval of the Supervisory Board "A director is independent of the corporation's management when he or she has no relationship of any kind whatsoever with the corporation or its group that is such as to jeopardise exercise of his or her free judgement" Number of independent directors Boards should consider assigning a sufficient number of non-executive board members capable of exercising independent judgement to tasks where there is a potential for conflict of interest Boards should include an appropriate number of independents The majority of nonexecutive should be independent (Non less than one third should be nonexecutive) One third of the Board Measures aimed at enhancing the independence of Supervisory Board members Working of the board(s) Roles of the board(s) Information due to members of the board(s) The board should exercise objective judgement on corporate affairs, independent, in particular, from management In order to fulfil their responsibilities, board members should have access to accurate, relevant and timely information The Board should be The Supervisory Board shall supplied with information in a receive at least annually a form and of a quality report with regard to appropriate to enable it to donations exceeding a discharge its duties certain amount The specific duties of the Supervisory Board and its chairman are laid down in the regulations of the Supervisory Board At least once a year the Supervisory Board should review strategy and risks attached, its own functioning and the relation with executive directors The Board of Directors should report in writing on (quantified) strategic objectives and associated risks Independent professional advice There should be a procedure to take independent professional advice at the company's expense The board committees There should be a procedure should be able to request to take independent technical reviews of matters. professional advice at the company's expense Déminor Nederland 24-08-2001 Page 8
Number of meetings held The Board should meet regularly Members should attend at least half of the meetings, otherwise it will be written in the annual report. Must be specified in annual report There should be a predetermined timetable Review of the structure Board 's members responsibilities Split chairman / CEO General Any potential conflicts of interest should be disclosed to the Boards Directors could not profit from short term gains of their shares There should be a clear division of responsibilities, such that no one individual has unfettered powers of decision If it is the case it must be publicly justified Supervisory Board members must disclose any conflict of interest to the chairman, unless they retire for cause Directors could not profit from short term gains of their shares The Board should review on a periodic basis its membership, organisation and operation and this review should be notified in the annual report In favour for the introduction in the French law of an alternative allowing the Board of Directors to opt for the combination or separation This resolution should always be subject to a potential further reversal. The separate duties have to be described (also in the annual report) CEO will need to be a Director At least one meeting of the Supervisory Board without executives being present The Supervisory Board should review on a periodic basis its membership, organisation and operation and this review should be notified in the annual report A member of the Supervisory Board facing a conflict of interests should immediately inform its chairman Any semblance of a conflict of interest between the company and directors should be avoided Two-tier system: chairman of the Supervisory board cannot be the chairman of the board of directors Déminor Nederland 24-08-2001 Page 9
Remuneration General philosophy Participation of members of the board(s) Performance related pay Remuneration of corporate directors or supervisory board members and key Levels of remuneration should be sufficient to attract and retain the directors executives should be aligned needed to run the company with the interests of successfully shareholders Remuneration should be attributed through a formal and transparent procedure Broad-based employee share ownership plans or other profit-sharing programs are effective market mechanisms that promote employee participation The remuneration of the Management Board and the employees in general shall include sufficient motivation to ensure long-term corporate value creation A proportion of Executive Recommended director's remuneration should be linked to corporate and individual performance Accepted for the Supervisory Board, but for long-term investment Members of the Board of Directors should be able to be or become shareholders, also for long term Not for Supervisory Board members Stock options Recommended Not given at a discount save Recommended Not for Supervisory Board members The vesting period should be of minimum two years For employee it should be over long term (at least 3 years), related to performance Committees Audit committee General Recommended Recommended Recommended Recommended Left to the decision of the Supervisory Board Workings Composition Remuneration committee Composed wholly or predominantly of independent directors Keep under review the scope and the results of the audit and its cost and effectiveness If auditors provide non-audit services, it should be kept under review At least three directors, all non-executives A majority should be independent Keep under review the scope and the results of the audit and its cost and effectiveness The audit committee has to report to the Board the workings and the remuneration of audit and consulting He should help to the selection of accounting standards At least one third independent directors Déminor Nederland 24-08-2001 Page 10
General Recommended Recommended Recommended Recommended Left to the decision of the Supervisory Board Workings The remuneration committee Deals with the personnel should compare and judge issues of the Management their remuneration packages Board, including it succession planning Deals with remuneration Composition Composed wholly or predominantly of independent directors Only independent directors A majority of independent directors Nomination committee General Recommended Recommended Recommended Recommended Left to the decision of the Supervisory Board Workings Composition Other committees Composed wholly or predominantly of independent directors Unless the board is small, it should recommend on all new members appointment A majority should be nonexecutives The chairman should be either the chairman of the Board or a non-executive Director In charge of the composition of the Supervisory Board only Others committees have to be established: _ General committee _Personnel committee _ Market and Credit Risk Committee _ Mediation Committee Should draw a plan for the Succession of the Executive The chairman should be a member, but not its chairman At least one third independent directors Déminor Nederland 24-08-2001 Page 11
COMPLIANCE Statement of compliance Institutional investors Companies are encouraged to report on how they apply relevant corporate governance principles in practice. Disclosure of the governance structures and policies of the company, in particular the division of authority between shareholders, management and board members is important for the assessment of a company s Shareholders, including institutional investors, should consider the costs and benefits of exercising their voting rights Institutional investors have fiduciary obligation to vote their shares, subject to considerations of excessive costs and obstacles Listing requirement of the London Stock Exchange The statement should include explanations for deviation to the recommendations There should be the possibility of a dialogue with institutional shareholders Moreover, Institutional investors have responsibility to make considered use of their votes The rules, their acceptance, implementation and respective adjustments to the specifics of individual company shall be communicated in the annual report Listed corporations should specify clearly, in their annual reports, compliance with the recommendations of the 1995 report and the 1999 recommendations, and explain, if applicable, the The principles of Corporate Governance should be explained in the annual report. reasons for not implementing There should be a statement some of them of compliance with the recommendations and a motivated explanation of deviations For institutional investors disposing of an equity participation ('voting with one's feet') is certainly not an effective way of asserting their influence, nor is it always possible or desirable Déminor Nederland 24-08-2001 Page 12