The Swiss Cantonal Court of Zug has denied Schenker-Winkler Holding’s (SWH) request to hold an extraordinary shareholders meeting for Swiss specialty chemical company Sika AG. The Burkard family-owned company, SWH, controls 16.1 percent of Sika’s capital with 52.4 percent in voting rights. SWH plans to sell its stake in Sika to French-conglomerate Saint-Gobain. Via the special meeting, SWH sought to oust certain Sika board members who voiced opposition to the deal. Now that topic will be addressed during the regular annual shareholders meeting in April.
“The court ruled that it does not make sense to hold such a meeting shortly before the ordinary shareholders meeting and that no particular urgency exists,” according to a statement from Sika.
Sika management seeks to limit SWH’s voting rights during the shareholders meeting, which could hinder the Burkard family’s deal to sell to Saint-Gobain.
“The court expressly left the issue on the limitation of the voting rights open,” according to Sika’s statement.
The way the deal is set up, Saint-Gobain does not have to reimburse or buy the remaining shares to gain controlling voting interest in Sika due to an opting-out clause, according to Sika’s investors. This means that the Burkard family, which owns the majority of voting rights in Sika, could sell its stake to Saint-Gobain without the rest of the shareholders benefiting from such a deal.
The Swiss Takeover Board has “confirmed the basic validity of the opting-out clause,” according to a statement from Sika.
“However, the essential question of whether the obligations to make an offer [to remaining shareholders] would apply in the event of the planned sale of Sika to Saint-Gobain remains open,” according to a report from Sika’s board of directors. “The board of directors is still of the view that the opting-out clause does not have any effect on the current case. Invoking the clause damages the basis of trust created by the Burkard family and violates the limitations set out in the articles of association for the protection of public shareholders (limitation on transferability). In the view of the board of directors of Sika, such a course of action would be abusive. … Opposition to the planned takeover by Saint-Gobain is based on the board of directors’ analysis, which concludes that Sika corporate interests are endangered in a lasting manner. Evidently, the vast majority of public shareholders share these economic concerns,” according to Sika’s report.
Sika’s next annual shareholders meeting is set for April 14, 2015.
The agenda includes several items proposed by SWH and Sika. Members of Sika’s board of directors are up for re-election.
“The board of directors supports the re-election of Urs F. Burkard, Jürgen Tinggren and Willy K. Leimer. However, in view of the opposition of Schenker-Winkler Holding AG (SWH) to current board members—Monika Ribar, Dr. Paul Hälg (chairman) and Daniel J. Sauter—these members and Frits van Dijk, Ulrich W. Suter and Christoph Tobler will only make themselves available if all are re-elected and Dr. Paul Hälg is confirmed as chairman,” according to Sika’s agenda for the meeting.
“If only some of them are re-elected, the majority structure of the board of directors would be fundamentally altered and the independent board members would find themselves unable to represent the interests of the company and all its shareholders and would therefore not accept re-election,” according to Sika’s statement.
SWH proposes that Dr. Max Roesle be elected to the board as chairman.
“The board of directors recommends that SWH’s proposal be rejected. In the board’s view, Dr. Max Roesle does not have the industrial and management experience required to lead a global corporation,” according to Sika’s statement.
In another move, a shareholder group, led by Ethos, proposes that the opting-out clause be deleted during the meeting.
“The board of directors recommends that this proposal be approved,” according to Sika’s statement.
Also during the meeting, a shareholder group, including the Bill and Melinda Gates Foundation Trust, Cascade Investment, Fidelity Worldwide Investment and Threadneedle Investments, will propose that a special audit be conducted regarding the events leading up to the announcement of the planned transaction by SWH and Saint-Gobain.
“In particular, the special audit would investigate the question of whether within the 24 months prior to the 2015 annual general meeting, non-public information regarding Sika AG was made available to Saint-Gobain or SWH. In addition, the special audit would clarify whether any arrangements have been made between board members and Saint-Gobain or SWH,” according to Sika’s statement.
The shareholder group also proposes that a special expert committee be appointed until at least the 2017 annual general meeting.
“This committee would review and investigate the future conduct of business of Sika AG relating to SWH, the Burkard family and Saint-Gobain, particularly with regard to its effect on the public shareholders,” according to Sika’s statement.
Saint-Gobain has not issued any new statements at press time.
Earlier this year, when announcing financial results, Saint-Gobain management said their “commitment is irrevocable” to acquire a controlling interest in Sika.