What preceded this?
On November 3, 2022, the OK previously ruled on the Centric case. In its decision of November 10, 2022, the OK ruled for the time being that there are well-founded reasons to doubt the correct policy and course of affairs of Centric, and the OK made the following immediate provisions: (i) Mr. Sanderink has been suspended as director of Centric, (ii) mr. Wakkie has been appointed as executive director of Centric whereby it is stipulated that he is independently authorized to represent Centric, (iii) Mr. Meijer has been appointed as non-executive director of Centric, also chairman of the board with a casting vote, (iv) the shares in Centric held by Mr. Sanderink, with the exception of one share, have been transferred to Mr. Evers (hereinafter: the administrator) by way of management, and (v) Centric's resolution of November 2, 2022 to suspend Mr. Mous as non-executive director of Centric has been suspended. On January 19, 2023, the second oral hearing took place regarding Centric. During this oral hearing, the OM and Centric requested the OR to investigate Centric's policy and affairs. It also requested one additional immediate injunction, namely: transfer of all shares to the administrator. For a detailed account of the hearings, see my earlier blogs: blog (1) and blog (2). On January 27, 2023, the OK ruled on whether or not to: (i) order an investigation and (ii) transfer the last share held by Mr. Sanderink to the administrator
OR review - examination of policy and course of action
The course of events surrounding Centric in recent years shows that Centric's board of directors has not been able to operate sufficiently independently and autonomously and that in doing so, the interests of Centric and the company it runs are insufficiently separated from Mr. Sanderink's private interests, according to the OR. According to the OR, this is evidenced, among other things, by the fact that a large number of management changes occurred at Centric in the course of 2019. There is the impression that Mr. Sanderink does not tolerate dissent or criticism and that members of the board who are disagreeable to him have to step down each time.
Mr. Sanderink is not sufficiently able to keep Centric's interests separate from his private interests and from his conflict with Ms. Van Egten. This assessment is reinforced by what Mr. Sanderink brought forward at the hearing of January 19, 2023. At no point did Mr. Sanderink show any awareness of Centric's existing significant problems or reflect on his own part in them, and what would now be in Centric's interest, according to (still) the OR.
On Nov. 3, 2022, the state of affairs was that the board of Centric Holding consisted solely of Mr. Sanderink. Auditor RSM had withdrawn and insurer Zurich had cancelled its cyber security policy. ASML and DNB, among others, had not renewed or terminated their contract with Centric. Major customers including Arbo Unie, PGGM and Bank Nederlandse Gemeenten were considering ending their relationship with Centric. There was great unrest among Centric staff who were threatening to leave. Some of the staff had already left. Recruitment of new staff was stalled. This left Centric facing high costs for the necessary hiring of people to cover for departing staff. Centric's Dutch operations had become loss-making as a result. According to the OK, all this posed a direct and acute threat to the continuity of Centric and its affiliated company.
According to the OR, it follows from the foregoing that there are valid reasons to doubt that Centric's policy and proper course of business in the period up to November 3, 2022 warrant an investigation. The OR therefore ordered an investigation into the policy and affairs of Centric Holding, Centric Netherlands Holding and Centric Netherlands in accordance with the requests of the Solicitor General and Centric, from January 1, 2018 to November 3, 2022.
The Enterprise Chamber will ask the investigator to prepare a plan of action and an estimate of the cost of the investigation within six weeks and send it to the Enterprise Chamber.
OK's assessment - transfer of last share from Mr. Sanderink
The Enterprise Chamber, by oral ruling on November 3, 2022 and by order on November 10, 2022, suspended Mr. Sanderink as a non-executive director of Centric, appointed Wakkie and Meijer as executive and non-executive directors of Centric, respectively, and transferred the shares held (indirectly) by Mr. Sanderink in Centric, with the exception of one share, to Evers as share trustee.
The administrator repeatedly tried to get in touch with Mr. Sanderink after Nov. 10, 2022. This was unsuccessful. Letters, calls and voicemail messages were not answered. Even through the intervention of his attorney, Mr. Sanderink proved unreachable. The administrator has asked Mr. Sanderink whether he could agree to decision-making outside the meeting regarding the appointment of a new non-executive director and the (re)appointment of RSM as auditor. There was no response to this either. When asked, Mr. Sanderink said at the hearing that he wanted peace and did not need contact with the administrator at that time.
Against this background, Centric based its request to also transfer the last (indirect) share held by Mr. Sanderink to the administrator by way of management on the fact that decision-making outside of meetings is not properly possible at this time and that this leads to unnecessary delays in decision-making in Centric Holding's general meeting. In addition, Centric has argued that Mr. Sanderink's presence at the general meeting significantly impedes the restoration of healthy relations within the company and relations with its customers and business service providers. The yet-to-be-appointed executive and non-executive directors and the auditor are reluctant because they do not want to face Mr. Sanderink and his conflict with Ms. Van Egten in the general meeting. Clients set the condition for restoration of the relationship that it is clear that Mr. Sanderink will no longer be involved with Centric in any way. The way in which Mr. Sanderink continues to focus on the dispute with Ms. Van Egten and his suspected collusion with Ms. Van Rijbroek and himself is causing lasting unrest within the company that can only be removed when it becomes clear that Mr. Sanderink is no longer formally involved with Centric's organization in any way. Centric must now look to the future, Centric said.
The Enterprise Chamber decided by oral decision on November 3, 2022 that one of the shares (indirectly) held by Mr. Sanderink in Centric was not transferred to the administrator. This exception for one share was made in order to give Mr. Sanderink the opportunity to attend the general meeting and, by doing so, keep abreast of the ins and outs of the company and its affiliated business and to be able to put any questions to the management board. Ultimately, it makes no difference for decision-making in the general meeting; all decisions can be taken in Centric's general meeting without requiring unanimity, the OR said.
At the hearing on January 19, 2023, the administrator agreed, when asked, to keep Mr. Sanderink informed at all times of the proposed decision-making at the general meeting and to discuss it with him in advance, if he so desired. Centric's board expressed its willingness to answer generously any questions Mr. Sanderink might have within reasonable limits. Mr. Sandrink's material interest in retaining one share in Centric Holding has therefore lapsed, the OR said.
Moreover, the OR endorses Centric's interest in being able to make swift decisions in the general meeting, even outside the meeting, if necessary. Added to this is the interest of Centric and those involved in its organization to now be able to look to the future and not have to be confronted in the general meeting with the conflict between Mr. Sanderink and Ms. Van Egten and the underlying conspiracy against Ms. Van Rijbroek and himself, as Mr. Sandrink believes. With that state of affairs, it is necessary, in view of Centric's situation, that by way of immediate provision, for the duration of the proceedings for the time being, the last (indirect) share held by Mr. Sanderink should also be transferred to the administrator by way of management.
