The hearing & the prosecution
An oral hearing was held last Thursday, Nov. 3, 2022, which dealt with whether or not to grant immediate injunctive relief. The Prosecution had requested a number of provisions, namely: (i) suspending Mr. Sanderink as a non-executive director, (ii) transferring the shares in Centric by title of management, (iii) reversing the suspension of Mr. Mous (Mr. Mous was suspended as a non-executive director by Mr. Sanderink on November 2, 2022, in order to prevent Mr. Mous from speaking), and (iv) temporarily appointing an executive director with casting vote.
The prosecution based its request on the fact that Mr. Sanderink's return to Centric had caused great concern within the company. The accounting firm RSM Netherlands B.V. (RSM), is said to have terminated the accounting work, customers and employees are said to have issued an ultimatum; if Mr. Sanderink did not leave, both some customers and employees of Centric would leave. The prosecution believes that peace could return to Centric only if Mr. Sanderink remained aloof from this company.
The Works Council
The Works Council (OR) agreed with the OM's assertions, adding that Mr. Sanderink does not accept dissent: "Whoever disagrees with Mr. Sanderink will be flown out. According to OR's lawyer, Mr. Sanderink would not tolerate directors trying to keep him at some distance from Centric. In addition, customers would no longer want to be associated with Centric at the hands of Mr. Sanderink. The OR endorsed the need for the immediate provisions requested by the OM.
Mr. Mous
Mr. Mous, who had been suspended as a non-executive director by Mr. Sanderink on November 2, 2022, was nevertheless allowed to speak at oral argument. He indicated that last Tuesday, Mr. Sanderink first informed Mr. Mous by telephone that he was suspended and then informed him via text message that he had been dismissed. On that following Wednesday, Mr. Sanderink allegedly scheduled a general meeting at which Mr. Mous' suspension was included as an agenda item. Mr. Mous did not attend that meeting, so Mr. Sanderink decided to suspend Mr. Mous with immediate effect. He further endorsed that he is not a stooge of Mr. Sanderink and that he was even opposed to Sanderink's return and that he also warned Sanderink about the departure of employees and customers if he did return. Subsequently, Mr. Mous indicated that he did not want to return to gain power, but only to restore Centric. He therefore requested that the Enterprise Chamber: (i) reverse his suspension, (ii) appoint an executive director and (iii) appoint a fellow non-executive director. If no provisions were made, Mr. Mous saw no future at Centric.
Mr. Sanderink's ex, Ms. Van Egten
It was noteworthy that it was stated quite openly, by both Mr. Mous and later by Mr. Sanderink, that the attachment that had been placed in respect of Ms. Van Egten (Mr. Sanderink's ex-girlfriend) was intended to bring her to the mediation table and thus not for the purpose of recourse. The District Court of Almelo ruled on this issue on May 2, 2022 and ruled that there was an abuse of rights. By openly stating that the attachment was only intended to start a mediation process, this ruling seems more than justified, as was also noted by the chairman of the Enterprise Chamber.
Centric
Centric itself was not represented in these proceedings because Mr. Sanderink allegedly prohibited Centric's attorney from speaking on Centric's behalf in these proceedings.
Mr. Sanderink
Mr. Sanderink's attorney, Mr. P.B.A. Acda, began his argument with a reference to the 1926 poem "The Gardener and Death. He was reminded of this because there would be a vicious circle. He continued his story with an attack on the prosecution that the petition would be based solely on media coverage. There would be media hype surrounding Mr. Sanderink and his current girlfriend Ms. Van Rijbroek. Mr. Sanderink would not have asked for or participated in this media coverage. Rather, Mr. Sanderink stayed away from the media because it would be in the best interest of the company. Whether Mr. Sanderink is a director of Centric or not would make no difference, according to the lawyer, because the negative media attention continues. As for the public interest that the prosecution must demonstrate in order to file a petition, the lawyer indicated that this was not present. Mr. Acda concluded his plea by stating that the Enterprise Chamber can send a strong signal precisely by rejecting the provisions. Precisely because of the strong signal that a rejection sends out, peace would return to Centric, Mr. Acda said.
Mr. Sanderink himself was also given the opportunity to speak during the oral proceedings. He said he initially stepped down as director on January 4, 2021 to create calm at Centric. The management would have made a mess of things. He would have warned them. There would be no one within the company, other than himself, who could get Centric back on its feet and therefore he had no choice but to return as a non-executive director himself.
The prosecution's response
The Prosecution has defended itself against Mr. Acda's contentions by indicating that it did not base its petition solely on media reporting. Based on a combination of the case law on the disputes between Mr. Sanderink and Ms. Van Egten, the media coverage and the Parliamentary questions, the Public Prosecution launched a preliminary investigation in order to objectify and put into perspective the noises. Based on the findings of this preliminary investigation and Mr. Sanderink's continuation as a non-executive director, despite the Public Prosecutor's warning that an inquiry procedure will follow, the Public Prosecutor's Office felt compelled to initiate this procedure.
The ruling
The Enterprise Chamber then withdrew for about an hour and then immediately issued oral rulings. The Enterprise Chamber was of the opinion that there is a public interest. This is partly due to the many employees working at Centric and that Centric has many government agencies as customers, such as DNB and municipalities.
In the Enterprise Chamber's preliminary opinion, in order to be able to take immediate measures there must be well-founded reasons to doubt the correct policy and course of affairs and there must be weighty reasons justifying immediate measures. In the Enterprise Chamber's opinion, these reasons were met. The Enterprise Chamber cited the following reasons:
- The series of disputes with Ms. Van Egten, with a lot of negative publicity, damaging Centric;
- In addition, the seizure by Centric raises questions, as it seems that this was done only to prevent Ms. Van Egten from recovering the penalties from Mr. Sanderink. Centric's management cooperated in this, or at least did not offer sufficient resistance;
- RSM reportedly indicated that it only wants to pick up the audit work if Sanderink is distanced from Centric;
- The fact that Centric's attorney was prohibited from standing in these proceedings;;
- Furthermore, the board cannot operate sufficiently independently if Mr. Sanderink is also a director. He cannot separate his private interests from those of Centric. The Enterprise Chamber expresses doubts about Mr. Sanderink's ability to lead Centric;
- Another factor is that ASML and DNB will not renew the contract with Centric. There is great unrest at Centric, causing staff to walk away, incurring costs.
All this led to the preliminary opinion that well-founded reasons exist for doubting the correct policy and course of action and weighty reasons exist that warrant injunctive relief.
The Enterprise Chamber hereby made the following immediate provisions: (i) Mr. Sanderink will be suspended as non-executive director, (ii) a person to be designated will be appointed as executive director with independent power of representation, (iii) a person to be designated will be appointed as non-executive director, being the chairman of the board with a casting vote, (iv) all shares but one will be transferred by title of management to a manager to be designated. The costs for this will be borne by Centric, (v) the suspension of Mr. Mouse will be reversed which means that he is immediately a non-executive director of Centric. The remainder, or whether or not to assign an investigation, will be dealt with at a date to be determined. To be continued...
