Prosecutor's Office
During the two oral proceedings, the Public Prosecutor's Office (OM) asked the OR to investigate Centric's policy and affairs. It also requested one additional immediate injunction, namely: transfer of all shares to the administrator. On Nov. 3, 2022, the OK ruled that all but one share would be transferred by title of management to an administrator to be designated by the OK. The OM requested that the latter share also be transferred to the administrator already appointed, Mr. Evers. Furthermore, the OM requested that the other provisions (all made) be maintained for the duration of the proceedings.
The Public Prosecutor's Office based its request, in terms of ordering an investigation, on the fact that considerable unrest and uncertainty had arisen among Centric customers and employees due to Mr. Sanderink's actions. As a result of this unrest, customers wanted to terminate their contracts with Centric or no longer wanted to renew current contracts and employees resigned. The newly appointed executive director, Mr. Wakkie, and the non-executive director, Mr. Meijers, had to convince customers that Mr. Sanderink's involvement with Centric had definitively ended. Only then would the customers in question want to continue with Centric, the prosecution said.
Regarding the request for additional immediate relief, the prosecution argued that Mr. Sanderink's retention of the last share would result in an obstruction of decision-making at the general meeting of shareholders.
Centric
Whereas Centric was not represented in these proceedings on November 3, 2022, this time it was, namely by Mr. Wakkie and Mr. Meijers. Counsel for the OK officers took the floor on behalf of Centric. According to the OK officials, lasting recovery would only be possible if Mr. Sanderink remains permanently detached from Centric. This would require the provisions made to become final. However, this can only be done after an investigation has been ordered, the investigator has issued a report, this has been filed at the registry and a petition has been submitted to the OK for a second time in order to establish whether or not there is mismanagement. Only in the "second phase" can the OR make final provisions (Art. 2:355(1) and 2:356 BW).
The OR officials believe an investigation is necessary and that disclosure will help restore healthy relations. This is essential, according to counsel for the OR officials. Moreover, an investigation can provide this candor.
OR officials tried to contact Mr. Sanderink on several occasions, but without success. It was important for Centric to hold a general meeting at which it could vote and decide on: (i) the appointment of a new auditor and (ii) the appointment of an additional non-executive director. In addition, Mr. Sanderink still holds Centric's shareholder register.
Because it is not possible to get in touch with Mr. Sanderink, decision-making is delayed, according to OK officials Mr. Wakkie and Mr. Evers. The reason for this is that decision-making outside a physical general meeting can only take place if all shareholders have given their consent (Section 2:238(1) of the Dutch Civil Code). Since Mr. Sanderink did not give his consent, a physical general meeting must be held. The law prescribes in Article 2:225 BW that the convocation for the general meeting must take place no later than on the eighth day before that of the meeting. The OR officers first tried to obtain permission to pass resolutions outside the meeting, when no response was forthcoming they issued a formal notice. Having to first wait for Mr. Sanderink's response and then meet the legal deadline delayed decision-making. The decisions to appoint a new auditor and a non-executive director were still taken, as the administrator holds the majority of shares. Since there is no contact to be made with Mr. Sanderink and therefore decision-making is delayed, the OK officials say the last share should also be transferred to the administrator.
The works council
The Works Council (OR) indicated that it is positive about the immediate provisions as made to date. It wishes to maintain calm and supports the requests as made. The chairman of the OR further indicated that the OR has received reports of employees who initially wanted to leave but are now staying.
Mr. Sanderink
Mr. Sanderink explained that he has led Centric for 20 years. According to him, this has always been stable and good. He said, "I built my company with hard work. I have no interest in harming my company. Yet my company has been taken away from me. To be dismissed in this way by the OM at the age of 74, I am very troubled by that. I am emotional because the course of events has affected me deeply."
The OR chairman asked Mr. Sanderink if it was true that there had been no contact with the OR officials. He indicated that there had indeed been no contact because he was anxious for calm.
Transfer last share to manager
According to one of the OR's counsel, it is not common practice to transfer the last share to a manager as well. The moment the normal orderly conduct of the general meeting is disrupted, the last share can be transferred, the counsel said.
The OK administrator gave a number of reasons why the last share should also be transferred, namely: (i) the image to the outside world; it is important that Mr. Sanderink's distance from Centric is known to the outside world (ii) workability; if no contact can be made with Mr. Sanderink, decision-making outside the meeting is not possible and decision-making is delayed and (iii) that it is important that during the general meeting it is about Centric and not about Mr. Sanderink.
The OM added that the public interest stands in the way of leaving the last share with Sanderink. It is very important to restore healthy relations and this cannot be done if Mr. Sanderink is still involved with Centric, the prosecution said.
The verdict?
Whether an investigation will be ordered and the last share transferred is still unclear. The OK will rule on this as soon as possible. To be continued...
