The Bill & Melinda Gates Foundation Trust and Cascade Investment, investors in Swiss specialty chemical company SIKA, have appealed to the Swiss Federal Administrative Court after they found the decision of The Swiss Financial Markets Authority (FINMA) concerning SIKA unfavorable. SIKA, its current management and some investors are attempting to stave off a bid by French conglomerate Saint-Gobain to gain a controlling interest in SIKA by acquiring Schenker-Winkler Holding (SWH).
SWH, which is owned by the Burkard family, controls 16.1 percent of SIKA’s capital with 52.4 percent in voting rights. The wording of the opt-out cause means Saint-Gobain does not have to reimburse or buy the remaining shares to gain a controlling voting interest in SIKA.
The latest appeal by the two SIKA investors comes after FINMA did not overturn a decision by the Swiss Takeover Board to uphold SIKA’s opt-out clause. The opt-out clause would allow Saint-Gobain to gain the majority of voting rights in the Swiss company without tendering an offer for all shares by purchasing SWH.
Saint-Gobain says its commitment to acquire SIKA “irrevocable,” according to a company statement.
“Saint-Gobain welcomes the decision of FINMA which, following other positive decisions, confirms SIKA’s articles of association and does not express any reservations as regards to the application of the opt-out clause in the case of Saint-Gobain,” according to the company’s statement. “This opt-out clause exempts Saint-Gobain from launching a compulsory offer due to the acquisition of SWH.”
In another move, the Burkard family asked the Swiss Cantonal Court of Zug to basically throw out the votes that occurred at SIKA’s annual general meeting. After a reduction in the Burkard family’s voting power at the meeting, the family did not have enough votes to install new board members who could have been in favor of the takeover deal, according to a report.
“If successful, the legal complaint would overturn the election of several SIKA board members and possibly nullify all legally binding decisions taken by the board since the AGM,” according to the report.
Additional lawsuits have been filed against three SIKA board members in the courts where they live.
The Burkard family alleges Monika Ribar, Christoph Tobler and Ulrich Suter “spent a disproportionate amount of money to fight” the sale, according to another report.
Saint-Gobain and SWH have until June 30, 2016 to close the deal. At that time, Saint-Gobain has the option to again extend the agreement, according to a statement by the company.