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Registered shares, transferability and right to "review" – the multiplication table for the Sika case

The dispute about the Swiss manufacturer of construction chemicals Sika is over. What was the conflict between the founding Burkard family and the Sika board in general?

Stefan Häberli

Why broke the dispute?

In December 2014, the five heirs Sika President Romuald Burkard, a long-term Sika president, decided to sell their shares in CHF 2.75 billion to the French industrial group Saint-Gobain. Although the Burkard family had a 1

6% equity stake in Sika through its Schenker Winkler Holding (SWH), French would have created a controlling majority of 52% in the company. Six of the nine Sika boards, management and the majority of other shareholders were looking forward to the sale to Saint-Gobain.

Why did Burkard's 16% capital hold a ruling majority?

This was possible because Burkard's registered shares have six times higher voting value per Swiss franc than the other shareholders' "normal" shareholders. Unlike shareholders who can in principle be traded anonymously, the changes in the registered shareholders' shares must be registered in the share register. As a result, the company is always aware of who holds what capital shares. In addition, if the registered shares – like Burkards – are reduced, the Board may receive a statement on the sale of shares. Because both restrictions reduce sales and thus market value of the shares, the holders of registered shares are sometimes compensated by a "vote bonus".

How could the Sika board block the purchase?

Sika Board invoked a Vinkulierungs rule in the Sika statutes, which gives him the power to cover voting rights at the general meeting by 5% for registered shares in the share book. Burkard could not, therefore, use his majority election to elect new members of the board who had supported sales to Saint-Gobain. Sales were blocked. The dispute became a legal case when Burkards brought an action against the limitation of voting rights.

What was convicted in court?

It was about whether the voting restriction activated by the Sika Board at all was legal. The basic family denied this. They took the position that the ownership of Sika by handbyte was not changed at all, as Saint-Gobain would take over only the holding SWH – thereby not directly buying Sika-registered shares. This indirect "game over the gang" removed the legal basis for the restriction of voting rights.

The Board opposed the application of the regime even if the sale was conducted indirectly through a holding company. SWH had to "look through" because the transaction resulted in a bypass operation. Autumn 2016 approved the Zug Cantonal Court Sika Board. The Burkard family appealed against this verdict in the Zug High Court. The judgment in the second instance is expected in the next few days. Following the agreement between the parties to the dispute this will be of interest in advance for public lawyers.

Why did the dispute so high waves?

The case would actually have had many ingredients to make him a medial Ladenhüter: Details and a business that makes business successful, but rather exudes high charm.

The fact that the Sika dispute in the media still got a lot of space was, on the one hand, the actors: Here are the "evil" Burkard siblings, claiming inherit the legacy of the fathers by selling their Sika share in a foreign company; there the "good" Sika Board, who wants to preserve the company's independence and independence.

However, reality was more complicated: the Sika dispute recalled, in particular, that ownership of a company is particularly questioned when stakeholders agree with the owner's decision. The truism that the property also implies the responsibility sounds reasonable but does not help: A party to the dispute in any event assumes that they act responsibly. The discussion about the Sika case shows that the conflict between owners and other interest groups occupies the public.

  Ur Burkard represented the Burkard family on the Sika Board (Picture: Alexandra Wey / Keystone).

From Burkard, Founding Family Burkard represented on the board Sika (Picture: Alexandra Wey / Keystone).

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