The Enterprise Chamber rendered its decision on 13 May 2009 in the corporate inquiry proceedings brought by shareholders Hermes and Fursa against ASM International N.V. (ASMI). Last year, Hermes and Fursa also filed an application with the Enterprise Chamber for immediate measures to be taken and an inquiry held. In those proceedings the Enterprise Chamber ordered the parties to hold discussions and attempt to reach a settlement, but the parties have so far failed to reach agreement.
The following emerged from the Enterprise Chamber’s recent decision:
- It did not impose measures concerning the appointment of a supervisory director who would have the right, to the exclusion of the other supervisory directors, to take decisions on the appointment and dismissal of managing or supervisory directors;
- It prohibited Stichting Continuiteit (which has held ‘anti-takeover’ preference shares in ASMI since May 2008) at the general meeting of 14 May 2009 from taking part in any decision-making with respect to a new option to be granted to Stichting Continuiteit on protective preference shares;
- The Enterprise Chamber did not consider whether the (previous) option on preference shares was validly obtained by Stichting Continuiteit;
- In assessing an anti-takeover measure such as the current one, the basic principle should be that it is generally not acceptable to keep an anti-takeover measure in place for an unlimited period. The criterion to be applied is whether, in the given circumstances and reasonably weighing up the interests involved, the measure is an adequate and proportional response to the threat of an unwanted take-over of control;
- despite the fact that the protective measure has already been in place for quite some time (almost twelve months), this period has only partly been used to conduct the debate which Stichting Continuiteit deemed necessary.
The Enterprise Chamber therefore concluded that the parties should continue their debate for a further short period and have one final chance to reach a settlement.
The Chamber will deal with the application again before 3 July 2009.
