Dynamics Group AG (CH)
With his threat of resignation, Meyer Burger’s CEO violates the duties of care and loyalty
EQS Group-News: Dynamics Group AG
/ Key word(s): Miscellaneous
Press Release Balzers, October 28, 2019
Answers Prof. Kunz: In the specific case, the CEO should not have made a public “threat of resignation” because such a threat was or is contrary to the interests of the company and constitutes a violation of the duties of care and loyalty under labor law. Hans Brändle has only, but at least, the right to terminate his employment contract ordinarily, but not without notice.
Answers Prof. Kunz: The BoD is “superior” to the CEO, i.e. for reasons of corporate governance there must be no dependence on the CEO; in this specific case the BoD should have intervened against the public “threat of resignation”, which should not be used as an argument against the election of M. Kerekes. The “reservations” against his candidacy appear to be pretexts without any legal basis.
Answers Prof. Kunz: There are no apparent conflicts of interest between Meyer Burger and Sentis (for example, are there no competitive relationships); there may be different views between Sentis and Meyer Burger but these would not constitute conflicts of interest in the legal sense. And there is agreement on corporate strategy anyway. However, even in the case of conflicts of interest, Sentis would not have to comply with duties of care and fiduciary duties.
Answers Prof. Kunz: In the case of Marc Kerekes, there would be no conflict of interest in the event of a Board election, neither in his position as (small) shareholder of Meyer Burger nor in the function as delegated Board member for Sentis – and thus as dependent Board member – of Meyer Burger. Even a conflict of interest would not rule out eligibility for election but would merely suggest measures for the activities of the Board of Directors (e.g. no participation in decision-making in case of a conflict). According to the legal opinion of Prof. Peter V. Kunz, the arguments put forward by Meyer Burger against the election of Mark Kerekes as shareholder representative are without substance. From a legal point of view, there is nothing against the candidate of the shareholder group around Sentis.
Additional features: Document: http://n.eqs.com/c/fncls.ssp?u=GEUUDPAHTM Document title: Sentes_MM_Kunz_28.10.2019
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