Uitspraak
judgment
AMSTERDAM DISTRICT COURT
Netherlands Commercial Court
NCC District Court - Court in Summary Proceedings
Case reference number: C/13/735883
Judgment
14 July 2023
In the matter of:
1. the limited partnership (
commanditaire vennootschap)
commanditaire vennootschap)
organised and existing under the laws of the Netherlands,
ELEMENTAIRE DEELTJES C.V.,
having its business office in Amsterdam, the Netherlands,
and
2. the private company with limited liability,
BUNQ HOLDING B.V.having its registered seat and its business office in Amsterdam, the Netherlands,
claimants,
lawyers: R.W.Th. [name 5] and M.J. Clement,
versus
the company incorporated under Irish law,
CAPITALFLOW HOLDINGS DAC,
having its registered office in Dublin, Ireland,
defendant,
lawyers: F.G.K. Overkleeft and A. Werts.
The parties are referred to below as "ED", "BH" and "CFH" respectively.
1.Procedural history
1.1.
All submissions were made in eNCC under the NCC Rules.
1.2.
ED and BH submitted a writ of summons on 3 July 2023. The exhibits referred to in the writ of summons were submitted separately on 10 July 2023. On 11 July 2023, ED and BH filed a notarial record of a sworn statement.
1.3.
On 11 July 2023, CFH filed its statement of defence. The exhibits were submitted separately on the same date. ED and BH submitted additional exhibits on 12 July 2023.
1.4.
The hearing was held on 13 July 2023. The lawyers presented their cases and submitted their speaking notes (subsequently uploaded in eNCC). CFH uploaded the court reporter’s transcript in eNCC. The court reporter (Opus 2) was instructed by the parties and attended the hearing by videoconference. She is a certified court reporter in England and Wales (as discussed with her at the hearing). The Court therefore accepts her transcription as an official and non-partisan document, subject to comments by the lawyers. Given time constraints, and as discussed at the hearing, any comments the lawyers may submit on the transcript after the judgment will obviously not arrive in time to be considered by the Court in this judgment.
1.5.
At the hearing, the date for judgment was set for today.
2.The facts
2.1.
bunq B.V. (“bunq” or the “Company”) has been a fully-fledged bank since 2014. bunq was set up by [name 1] (“ [name 1] ”), a Dutch resident, who indirectly holds shares in bunq through BH, which is wholly owned by ED, a limited partnership of Stichting Artemisia as the managing partner and [name 1] as the limited partner.
2.2.
Pollen Street Capital Ltd. (“PSC”) is a London-based full-scope alternative fund manager. PSC’s investment profile has a special focus on businesses in the financial sector.
2.3.
CFH was originally incorporated in 2015 as the top holding company for a group of companies that jointly comprised the ‘Capitalflow’ business (“Capitalflow”). Capitalflow was established in Ireland in 2015 as a business in the field of asset-based lending. In May 2016, Capitalflow was acquired by two parallel equity fund verhicles, PSC III, LP and PSC Investments LP (the “PSC III Funds”), which are managed by PSC.
2.4.
On 1 June 2021, bunq agreed to acquire Capitalflow. As part of this transaction, funds managed by PSC through CFH invested an amount of € 168 million in bunq in a ‘Series A’ round at a valuation of € 1.65 billion. Bunq applied € 141 million of the proceeds to acquire Capitalflow from CFH and CFH also received shares in the capital of bunq representing 9.93% of the issued outstanding shares. ED also invested in this funding round.
2.5.
In connection with CFH's equity capital investment in bunq, bunq, BH, CFH and others entered into an Investment and Shareholders Agreement (“ISA”) on 1 June 2021. Furthermore, ED, CFH and others entered into a Proceeds Agreement (“PA”) on
26 November 2021, which was the date of the closing of the Capitalflow transaction. In the PA various arrangements are laid down with respect to the use and distribution of proceeds.
These arrangements boil down to a ‘participating deemed liquidation preference’. This contractual mechanism will be referred to as the ‘Preference Arrangement’ (or ‘pref’), which serves as an instrument for both downside risk protection and increased upside exposure. The Preference Arrangement guarantees that CFH can at least achieve a return against a multiple of the value of its historical investments in Capitalflow and the value of its investment in bunq, provided that a ‘Total Proceeds Hurdle’ is met. CFH’s entitlement under the Preference Agreement amounts to € 143.5 million.
2.6.
In the summer of 2022 it became clear that bunq would require additional tier-1 capital to be able to fund its preferred marketing driven growth plan. CFH was not willing to inject further capital into bunq at that time, but CFH was willing to support a capital contribution by ED. The terms were laid down in a letter agreement titled ‘Capital commitment bunq’ dated 27 June 2022 (the “June 2022 Capital Commitment Letter”). In this letter ED agreed to guarantee an amount of € 8.9 million and in return this € 8.9 million was added to the Preference Arrangement under the PA against a 1.5x multiple.
2.7.
At that time, ED, CFH and bunq were aware that further capital would be needed in 2022 and 2023 to execute bunq's strategy. It was agreed that a total amount of € 58.8 million in new tier-1 capital was needed, which resulted in another letter agreement dated 5 September 2022 (the “September 2022 Capital Commitment Letter”). ED contributed € 46.5 million and [name 2] (“ [name 2] ”), the CIO of bunq, contributed € 12.0 million. The contributions of ED and [name 2] were added to the Preference Arrangement under the PA against a 1.5x multiple.
2.8.
On 2 December 2022, bunq launched a new savings product. In the course of the first quarter of 2023, due to the increased volume of deposits as the result of the success of its new savings product, it became clear that bunq needed new tier-1 capital very soon. Under the EU Capital Requirements Regulation, bunq has to maintain a ‘leverage ratio’ above certain levels as determined by the Dutch Central Bank (De Nederlandsche Bank (“DNB”)).
2.9.
The parties have discussed the subject of putting additional capital into bunq extensively. ED was (and is) prepared to invest a further € 40 million in bunq in exchange for shares, but wanted its new capital commitment to be on better terms than the terms of the previous Capital Commitment Letters. This led to a flurry of proposals back and forth between ED and CFH, with support of [name 3] (“ [name 3] ”), a member of bunq's Management Board, which lasted from March 2023 well into June 2023.
2.10.
On 18 June 2023, [name 4] (“ [name 4] ”), a PSC partner, who is also a member of the Supervisory Board of bunq, sent an e-mail to [name 5] (“ [name 5] ”), ED and BH's lawyer, with the heading ‘bunq agreement’. [name 4] also sent a copy of the e-mail to:
- [name 1]
- [name 1]
- [name 6] (“ [name 6] ”), CEO of PSC and Chair of the Investment Committee
- [name 7] , investment director of PSC
- [name 8] , the President of the Supervisory Board of bunq
- [name 9] , CFH’s lawyer
- [name 10] , a lawyer at Mr. Overkleeft’s firm NautaDutilh.
In the 18 June 2023 e-mail, [name 4] wrote:
… I believe we have now reached agreement with help from [name 3] …outlined below.
I can hop on a call tmrw morning between 7-11 CET to discuss. Or any time this afternoon.
• ED to invest $40m in existing pref @1.5x and latest share price issue
• ED can invest up to another $20m on the same basis
• ED can pay back the pref in accordance with this schedule
○ Before 31 Dec 2023 - € 30m
○ Before 31 Dec 2024 - € 30m
○ Before 31 Dec 2025 - € 40m
○ Before 31 Dec 2026 - € 43.5m
• Any amount not repaid in line with the minimums (above) after 30 June 2025 will attract an accrual
of EURIBOR +9%
• Any amount not paid in line with the above schedule will attract a yield of EURIBOR+10%
• As an alternative [name 1] has the ability to tell us he will stop the buy-back at which point any amount of pref unpaid will remain in the current pref structure and the option to buy our equity for zero will effectively cease
• Any amount not paid at the point of a change of control will get the benefit of the existing pref and equity
• For each € of Pref that is repaid, a prorate share of the Capitalflow Holdings equity can be purchased for €1.00
• Alantra to be appointed by bunq to explore the sale of Capitalflow…either as an entire business or just the operating company. PSC and Capitalflow to co-operate/help
• Loss guarantee to be released - $1m to remain
[name 3] , thanks for your help. Shout if I have missed anything.
2.11.
On the same day, [name 3] replied with some further details. Subsequently, [name 4] replied “Fine Thanks”.
2.12.
On 20 June 2023, a first draft 2023 ED-bunq Commitment Letter was produced by [name 5] . According to the accompanying cover e-mail of [name 5] to [name 4] , the draft had been reviewed by [name 1] and [name 3] and remained subject to any further comments they might have. Furthermore, [name 4] was asked to provide his comments.
2.13.
On 22 June 2023, CFH’s lawyers sent over a mark-up of the 20 June draft to [name 5] . CFH
inter aliaadded a termination arrangement with regard to the call options (if not exercised by their respective target exercise dates). CFH also added that any payments made prior to the target exercise dates would not lead to a transfer of a commensurate number of shares when payments are made, but only later as at the relevant target exercise date. Furthermore, an increase of the Total Proceeds Hurdle and the CFH portion with call option interest was added, as well as an amendment of the ISA to the effect that CFH would keep its right to nominate a member of the Supervisory Board for as long as they hold any shares. Additionally, CFH wanted to include an ‘anti-embarrassment’ penalty to the effect that if BH sells shares in bunq after it acquired call opton shares from CFH, ED/BH must pay the relevant Proceeds as defined in the PA. CFH also suggested the inclusion of a requirement to be able to moderate the growth of the deposit book of bunq.
inter aliaadded a termination arrangement with regard to the call options (if not exercised by their respective target exercise dates). CFH also added that any payments made prior to the target exercise dates would not lead to a transfer of a commensurate number of shares when payments are made, but only later as at the relevant target exercise date. Furthermore, an increase of the Total Proceeds Hurdle and the CFH portion with call option interest was added, as well as an amendment of the ISA to the effect that CFH would keep its right to nominate a member of the Supervisory Board for as long as they hold any shares. Additionally, CFH wanted to include an ‘anti-embarrassment’ penalty to the effect that if BH sells shares in bunq after it acquired call opton shares from CFH, ED/BH must pay the relevant Proceeds as defined in the PA. CFH also suggested the inclusion of a requirement to be able to moderate the growth of the deposit book of bunq.
2.14.
On 23 June 2023, [name 5] replied on behalf of ED and BH that the mark-up did not reflect the deal as summarised in the 18 June e-mail. [name 5] also wrote that his clients believe that the 20 June draft correctly reflects the deal [name 4] and [name 3] agreed on.
2.15.
On 26 June 2023, [name 6] sent an e-mail to,
inter alia,[name 5] , [name 4] , [name 1] , [name 3] and [name 8] . In this e-mail, [name 6] disputed the notion that the
inter alia,[name 5] , [name 4] , [name 1] , [name 3] and [name 8] . In this e-mail, [name 6] disputed the notion that the
e-mails that were exchanged between [name 4] and [name 3] on 18 June 2023 constituted a definite agreement between the parties. In the e-mail, [name 6] described in six bullet points (without being exhaustive) the following outstanding issues:
• The 20 June draft letter effectively provides for a perpetual call option taking out PSC and CFH at nominal value. This is not reflected in the emails exchanged between [name 4] and [name 3] nor was also not discussed between them in this way. (…)
• The 20 June draft letter did not include any limitation that would prevent ED from attracting external financing to utilize its (perpetual) call option for nominal value, only to thereafter unduly squeeze-out ED from value by raising or selling shares at an incremental valuation. (…)
• The 20 June draft letter provides that ED can effectively sidestep the obligations to pay any interest on late payments by simply waiving its rights under the Call Option, in which case accrued interest would fall away. (…)
• (…) The 20 June draft letter does not provide for meaningful commitments on the part of bunq or ED to apply proceeds to accelerating payments to PSC/CFH (…)
• The 20 June draft letter does not contain any commitment on the part of bunq and ED to develop an alternative strategy as a fall back for more moderate growth (…)
• The 20 June draft letter did not provide for a termination of the call options in case CFH sells the shares to a third party. (…).
3.The claim
3.1.
In sum, ED and BH’s claims ask the Court by judgment where appropriate enforceable notwithstanding appeal:
Main claim
(A) to order CFH to sign the 2023 ED-bunq Capital Commitment Letter without any delay, but in any case within 2 days from the judgment in these summary proceedings, with a penalty
(B) to order CFH to perform, upon signing the 2023 ED-bunq Capital Commitment Letter, the agreements made in that letter, without any delay, with a penalty
First alternative claim
(C) to order CFH to perform the 18 June deal, as set out in an e-mail chain of 18 June 2023 quoted in the writ of summons, by
inter aliaallowing ED to invest (through BH) € 40 million in bunq through a share issue and provide the required cooperation and/or any required consent to such investment on the terms and conditions as set out in the 18 June deal, with a penalty
inter aliaallowing ED to invest (through BH) € 40 million in bunq through a share issue and provide the required cooperation and/or any required consent to such investment on the terms and conditions as set out in the 18 June deal, with a penalty
Second alternative claim
(D) to order CFH to continue in good faith the negotiations with ED and bunq along the lines of the 18 June deal and the 2023 ED-bunq Commitment Letter until CFH, ED, BH and bunq have reached full agreement on the implementation of the 18 June deal
As to all claims
(E) to order CFH to pay the costs of these proceedings plus interest and post-judgment costs.
3.2.
In sum, CFH vigorously opposes the claim and asks that ED and BH be ordered to pay CFH the costs of these proceedings plus interest.
4.Discussion
4.1.
In its discussion, the Court deals with several preliminary issues first.
Jurisdiction, NCC authority and other preliminary matters
4.2.
In clause 30 of the ISA and clause 4.2 of the PA, the parties agreed that any dispute arising out of or in connection with the agreements, whether contractual or non-contractual, will be submitted to the jurisdiction of the competent court in Amsterdam. This means that the Amsterdam District Court has jurisdiction under Article 25(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
4.3.
The parties also agreed to litigation in English before the Netherlands Commercial Court, including an application for provisional and protective matters. All other requirements for the NCC Court in Summary Proceedings, being a chamber of the Amsterdam District Court, to have authority to deal with this case, as referred to the Dutch Code of Civil Procedure (DCCP) and in Articles 1.3.1 and 1.3.2 of the NCC Rules of Procedure (NCCR), are met.
4.4.
As always, in summary proceedings involving a company established outside of the jurisdiction, several other preliminary matters must be addressed at the outset: the legal standard in summary proceedings, applicable law, sufficient interest for relief in summary proceedings, and whether it is appropriate to deal with the matter in summary proceedings.
4.5.
A few brief remarks are sufficient to deal with these matters here:
-
The legal standard is well established and was outlined by the Court in its 29 April 2020 judgment at 3.4 (ECLI:NL:RBAMS:2020:2406). The Court applies this standard below.
The legal standard is well established and was outlined by the Court in its 29 April 2020 judgment at 3.4 (ECLI:NL:RBAMS:2020:2406). The Court applies this standard below.
-
There is no dispute in this matter that Dutch law applies.
There is no dispute in this matter that Dutch law applies.
-
The Court is persuaded that ED/BH has the required interest for relief in summary proceedings. That is because the company, at least with some degree of urgency, may require additional funding to carry on doing business in the way the company (backed by ED/BH) believes is right, and the parties’ dispute is about the terms under which that funding could be provided.
The Court is persuaded that ED/BH has the required interest for relief in summary proceedings. That is because the company, at least with some degree of urgency, may require additional funding to carry on doing business in the way the company (backed by ED/BH) believes is right, and the parties’ dispute is about the terms under which that funding could be provided.
-
The fundamental issues and the main material facts are clear (the parties mainly rely on their emails, and no fact-finding is required to determine the substance of the emails). Accordingly, there is no reason to deny the claims as a preliminary matter.
The fundamental issues and the main material facts are clear (the parties mainly rely on their emails, and no fact-finding is required to determine the substance of the emails). Accordingly, there is no reason to deny the claims as a preliminary matter.
4.6.
The Court will deal with the main claim and the first alternative claim together, since the issues are the same.
4.7.
It may be helpful to recite the basic problem causing these proceedings here. It is that the Company needs capital to pursue the business strategy preferred by the Company and its majority shareholder, but the minority shareholder has concerns about that strategy, the addition of capital in that context, potential dilution and other issues, while the Company’s valuation has declined significantly so that all of the shareholders are reluctant to apply the mechanism of the Company asking for capital as agreed in the fundamental documentation that was signed when the minority shareholder bought its stake. This combination of circumstances makes some type of shareholder deal necessary for the business to receive additional capital.
4.8.
The conclusion of the Court’s analysis, very briefly stated, is that the main claim and the first alternative claim in this matter must be denied for two reasons, each of which is sufficient in itself to deny these claims:
- first, there is not enough material in the record to show, at this early stage, that ED/BH was induced reasonably and in good faith to believe that [name 4] had been granted authority to do the deal
- second, at this early stage, several brief staccato bullets in a Sunday afternoon email are not the way a reasonable person in the same circumstances as the parties would understand business to be transacted on the subject matter of this dispute. [1]
These conclusions are supported by the following analysis.
The first ground for the decision: No authority, real or apparent, to do the deal
4.9.
The first part of the analysis is about representation. There are two fairly simple issues:
- Was [name 4] authorised to do the deal?
- If not, was ED/BH induced to believe that there was authority, and are there circumstances that warrant allocating this risk to CFH?
4.10.
On the first issue, the Court is satisfied, at this early stage, that a private equity minority shareholder organisation like CFH has an Investment Committee and that the Investment Committee, not individual partners, is responsible for making major decisions, such as the potential disposition of significant assets. The Court accepts CFH’s positions on this point because they are consistent with market practice, and because there is no sufficient information in the record to dispute their accuracy here. For purposes of these proceedings, this means [name 4] was, in fact, not authorised to do the deal. It is likely that CFH will prevail on this issue in litigation on the merits.
4.11.
That, however, is not the end of the analysis. There is the second part.
4.12.
The second part focuses on whether, in the PECL [2] terminology (Article 3:201(3)), a person is to be treated as having granted authority to an apparent agent. That is so if, using the PECL terminology, the person’s statements or conduct induce a third party reasonably and in good faith to believe that the apparent agent has been granted authority for the act performed by it. This is a good English-language rendering and expression of Dutch law (set out in Article 3:61(2) Dutch Civil Code and copious case law), although Dutch legal scholars also suggest examining whether there are circumstances that warrant a risk allocation in favour of the third party, as the Court will do below.
4.13.
At this early stage, the Court has little doubt that the answer must be “no” - ED/BH were not induced reasonably and in good faith to believe that [name 4] had been granted authority to do the deal. It is likely that CFH will be successful on this issue in litigation on the merits.
4.14.
Again, the subject matter is important. Individual partners, no doubt, deal with trivial, routine, and ordinary matters every day on behalf of a partnership. And perhaps somewhat more substantial matters too. But here, [name 4] was not ordering lunch for a partnership meeting. The subject matter here is anything but trivial, routine, or ordinary. It concerns issues of the highest order of magnitude: the potential disposition of significant assets worth tens or hundreds of millions of euros. Experienced, reasonable business persons like the parties would understand in the circumstances that the partnership would have to give a green light to do the deal. That would typically require at least a majority vote, if not a qualified majority vote, in the appropriate forum (which in this case CFH says is the Investment Committee), and reasonable business persons such as the parties would understand this process. The record contains no information on such decision-making. That is the decisive thing.
4.15. Another important point is that ED/BH essentially rely only on statements by [name 4] as the basis for their argument about his authority as an apparent agent. There is nothing in the record about statements or conduct by the partnership (Investment Committee). And ED/BH concede they were aware that there was an Investment Committee, even if they argue they did not understand how the Investment Committee operates.
4.15. Another important point is that ED/BH essentially rely only on statements by [name 4] as the basis for their argument about his authority as an apparent agent. There is nothing in the record about statements or conduct by the partnership (Investment Committee). And ED/BH concede they were aware that there was an Investment Committee, even if they argue they did not understand how the Investment Committee operates.
4.16.
In the absence of statements or conduct that at least have some minimum threshold connection to the alleged apparent principal (CFH), there is no solid ground to allocate risk in favour of ED/BH (the third party).
4.17.
The Court notes that ED/BH submitted emails by the Chair of the Investment Committee. But these emails do not say anything specifically about [name 4] ’s authority to do the deal. In fact, the emails underscore the point that intense negotiations were ongoing, with a lot of ideas being exchanged and discussed. The emails also serve to show that the Investment Committee was involved in the background. That in fact provides further support for the above analysis to the effect that Investment Committee approval was required and everyone participating in the negotiations was essentially aware of that fundamental reality. The involvement of the Chair of the Investment Committee in the background, in helping guide the talks from time to time, does not suggest pre-approval by the Investment Committee or a waiver of the ordinary decision-making procedures. That is not how these people do this kind of business, as reasonable people in the parties’ circumstances would understand.
4.18.
In this analysis, the Court has used rules relating to partnerships because it is common ground that [name 4] ’s job title is PSC partner and because CFH has described its decision-making operations in terms that resemble a partnership, such as a partner like [name 4] getting involved to try to find a breakthrough even though the Investment Committee was the responsible decision-making body. The context suggests reasonable business third parties such as ED/BH, who have been doing business with a private equity minority shareholder for some time, would understand the operations in this way (the Court believes they in fact did understand the position this way, as they acknowledge familiarity with the Investment Committee’s existence), even if CFH is not actually organised as a partnership in legal terms. At this early stage, the Court accepts CFH’s description of its business operations and decision-making procedures as credible and sufficiently substantiated in summary proceedings. Nothing in the record is sufficient to dispute these points.
4.19.
The discussion above regarding representation is decisive and compels the Court to deny the main claim and the first alternative claim in these summary proceedings. There is no sufficient likelihood of success on the merits to support these claims.
The second ground for the decision: brief staccato bullets in the Sunday afternoon email
The second ground for the decision: brief staccato bullets in the Sunday afternoon email
4.20.
The second ground for the Court’s decision on the main claim and the first alternative claim is sufficient to support the conclusion independently of the above analysis regarding representation. This second ground is about the 18 June email. Was it a deal that is firm and binding and enforceable? Or was it a staging post or milestone by a negotiating team as the foundation to move to the “lawyer drafting phase”, after which the principals would get involved, review the language in the lawyers’ draft and say “yes” or “no” to the deal?
4.21.
These issues always turn on the specific circumstances of each individual case. Here, the Court is persuaded, at this early stage, that the 18 June email was nothing more than a staging post to move to the lawyer drafting phase. That is what reasonable persons in the same circumstances as the parties would have understood the language in the email to mean. CFH is likely to prevail on this issue in litigation on the merits.
4.22.
Several reasons point in this direction:
1) The subject matter of the dispute is a key factor here. The subject matter is the potential disposition of significant assets. And there are also strategic business aspects about the future of the Company. The subject matter is therefore a powerful indicator that much more detailed language would be required as well as full participation by the principals. Otherwise, it is simply not certain there is a meeting of the minds for a bargain (meaning a meeting of the minds who are the authorised people to do the deal).
2) The language in the email is a second important factor. It is very brief and it is expressed in staccato terms, which are only easy to understand for people who are closely involved in the negotiations and are familiar with the history. It is the language of negotiators who are exploring options and setting out what they think is a way forward for the principals to agree on a deal. [name 4] used the phrase “I believe” we have reached a deal and later the term “fine” to express he supported a clarification. The context suggests “we” meant [name 4] and Mr. [name 3] (his counterpart in the talks). The ED/BH lawyer Mr. [name 5] , after preparing a draft, reserved the right for ED/BH to make further comments. CFH is right to point out that in the lawyer drafting phase, typically issues may arise that need to be fleshed out in clauses in a detailed legal text. It might, in some circumstances, be incumbent on the parties to do that work in the spirit of the staging post, but the work still needs to be done.
3) Another important factor is the people involved in these negotiations. They are people who prepare comprehensive, exhaustive documentation on everything. They use a lot of very specific financial and legal terminology, and they bring a lot of expertise to bear on the precise language they wish to use to express their agreement.
4) There were a lot of emails and talks in the run-up to the 18 June email. This context is enlightening because it shows that the talks were slowly crystallizing into a set of ideas, but the ideas were complex, misunderstandings might easily arise, and work was needed to flesh out the details.
5) ED/BH argued that in the Netherlands business is often done by email (as opposed to lengthy documentation), and this is an acceptable way of making legally enforceable agreements. That of course is true as far as it goes. But it also applies to every jurisdiction in the world. These days everybody does business by email, and in many other ways, every day and all the time. However, in the Netherlands and elsewhere, private equity minority shareholders typically do not dispose of significant assets worth tens or hundreds of millions of euros in this way. Most other people don’t either. Accordingly, the general idea that business is often done by email has little weight in these proceedings.
6) The parties have explained the issues in the negotiations at length, but there is no clear or succinct statement in the record of the value of these issues (in money, control or upside/downside risk). As a result, at this early stage, the Court is not able to analyse whether any outstanding issues may be so insignificant, inconsequential or trivial as to make a party’s conduct abusive. The Court expresses no view on such matters.
7) ED/BH emphasise that a chair of an investment committee typically represents the committee and is authorised to do so. That may be true in some circumstances, the Court acknowledges, but that does not mean PSC’s Chair of the Investment Committee acted in that way in this case. The Chair’s remarks in the record, at this early stage, seem to reflect guidance on issues in the negotiations, as opposed to pre-approval of the outcome or a waiver of decision-making procedures (see paragraph 4.17 above on these points).
8) ED/BH may be right that [name 4] ’s 18 June email has the heading “bunq agreement” whereas some of his previous emails stated they were “without prejudice”. But even so, points 1) to 7) above suggest that the “agreement” referred to the negotiators’ agreement to move forward to the lawyer drafting stage, not to a final, binding, enforceable agreement. The Court acknowledges some doubt on this point, but on balance the likelihood of success on the merits still favours CFH.
4.23.
For all of these reasons, the Court is convinced that the 18 June email was not a final, binding, enforceable agreement. There is no sufficient likelihood of success on the merits to support these claims. That means the Court has no choice but to deny the main claim and first alternative claim in these summary proceedings. Accordingly, there is no need for further discussion of CFH’s position that the negotiations by implication were “subject to contract” or “without prejudice”.
As to the second alternative claim (negotiations)
4.24.
The Court notes that ED/BH have asked for alternative relief in an order to continue negotiating. At this stage, the Court believes there is no solid ground to issue such an order. To start with, it seems obvious the parties will continue negotiating in one way or another, since they are both connected to the Company and a solution needs to be found. That was common ground at the hearing. Another point is that the ball seems to be in ED/BH’s court. CFH provided a mark-up with its point of view, and that was the end of the talks prior to the summary proceedings. It is up to ED/BH to take the next step. It seems clear CFH wants a deal and is prepared to continue talking along lines that the Court – without of course expressing a view on what future ideas or solutions might or might not be appropriate in negotiations, and based solely on the information available at this time in these proceedings – cannot say are abusive or in bad faith or manifestly outside the spirit of previous talks, including the 18 June email. The Court uses terms like “appear” and “seem” to express caution; it is sufficient here to decide that no intervention by the Court is needed at this time, again without of course expressing any views on the merits of positions in the talks.
4.25.
In this context, the Court is aware of the six bullets in the Chair of the Investment Committee’s email explaining points of disagreement following the 18 June email (paragraph 2.15 above). ED/BH believe these bullets represent an effort to back away from the 18 June email and violate its language and its spirit. But at this stage, with the information available in the record, the Court cannot agree. The six bullets seem to represent a good faith effort to nail down specific points in the 18 June email or to add points that the minority shareholder in good faith may believe are important to provide assurance that the spirit of the deal will be implemented in a way that is consistent with its basic interests and is fundamentally fair. In other words, the six bullets do not appear to be an effort to subvert or fundamentally alter the spirit of the 18 June email. This confirms that there does not appear to be anything abusive or in bad faith or manifestly outside the spirit of previous talks, and no intervention by the Court is needed at this time. Of course, this does not say anything about whether the six bullets actually have merit in business terms, or about what ideas might be appropriate in future negotiations.
4.26.
The second alternative claim must be denied for these reasons. There is no sufficient likelihood of success on the merits to support this claim.
Concluding remarks
4.27.
This concludes the Court’s analysis and the disposition of the claims.
4.28.
At the end of the hearing, the Court said to Counsel that it intended to sacrifice exhaustive analysis in the interest of timing as it prepared the judgment in these summary proceedings. That is what the Court has done. The Court is satisfied that the relatively concise discussion above clearly expresses the Court’s thinking and reasoning and that the parties will understand the ideas, even though they may disagree and the discussion is shorter and less detailed than it might have been if the Court had taken two weeks or more to draft the judgment. The approach in this judgment is appropriate because the parties agree that timing is important because of the circumstances in the company and the business.
4.29.
Based on the above, the Court will deny all claims presented by ED and BH in these proceedings.
4.30.
ED/BH is the unsuccessful party in these proceedings, and they will be ordered to pay the costs. The costs will be calculated based on the maximum rate for NCC cases because this reflects the actual amount that is at stake in these proceedings and the parties’ discussions. The costs in CFH’s favour are set at:
- court fee € 7,928.00
- lawyers’ fee
€ 6,000.00(2 x € 3,000.00)
€ 6,000.00(2 x € 3,000.00)
total amount € 13,928.00.
Furthermore, the statutory interest (Article 6:119 DCC) on the costs of these proceedings will be allowed, as stated in the decision below. Post-judgment costs are due by law and it is not necessary to include them here.
5.Decision
5.1.
The claims are denied.
5.2.
ED and BH are ordered to pay the costs of these proceedings, set at € 13,928.00, plus statutory interest (under Article 6:119 DCC) effective the 15th day after the date of this judgment until full payment is made.
5.3.
This judgment is declared enforceable notwithstanding appeal.
Done by L.S. Frakes, Judge, assisted by A. Hut, Clerk of the Court.
Issued in public on 14 July 2023.
APPROVED FOR DISTRIBUTION IN eNCC
SIGNATURE PAGE 1 OF 2
L.S. FRAKES
(JUDGE)
SIGNATURE PAGE 2 OF 2
CLERK OF THE COURT