Gerechtshof Amsterdam, 19-03-2019, ECLI:NL:GHAMS:2019:901, 200.218.429/01

The Earn-Out Payments for FYE 2012, FYE 2013 and FYE 2014 shall be calculated as set out in this Article 2.2:

(...)

ARTICLE 4 - COVENANT

Nothing contained in this Agreement shall impair or restrict the Purchaser’s ability to conduct its businesses (...) as it deems fit in its sole discretion in accordance with its internal business practices and processes, however, in reasonable consultation with the Company’s management board (...) and taking into account the commercial agreement between the Parties as set forth in Schedule 2. The Purchaser has no obligation to operate the Group in order to achieve any Earn-Out Payment (...). No act, or failure to act, of the Purchaser other than with regard to its obligations as included in the commercial agreement as set forth in Schedule 3 [bedoeld is Schedule 2, hof] shall give rise to a claim by the Sellers against the Purchaser that the Purchaser’s conduct (or lack thereof) caused the Sellers to fail to achieve any Earn-Out Payments hereunder. The Earn-Out Payment is speculative and is subject to numerous factors outside the control of the Purchaser. There is no assurance that the Sellers will receive any Earn-Out Payments and the Purchaser has not promised nor projected any Earn-Out Payment. The Parties solely intend the express provisions of this Agreement to govern their contractual relationship. Accordingly’, the Sellers hereby waive any fiduciary duty of express or implied duty of the Purchaser to the Sellers (...) with respect to the achievement of the Earn-Out Payment(s) hereunder.

Als Schedule 2 bij de earn out-overeenkomst is een zogenaamde commercial letter gevoegd, waarin onder meer het volgende is opgenomen:

SCHEDULE 2 — COMMERCIAL LETTER

Separate Line of Business

Buckaroo will have a separate Profit & Loss, but fully in line with the accountancy and reporting requirements (GAAP/IFRS) of the Intrum Group;

The activities of Buckaroo will be part of the service line Payment Services;

Buckaroo will have a Supervisory Board appointed by Intrum and will be supervised according group governance and group code of conduct.

Intrum will connect its services with Buckaroo’s services

The parties undertake to connect Intrum’s Value added Services i.e. Collection Services, Payment Guarantee and Credit Optimization Services to Buckaroo’s services.

As a joint effort, the provision of these services should first be made in the Netherlands and later for every European Country where the Buckaroo Services are introduced and where Intrum Justitia offers the relevant services.

As long as Intrum’s services are not yet connected, for whatever reason, to Buckaroo, Buckaroo is free to use other suppliers of these services. Moreover, should the parties not be able to connect Intrum’s services, Buckaroo is free to use alternative suppliers until connection is done.

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Intrum will be connected as Payment Guarantee Provider

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European roll out of Buckaroo Services

The parties will prepare the services of Buckaroo for internationalization, within a time schedule to be agreed. The top 3 prioritized countries to be rolled out to, on the basis of business plans, are:

1 Netherlands;

2. Germany;

3. France.

The roll-out business plan will be jointly prepared during 2012, such joint preparation to be initiated no later than 30 day’s from closing.

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Buckaroo’s Business Plan 2012-2014

The Amended and Restated Earn-Out Agreement is based on Buckaroo’s business plan for 2012-2014, as prepared by the Sellers and received (but not endorsed) by the Purchaser. It is agreed that this business plan is based on Buckaroo’s business on a stand-alone basis, primarily in the Netherlands. Intrum Justitia (NL) will offer payment services to her clients, but it’s the decision of her clients to accept whether or not Buckaroo’s offer. The business plan does, however, assume that 10-20 percent of the revenues in 2014 may come from Buckaroo services offered on other markets

(Belgium, Germany and France).

Feasibility

Roll-out to additional markets will always be subject to satisfactory performance on existing markets. The roll-out to new markets and connection of Intrum services to Buckaroo’s services are also subject to:

 the action being commercially sensible;

 legal clearance in relevant markets; and

 the absence of any material adverse event that negatively affects the business case for the roll-out or the connection.

In artikel 7.2 van de earn out-overeenkomst is een entire agreement clause opgenomen die luidt als volgt:

This Agreement (together with any documents referred to herein or executed contemporaneously or at closing by the Parties in connection herewith) constitutes the whole agreement between the Parties and replaces and supersedes any previous agreements, including the Previous Earn-Out Agreement, or arrangements between them relating to the subject matter of this Agreement and it is expressly declared that no variations of this Agreement shall be effective unless made in writing and executed by the Parties.

INTRUM BUCKAROO AND INTRUM

We have serious issues that need to be resolved immediately. On the other hand, we have great market potential (...)

Lets do the following short term actions:

1. Resolve personal relationships, align goals and actions for the next 18 months (...)

2. Establish a monthly meeting, 2 hours (...)

(...)

4. Identify the type of client needs where Buckaroo solutions should be offered to the clients outside the Netherlands, especially where Intrum is market leader and have excellent client relations (...)

5. Define how Buckaroo business unit can best be organised within the Intrum group to maximise sales and ebit (...)

6. Governance and internal routines of Intrum Buckaroo need of course to be top notch (...)

[geïntimeerde sub 3] did not officially told me this, but I was aware of the discussions and already expected this. I think it’s a wise decision and I look forward to a great and exciting journey with you and Intrum Finance. There is a lot of opportunities and challenges and I feel that we are at a start of a new rollercoaster period! (...) It’s important that we have an agreement with Intrum/ [geïntimeerde sub 3] about the earn out and the underlying targets.