Rechtbank Amsterdam, 29-10-2025, ECLI:NL:RBAMS:2025:8066, C/13/769298 / HA ZA 25-1059

In de overeenkomsten is Falco Capital aangeduid als ‘the Seller’, is [eiser] aangeduid als ‘the Participant’ en is de stichting aangeduid als ‘the Foundation’. De overeenkomsten luiden voor zover relevant als volgt:

“Article 5 Requirements Participant

A Participant can only be a private person and/or a legal entity:

a. being employed by or providing services to the Company or one of its subsidiaries pursuant to a management agreement or an indefinite employment agreement, which includes non-compete, customer non-solicitation and employee non-solicitation provisions (the Contract of Employment), and any trial period having successfully been completed;

(...)

Article 6 Mandatory Offer

A Participant (Offeror) shall be required to offer any of its Depositary Receipts for sale and transfer in the event:

a. the Participant no longer meets the any of the requirements as mentioned in Article 5.1 of this Agreement; (...)

In the event any of the provisions set forth in Article 6.1 apply to the Participant (Offer Event), the Depositary Receipts owned by the Offeror (the Offered Depositary Receipts) shall be deemed having been offered by the Offeror in accordance with this Article 6 (Mandatory Offer):

a. As soon as reasonably practicable after the occurrence of an Offer Event, the Foundation shall inform the Participant in writing (Mandatory Offer Notice) on the occurrence of an Offer Event (the date of such notice hereafter the Notice Date).

b. The Mandatory Offer Notice shall contain the details of the terms and conditions under which the Offeror is obliged to offer the Offered Depositary Receipts (the Offer):

i. the details (to the extent required) of the offeree(s) to whom the Offered Depositary Receipts are initially considered to be offered and must be sold and transferred to (the Offeree), which shall be the Seller, unless the Mandatory Offer Notice indicates otherwise;

ii. the price of the Offered Depositary Receipts as per the date the Offer Event has occurred (the Offer Price) as determined by the Board in its sole discretion, thereby taking into account the provisions of this Agreement;

iii. the timeframe within which the sale, purchase and transfer by means a notarial deed or a private deed should be completed which in any event shall be one (1) month after the Notice Date; and

iv. a confirmation whether the Offeree has accepted the Offer.

c. Offeror shall not be entitled to withdraw the Offer.

d. The Offeree shall be entitled but not be obliged to accept the Offer.

e. The Participant hereby grants the Foundation an irrevocable power of attorney to sign, execute and/or deliver any such agreement, deed or any other document required to complete the sale, purchase and transfer of the Offered Depositary Receipts on behalf of the Offeror, in the event the Offeror has not completed the sale, purchase and transfer of the Offered Depositary Receipts within the timeframe as set forth in the Mandatory Offer Notice. In such event, the Foundation shall pay the Offer Price to the Offeror, after deduction of the costs, charges and expenses incurred as a result of the Foundation completing the sale, purchase and transfer of the Offered Depositary Receipts. (...)

Article 10 Miscellaneous

(...)

Governing law and jurisdiction

“SCHEDULE 5 URGENT CAUSE

(...)

e. when the Participant (as direct/indirect employee or manager) tempts or tries to tempt the Company or any of its subsidiaries, employees or clients to perform or participate in actions contradictory to law or good morals; (...)

h. when the Participant (as direct/indirect employee or manager) discloses confidential information regarding the Company or any of its subsidiaries, employees or clients, which he was expected to keep confidential; (...)

j. when the Participant (as direct/indirect employee er manager) crudely neglects the obligations imposed on him by the Contract of Employment; (...)”

“SCHEDULE 6 LEAVER TABLE (DEFINITION AND OFFER PRICE)

(...)

A Leaver, who has a Contract of Employment, is an Early Leaver in the event:

a. termination of the Contract of Employment at the initiative of the Participant which at the same time does not qualify as for Urgent Cause;

b. termination of the Contract of Employment at the initiative of the Company or any of its subsidiaries other than for Urgent Cause. (...)

(...)

The Offer Price shall be determined as follows:

(...)

b. if the Leaver is an Early Leaver, an amount equal to the lower of:

i. 100% of the Fair Market Value of the Offered Depositary Receipts; or

ii. 100% of the Purchase Price of the Offered Depositary Receipts.

(...)

e. if the Leaver is a Bad Leaver III, an amount equal to the lower of:

i. 50% of the Fair Market Value of the Offered Depositary Receipts or;

ii. 50% of the Purchase Price of the Offered Depositary Receipts.”

MANDATORY OFFER NOTICE

(...)

WHEREAS, the Participant no longer meets the requirements mentioned in Article 5.1 of the Sale Purchase and Transfer Agreements due to the termination of his employment at the initiative of the Participant effective 30 September 2024.

1. NOW AND THEREFORE, in accordance with Article 6 of the Sale, Purchase and Transfer Agreement, the Foundation issues this Mandatory Offer Notice to the Participant to offer all depository receipts (a total of 55,000) for sale on the date of receipt of this Notice to Falco Capital B.V.

2. The Foundation designates the Participant as a Bad Leaver III as a result of the termination of the employment of the Participant due to circumstances of Urgent Cause, in particular all of the following:

a. tempting or trying to tempt the Company or any of its subsidiaries, employees or clients to perform or participate in actions contradictory to law or good morals;

b. when the Participant (as direct/indirect employee or manager) discloses confidential information regarding the Company or any of its subsidiaries, employees or clients, which he was expected to keep confidential;

c. when the Participant (as direct/indirect employee or manager) crudely neglects the obligations imposed on him by the Contract of Employment.

3. The depository receipts are offered by the Participant and shall be purchased by Falco Capital B.V. at an aggregate Offer Price of €62,375, representing a discount of 50% of the Purchase Price of the depository receipts in accordance with Articles 2 and 3 of Schedule 6 of the Sale, Purchase and Transfer Agreement.

4. Falco Capital BV. has accepted the Offer and upon transfer of the depositary receipts the Offer Price shall become due from Falco Capital B.V. to the Participant. Payment of Offer Price by Falco Capital B.V. shall (subject to counterclaim or set-off, if any) be wired to the bank account of the Participant (...) as soon as possible following the transfer of the depositary receipts.