Rechtbank Gelderland, 07-07-2022, ECLI:NL:RBGEL:2022:4987, C/05/405470 / KG ZA 22-196

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Artikel 1:

“Algemene Vergadering”

het vennootschapsorgaan dat wordt gevormd door de aandeelhouders dan wel een bijeenkomst van aandeelhouders (…);

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Bestuur:

Artikel 10:

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4. Bestuurders kunnen te allen tijde door de Algemene Vergadering worden geschorst (…). De schorsing kan te allen tijde door de Algemene Vergadering worden opgeheven.

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6. Een Bestuurder wordt in de Algemene Vergadering waarin zijn schorsing (…) aan de orde komt in de gelegenheid gesteld zich te verantwoorden (…)

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Taak en bevoegdheden:

Artikel 11:

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9. De Bestuurders hebben het recht de Algemene Vergaderingen bij te wonen; zij hebben in deze vergaderingen een raadgevende stem.

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Algemene vergadering:

Artikel 15:

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3. Niettemin kunnen door de Algemene Vergadering besluiten worden genomen indien geen oproeping conform lid 2 van dit artikel plaats vond, of het betreffende punt niet bij de oproeping werd vermeld, mits alle Vergadergerechtigden ermee hebben ingestemd dat de besluitvorming over die onderwerpen plaatsvindt en de Bestuurders voorafgaand aan de besluitvorming in de gelegenheid zijn gesteld om advies uit te brengen.

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5. Besluiten van de Algemene Vergadering kunnen in plaats van in een vergadering ook op andere wijze worden genomen (…). De Bestuurders worden voorafgaand aan de besluitvorming in de gelegenheid gesteld om advies uit te brengen.

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‘(…) we have a very urgent situation that we need to talk to you bout at short notice totday (…) Please let us know which time would suit both of you – I will then send out the invitation!

Thank you and talk to you later!

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‘(…) We hereby confirm your suspension as Managing Director of Tismi B.V. (the Company) with immediate effect as of 2 June 2022.

You have been informed of the reason for the suspension. In short, and as discussed during our conversation on 2 June 2022, the decision to suspend you is based on the fact that both Link (…) and the Company have become aware of suspicious activities going on within Tismi and, as a result thereof, engaged an audit firm to conduct both business related and financial forensic investigations. During the investigations, it is of importance to the Company that you will be suspended, in order to (i) allow the audit firm to perform a thorough investigation and (ii) avoid that any crucial data will be lost as of the suspension date and during the investigations.

You have been given the opportunity to present your point of view regarding the contemplated suspension as Managing Director with immediate effect. However, you have not convinced us to decide otherwise. We see no other alternative than to proceed with your suspension until at least after the investigations and until further notice.

Enclosed you will find a copy of the shareholders resolution in respect of your suspension as a Managing Director of the Company (…). You are no longer allowed to represent the Company.

You are required to return your company laptop, keys to the Company buildings and other Company belongings immediately in order to avoid that any confidential data is lost as of the suspension date and during the investigations. We will also disconnect you from the Company’s intranet. (…)’

Bij de brief is een door Berge ondertekende ‘Shareholder’s Resolution’ gevoegd. Daarin is, voor zover van belang, vermeld:

‘(…) HEREBY RESOLVES AS FOLLOWS:

1 To suspend (…) [eiser 2] (…) as a member of the Management Board of the Company (Board) as per 2 June 2022.

AND HEREBY:

2 Confirms that at the date hereof the Company’s articles of association do not restrict or exclude the adoption of shareholder’s resolutions without holding a meeting.

3 Confirms to agree with this form of decision-making.

(…)

6 Confirms that each member of the Board has been given the opportunity to advise on the resolution adopted hereby.

(…)’

‘(…) We hereby confirm your suspension as employee of Tismi B.V. (the Company) with immediate effect as of 2 June 2022.

During our meeting on 2 June 2022, we informed you that both Link (…) and the Company have become aware of suspicious activities going on within Tismi and, as a result thereof, engaged an audit firm to conduct both business related and financial forensic investigations.

We informed you that you have been suspended of (among others) misbehavior as employee of the Company. Consequently, the Company has lost confidence in you and can therefore no longer maintain you as employee and suspend you with immediate effect.

You have been given the opportunity to present your point of view regarding your suspension, but this has not convinced us to decide otherwise. The foregoing has resulted in a situation which is unsustainable. Furthermore, during the investigations, it is of importance to the Company that you will be suspended, in order to (i) allow the audit firm to perform a thorough investigation and (ii) avoid that any crucial data will be lost as of the suspension date and during the investigations.

You will remain suspended at least for the duration of the investigation. After the investigations have been completed, the Company will determine whether any further actions will be taken.

As a consequence of the suspension, you are required to return your company laptop and hand over the keys of the Company buildings immediately in order to avoid that any confidential data is lost in the period of your suspension. We will also disconnect you from the Company’s intranet. (…)’

‘(…) Please find below our first comment on the letter we have just received.

First of all, contrary to what is stated in the letter, we have not been informed on the reason for the suspension. The sole matter that is told to us is that we are suspended, not the reason why. Therefore we also were not able to present out point of view as we have no clue on the reason for the suspension.

The content of the letter highly surprised us. We really like to understand the reason for the suspension.

Again we like to express that we are still highly surprised by the current situation and the statement below.

We are not aware of doing anything wrong.

As such we will cooperate fully in any investigation what so ever. (…)’

‘(…) That is all there is at this stage. (…)’

‘(…) Wij hebben opdracht verkregen van LINK (…) tot het doen van onderzoek naar mogelijke onregelmatigheden in relatie tot Tismi (…) In onze opdrachtbevestiging is het doel van dit onderzoek als volgt beschreven:

Investigation objective

Grant Thornton conducts an investigation into possible irregularities to the ownership and use of IP addresses and phone number ranges, invoicing, surcharges and the separation process between Tismi and Lancelot in general, and reports its findings in a clear and understandable written report in order to enable you to form an opinion on the nature and extent of possible irregularities. The results of our investigation also enable you to make informed decisions about possible next steps.

In het onderzoek wordt uw mogelijke betrokkenheid als Business Development Manager van Tismi bij de te onderzoeken aspecten onderzocht.

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Voorts heeft u recht op hoor en wederhoor, wat betekent dat u in de gelegenheid wordt gesteld om te worden gehoord en het recht heeft om te reageren op onze bevindingen. (…)

Nadat wij ons op grond van ons onderzoek een beeld hebben gevormd van de te onderzoeken aspecten, zult u door ons worden uitgenodigd voor een interview om daarmee uw perspectief op deze aspecten te krijgen. (…)

Na de interviews en eventuele nadere gegevensverzameling en andere onderzoekswerkzaamheden zullen wij een conceptrapport opmaken waarin wij verslag doen van onze feitelijke bevindingen. Wij zullen u in de gelegenheid stellen, voordat wij ons definitieve rapport aan onze opdrachtgever uitbrengen, om een reactie te geven (‘wederhoor’) op de bevindingen in het conceptrapport. (…)’

‘(…) Vooropgesteld dient te worden dat cliënten volkomen overvallen en erg geschrokken zijn van de recente gang van zaken. Zij zijn niet bekend met enige onregelmatigheden binnen Tismi en tasten momenteel nog steeds in het duister over hetgeen hen in dat kader potentieel wordt verweten. Cliënten zijn daarover door LINK noch Tismi geïnformeerd, en achten de handelwijze van LINK en Tismi mede daarom buitengewoon disproportioneel en prematuur.

Cliënten zullen desalniettemin alle medewerking verlenen aan het door GT uit te voeren onderzoek. Wel vernemen zij graag welke vermeende onregelmatigheden worden onderzocht, zodat zij GrantThornton eventueel ook uit eigen beweging nadere informatie kunnen verschaffen die mogelijk relevant is voor het onderzoek. Met het oog op een correcte invulling van het beginsel van hoor en wederhoor, is het ook essentieel dat cliënten weten wat de vermeende onregelmatigheden inhouden en wat hen in dat kader potentieel wordt verweten.

Mede gelet op de impact die de thans ontstane situatie heeft op cliënten alsook op de onderneming van Tismi, gaan zij ervan uit dat het onderzoek met de nodige voortvarendheid wordt uitgevoerd. (…)’

‘(…) As also explained during our call, my clients are left with a sense of shock and disbelief following the inexplicable and rash actions taken by LINK (…) and Tismi (…). A week has now passed since my clients were suddenly suspended in relation to supposed ‘suspicious activities’ within Tismi and since LINK has instructed GrantThornton to carry out an investigation into those suspicious activities. To date, my clients have still not been informed on what it is they are potentially accused of and it remains unclear what it actually is that GrantThornton is going to investigate. To be clear, my clients are not aware of any irregularities within Tismi and strongly deny any wrongdoing whatsoever.

Contrary to what has been indicated in the letters sent to my clients on behalf of Tismi on June 2nd, 2022, my client have not been given the opportunity to present their point of view regarding their suspension as employee and – insofar as it concerns Mr. [eiser 2] – managing director of Tismi. LINK and Tismi have not even made any effort to directly discuss the matter with my clients and have not even allowed my clients to provide an explanation on whatever has led to concerns about certain activities. They are simply left in the dark on what the supposed suspicious activities entail and on what their supposed involvement therewith would be, and have therefore not been able to respond to the supposed allegations against them. This is unacceptable (…)

I can therefore only conclude that my clients’ suspension is unwarranted, premature and entirely disproportionate, and that LINK and Tismi have acted without the due care owed to my clients by virtue of good employment practices, rules of corporate governance and generally accepted standards. In addition, this means that the shareholders’ resolution regarding Mr. [eiser 2] ’s suspension as managing director is subject to annulment.

Apart from the fact that it is manifest that this breach of due process is starting to become irreparable, the actions of LINK and Tismi have already caused, and will likely continue to cause, significant damage to my clients’ reputation and legitimate interests. It is also evident that this is starting to cause serious damage to Tismi itself. As discussed, my clients have already been approached by several external parties, including some of Tismi’s biggest clients, who have apparently been informed on the fact that my clients are no longer active within Tismi. Obviously, it is unacceptable that information regarding my clients’ position within Tismi had been disclosed. LINK and Tismi are solely responsible for the damage their actions are causing to both my clients and Tismi.

As already noted during our conversation, my clients will fully cooperate with the investigation carried out by GrantThornton as they are convinced they will be able to definitively clear their name, whatever it is they are being accused of. Notwithstanding, they believe it is very important that they are also given the chance to discuss the situation with the representatives of LINK and Tismi directly, which would allow them to respond to any questions or concerns that might exit regarding the activities at Tismi. They strongly feel that this could prevent a further escalation. I also note that it is of the utmost importance that this matter is dealt with as expeditiously as possible. Each day that the current situation is allowed to continue will cause additional and irreparable damage to my clients and Tismi.

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For now, I ask that you ultimately by tomorrow, provide me with the following:

(i) Information on the supposed suspicious activities within Tismi and my client’s supposed involvement therewith;

(ii) A confirmation that LINK and Tismi will cease and desist all communication, both externally and internally, regarding my clients and the current situation;

(iii) A confirmation on whether LINK and Tismi are prepared to discuss the situation that has arisen with my clients directly, also with a view to prevent a further (legal) escalation.

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‘(…) Legitimate reasons for suspension

(…) Tismi (…) and LINK (…) want to emphasize that there are legitimate reasons for the suspension of your clients. Your clients have been informed that both LINK and Tismi have become aware of suspicious activities going on within Tismi and, as a result thereof, they engaged Grant Thornton (GT) to conduct both business related and financial forensic investigations. The suspension of your clients is imposed as a disciplinary measure (ordemaatregel) in light of the investigations of GT which are currently being carried out.

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It is of vital importance that thorough investigations are conducted and it should be avoided that any crucial data will be lost during the investigations. Both Tismi and LINK strongly believe that a return of your clients to work during the investigations may be harmful for the investigations, given the fact that (i) your clients would then be in touch with customers and the personnel of Tismi and (ii) your clients would (in theory) be able to remove crucial information and documentation.

As a result, both Tismi and LINK have made a balanced weighing of interests, and concluded that the interests of your clients in continuing to perform their work do not outweigh the compelling interests of both Tismi and LINK with regard to being able to have thorough investigations conducted. My clients are therefore not willing to lift your clients’ suspension.

Your requests

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My clients believe that it would not make any sense – and that it would be premature – to discuss the suspicious activities with your clients at this stage already. GT will give your clients the opportunity to present their point of view regarding the suspicious activities during the investigations and to provide GT with all information and documentation which they deem necessary. I understand from my clients that interviews have already been scheduled to that end.

(…)

Tismi has informed its clients (who contacted Tismi in the meantime) that your clients are unavailable until further notice and that the clients should reach out to another person within Tismi. Tismi nor LINK has informed a third-party about the pending investigations and/or the suspension of your clients. (…)

As mentioned (…), my clients believe that it would not have any added value to discuss the situation with your clients pending the investigations. It is in the interest of both parties to await the results of the investigations, prior to discussing the case directly with each other. (…)’

‘(…) Based on the technical and financial analysis and interviews held we derived preliminary findings. The preliminary findings initiated some additional questions that need to be investigated further. These questions for instance relate to the financial impact of the technical entanglement between Tismi and Lancelot. We also reached out to external parties to gain a better understanding on the information known at the time of the acquisition.

(…)

Our planning is as follows:

 We will put all efforts in to finalize our investigative work by Wednesday 6 July

 We will then have a draft report available by the end of this week, to be submitted to both subjects to the investigation (as part of their right of reply) as well as yourself.

 Once we have received responses to the draft findings we will submit a final report to you. We cannot say when exactly this will be, since we have to allow subjects to the investigations a decent amount of time to respond. This process could take up to two weeks.

We appreciate that there is time pressure from your end and also from the persons subject to the investigation. In the best interest of all parties involved we also need to be careful and diligent. (…)’

‘(…) Two particular areas that require further investigation relate to Tismi’s customer MessageBird and the (financial) interdependency between Tismi and Lancelot. Late last week. Grant Thorton reported to our client that during the investigations certain possible irregularities with regard to (incorrect) invoices sent to MessageBird from Tismi were discovered. The foregoing raise the question whether the disclosed information during the purchase process of Tismi was sufficient. With regard to the interdependency between Tismi and Lancelot, Grant Thornton reported that further investigations are required to assess the impact on financial records. (…)’

‘(…) In other words, the ‘areas’ that you are referring to relate to topics that are long since known to your client and which can in all reasonableness not give rise to any concerns about ‘possible irregularities’ and cannot have been the motive for the investigation by Grant Thornton. Moreover, any supposed concern that LINK might have in relation to its position as a party to the SPA cannot constitute grounds for any suspension of my clients in their position of managing director and employee of Tismi. Notably, the scope of the investigation of GrantThornton is also limited to the period after completion of the transaction. The fact LINK has apparently used its position as sole shareholder of Tismi to effectuate the suspension of my clients in relation to – wholly unfounded – concerns that my clients would somehow have acted in breach of their obligations under the SPA, is an objectionable misuse of its position and power.

Your clients are now clearly engaged in a fishing expedition in an attempt to cover up for the fact that, even after more than a month had passed, my clients have not been made aware of even a single concrete allegation of supposed wrongdoing. Apparently there has never even been such a concrete allegation. It is unbelievable that your clients are now basically asking for more time to come up with answers which they should have already had readily available when they decided to take the damaging step of suspending my clients. (…)’