The High Court has ruled that Adrianus Goudriaan was entitled to exercise share options in Bosal before his termination took effect, and granted him a decree for specific performance of the Shareholders Agreement, including its Share Option Plan.
The decision does not determine whether his dismissal was valid. The court said that issue was being contested in other proceedings and was not before it. It also left further or other orders to be addressed after hearing counsel.
Goudriaan’s claim concerned 155 options, representing 15% of Bosal’s share capital. The plan said the options expired in the event of termination of his Services Agreement for an urgent reason under Article 11.3. That provision allowed Bosal to terminate immediately and without notice in specified circumstances. The defendants argued that the termination process began when Goudriaan received notice of a proposed dismissal meeting on 20 October 2016, so his option rights had already expired or he was otherwise precluded from exercising them.
Goudriaan exercised the options on 28 October 2016. Bosal’s shareholder dismissed him at a meeting on 4 November, and Bosal later wrote that it had terminated his Services Agreement under Article 11.3. The defendants also relied on Dutch law arguments about notice required for removing a company director and the relationship between that role and Goudriaan’s executive functions.
Justice Quinn held that “termination” in the plan meant the occurrence of termination, not the start of a process or notice of a proposed termination. Treating notice of the meeting as termination would give the event retrospective effect and introduce uncertainty, including where a proposed termination did not ultimately occur.
The judge was not persuaded that the agreements or the relevant Dutch law principles required a broader reading. The plan specifically referred to Article 11.3, which provided for immediate termination without notice. The court also found no basis to conclude that the parties knew or ought to have known, when making the agreements, that termination could never occur on those stated terms.
The court therefore concluded that the option period had not expired when Goudriaan exercised his options. It ordered specific performance of the Shareholders Agreement, including the plan. The judgment did not decide the merits or validity of the termination, and the court reserved further orders for a later hearing.