The High Court ruled that Adrianus Goudriaan may defer payment for shares in Bosal Nederland BV for two years after they are delivered, less up to 15 days. The court also granted the defendants a stay of the order requiring specific performance while they appeal, subject to protections for Goudriaan’s information and petition rights.
The judgment, delivered by Mr Justice Quinn on 16 August 2019, dealt with two disputes arising after the court’s principal judgment of 24 May. In that earlier decision, the court found that Goudriaan had validly exercised options over 155 shares, representing 15% of Bosal, on 28 October 2016, and was entitled to specific performance of the shareholders’ agreement. The defendants had argued that the option period had expired. Their intended appeal remained pending at the time of this judgment.
The share option plan allowed payment to be postponed for up to two years after exercise, without interest. The defendants argued that the deferral had expired in October 2018, so Goudriaan would have to pay €1.55 million when the shares were delivered. Goudriaan argued that this would let the defendants benefit from their refusal to transfer shares within the plan’s 15-day delivery period.
Quinn found the plan’s payment and delivery provisions interdependent. Because the obligation to pay arose on delivery, the defendants’ failure to deliver could not extinguish the deferral before payment became due. The court held that Goudriaan could postpone payment for two years, subject to the 15-day delivery period: in the circumstances, two years less 15 days from delivery. The parties told the court that it did not need to decide the separate provision for an interest-free loan.
The defendants also sought a stay pending appeal. Goudriaan raised concerns about restructuring, possible dilution of his potential shareholding, and his ability to obtain information or petition the Dutch Enterprise Chamber while not registered as a shareholder. The defendants disputed his concerns and said the restructuring would convert about €75 million of subordinated debt into equity and help maintain Bosal’s Ford contract. The court did not determine the merits of the restructuring or allegations of mismanagement.
The stay is conditional on the defendants immediately giving Goudriaan enforceable contractual rights to petition the Enterprise Chamber in relation to Bosal and to obtain information available to a shareholder under Dutch law, including information otherwise available at shareholder meetings. The petition right cannot be limited to challenges to share conversions. The agreement expires two months after the earliest of Goudriaan becoming a shareholder or the proceedings ending by final order, or his no longer pursuing the claim. The court recorded Goudriaan’s undertaking as to damages if specified Irish and Belgian appellate outcomes go against him. The order was to be perfected, with liberty to apply.