Onder 2.18 Gerechtshof Amsterdam 10 december 2019

“ As explained in our earlier e-mail, we added wording into this clause to provide that before the Company assumes the burden of any debt or upstreams any dividends or other proceeds to service any debt at a higher level in the structure, the Management Board should conduct a corporate benefits analysis to decide whether entering into any such debt transaction is in the Company's best interests. This analysis should be done to mitigate against the risk of the Managers being held liable by the Company for improper discharge of duties. The wording we added included a right for the Management Board to engage financial advisors to carry out this analysis for the board (at the costs of the Company). The wording we added is intended primarily to deal with the acquisition finance and the 'debt push down' to the Company that we understand will occur after completion under the SPA and signing of the investment agreement. Freshfields have amended this and applied the wording only to any future debt transaction. In addition, they have included an acknowledgement by the Managers that the corporate benefits analysis relating to the acquisition finance for this transaction has already been carried out and this analysis determined that acquiring this debt is indeed in the Company's best interest. This is not the case and the wording should be rejected. ”

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