Tiscali 2009 Annual Report Download - page 136

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By means of provision dated 17 December 2003, the first level Dutch court deemed that in certain press
releases issued by WoL prior to 3 April 2000, sufficient clarity was not provided regarding the declarations
made public by its former chairman at the time of listing relating to his shareholding. Consequently, WoL was
held responsible vis-à-vis the parties who had subscribed the shares of the company at the time of the IPO
on 17 March 2000 (start date of trading) and who acquired shares on the secondary market up to 3 April
2000 (date on which the press release was issued, specifying the effective shareholding held by the former
chairman of WoL). WoL appealed against this decision, citing the correctness of the information prospectus.
On 3 May 2007, the Amsterdam Court of Appeal partially amended the decision of the first level court,
deeming that the prospectus used at the time of listing was incomplete in some of its parts and that WoL
should have corrected certain information relating to the shareholding held by its former chairman, reported
by the media before said listing; furthermore, it was deemed that the company had created optimistic
expectations regarding the activities of WoL.
On 24 July 2007, the Dutch association and the foundation mentioned above proposed an appeal before
the Dutch Supreme Court against the sentence of the Court of Appeal. On 2 November 2007, WoL and the
financial institutions tasked with the stock market listing filed their counter-appeal. In November 2009 the
Dutch Supreme Court pronounced its final sentence confirming the ruling of the Court of Appeal and ruled
that the IPO prospectus was not complete under certain aspects and that WoL management should have
provided additional information during listing. It should be mentioned that the ruling is limited to ascertaining
certain aspects of WoL responsibility and the financial institutions handling the listing with regard to the
obligations on disclosure during an IPO and defines certain principles that might be considered applicable
to future court decisions (e.g., on the proof of cause), while it did not rule on the actual damages, which
should be the object of new, separate and independent proceedings at the competent court petitioned by
investors. At present no such petition has been initiated. A dispute of a similar nature to that described
above was forwarded by another Dutch foundation, Stichting Van der Goen WOL Claims, in August 2001,
and letters were subsequently received from other parties, in which the hypothesis of being able to proceed
with similar action, if the conditions should apply.
These disputes are potentially significant; however, at present there are not enough sufficiently defined
elements for quantifying potential liability. Therefore, no provision was allocated in the financial statements.
Mobistar dispute
The indirect subsidiary, Tiscali International BV, is involved in a dispute furthered by the company Mobistar
NV (a Wanadoo Group company) in June 2006. The dispute concerns the termination by Wanadoo Belgium,
a company acquired by Tiscali in Spring 2003, of a dial-in traffic termination agreement with Mobistar NV
(hereinafter: Contract). Even if the contract for the sale of the Wanadoo Belgium shares from Wanadoo SA to
Tiscali Belgium provided the possibility of early termination of the Contract, a circumstance also confirmed
by Tiscali’s legal advisors, Mobistar however opposed this early termination and file suit. Subsequently,
Tiscali Belgium sold Wanadoo Belgium to Scarlet but remained liable for Mobistar demands.
Tiscali has brought before the courts (i) Wanadoo SA – responsible in accordance with the contract for the
sale of the Wanadoo Belgium shares to Tiscali Belgium, (ii) the legal advisors for the purchase transaction
– who issued an erroneous opinion on the possibility of terminating the Contract - and (iii) the respective
insurance company.
The petitum amounts to 4 euro million, nevertheless Tiscali believes that the same should be reduced (i) by
around 1 euro million on the basis of the correct interpretation of the Contract, (ii) by a further amount, since
Consolidated Financial Statements and Explanatory Notes