Tiscali 2009 Annual Report Download - page 195

Tiscali Group: Annual Report 2009
194
By means of ruling 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 has filed an appeal against this decision and has argued 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 optimist
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 decision of the Court of Appeal. On 2 November 2007, WoL and the
financial institutions tasked with the stock market listing filed their own counter-appeal. The Dutch Supreme
Court has made its final ruling in November 2009 confirming the Appeal ruling and thus establishing
that the IPO prospectus was not complete in some respects and that the WoL management should have
provided some additional information during the listing. It should be pointed out that the judgement limited
itself to ascertaining certain profiles of WoL liability ad that of the financial institutions instructed to carry out
the Stock Market listing with reference to the obligations for complete correctness of information in an IPO
and set out a few principles that could be deemed applicable to any future judgements (e.g. with regard to
the proof of a causal link), whilst it does not make any comments on the actual entitlement to any damages
which should be due to form the scope of new, separate and independent proceedings made before the
relevant Courts on the part of the investors; at present no such proceedings have been filed. A dispute of
a similar nature to that described above was launched 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 there are at present no sufficiently defined details to be
able to quantify the potential liability. Therefore, no provision was made in the financial statements.
Mobistar dispute
The indirect subsidiary Tiscali International BV is involved in another dispute, launched in June 2006
by the Mobistar NV Company (a Wanadoo group company). The dispute is about the termination by
Wanadoo Belgium, a company purchased in 2003 by Tiscali Belgium, of a dial-in traffic connection
contract (hereinafter the Contract) with Mobistar NV. Even if the contract to sell the shares in Wanadoo
Belgium from Wanadoo SA to Tiscali Belgium foresaw the possibility of an early termination of the contract,
which circumstance has also been confirmed by Tiscali’s legal advisors, Mobistar nevertheless opposed
that early termination by launching the present proceedings. Subsequently, Tiscali Belgium sold Wanadoo
Belgium to Scarlet whilst remaining liable with regard to Scarlet for Mobistar’s claims.
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.