Dear all,
As promised find below my further comments on the verdict as well as an outlook for the future procedures.
A. (When) do you get are money back?
You will understand that this is a very complicated legal question, but so far I can state the following:
1. The Intervention Law (the basis for the expropriation) indicates that the payment of the compensation must be made within four weeks after the verdict has become final.
2. Under Dutch Law a verdict is final, if none of the parties decides to appeal the verdict (in this case at the High Council) and this should be done within three months after the verdict from the Enterprise Champer has been issued (so on May 11 at the latest).
3. If no cassation is brought forward, the compensation should be paid ultimately on June 11 at the latest (but the State can decide to pay earlier on a voluntary basis).
4. However, if one of the parties decides to file a cassation request (on a for the bondholders relevant part of the verdict), a complicated situation emerges because the Enterprise Chamber has declared the verdict ‘enforcable’ (which implies in principle the obligation to pay directly, i.e. within the terms of the Intervention Law).
5. I have consulted various lawyers this weekend and several opinions have been exchanged but no decisive conclusion can been drawn so far on wether these payments actually have to be made, irrespective of a cassation. There is an obvious contradiction between ‘enforcability’ (which would imply ‘immediate payment’) and suspensive aspect of filing a cassation (‘which would imply the postponement of the payment’). To complicate this matter further, the party that eventually has to pay immediately, might even also ask the High Council to postpone this obligation. I will update you of course on this issue if and when relevant.
B. How much money will you ultimately receive?
Again no straight answer (sorry), because it depends on the timing of the payments and the type of bonds you have owned. In my flash update from last Thursday I have focussed on the value of the bonds from SNS Bank, because 99% of the participants in your foundation did own these bonds.
Based on the assumption that the redemption will take place on June 11 2021 the value can becalculated as follows (with reservation)
11,25% SNS Bank Basic value 76,53% + Legal interest 15,48% = Total compensation 92,01% of the nominal value
6,25% SNS Bank Basic value 77,92% + Legal interest 15,77%= Total compensation 93,69% of the nominal value
People who owned other Bonds from SNS Bank, or bonds from SNS Reaal (the Holding) can contact me directly by e-mail (please submit the exact bond specification) and I will make the calcuation for them separately.
C. How likely is it that parties will file a cassation request?
This is of course a crucial question, because it determines the future developments for you personally and the activities of the foundation.
The chances that former shareholders will appeal the verdict is extremely high. They didn’t get any compensation, which is completely correct, because the subordinated bondholders have not received a full compensation (100% excluding legal interest). However, the appeal from shareholders will not harm bondholders because that part of the verdict is not relevant for you.
Some other bondholders (not participating in the foundation) seems disappointed because they had expected to get a compensation of 100% excluding legal interest. These expectations were unrealistic because it was obvious that SNS had problems in 2012/2013, the Enterprise Chamber has decided that the assumption that SNS would have gone bankrupt after February 1 2013 must be considered realistic and the independent competent experts have calculated a value far below this 100%. Therefore I think that after the first disappointment has vanished, they ultimately will accept the verdict.
Crucial of course is the attitude of the Dutch State, whereby we must realize that fort he Governement ‘cassation’ is business as usual, because the State has plenty of time and deep pockets. However, when we evaluate the whole process we much conclude that a succesful cassation would be incredible, because the High Council doesn’t look at the facts anymore but just focusses on the proper interpretation of the law and/or procedural flaws. We can only hope that the upcoming elections in the Netherlands and the problems caused by Covid 19, distract the attention from our procedure whis would imply that the State would rest their case and they grant all of you the proper compensation for the expropriated bonds.
D. Future outlook
Four scenarios emerge for the future:
1. No cassation: you will receive the compensation in june this year
2. Cassation that is turned down in the initial phase (i.e. the High Council declares the attempt inadmissable): you will receive the compensation by the end of the year
3. Cassation that is finally not succesful (turned down as a result of the procedure): you will receive the compensation end of 2022/beginning of 2023
4. Cassation that is finally succesful: The Enterprise Chamber must redo the procedure, which might – dependent upon the specific verdict of the High Council – take another couple of years.
So the outcome still looks promising as I have stated from the start of the foundation, now more than 8 years ago. However I have underestimated the length of the process and although I am not to blame for this, I feel sincerely sorry for you. I will keep concetrating however on a proper and speedy progress of this procedure, which ultimaterly must lead to a statisfying result.
