‘The Investor [Glocin] shall provide a further contribution to the Entrepreneur [Bancibo] for the operation of the Company [respectively UAB, ATB AG and SWM AG] in amounts sufficient for its maintenance, and this contribution shall form part of the Investment. The amount of the contribution shall be determined by mutual agreement of the Parties [Glocin and Bancibo], according to the needs of the Company.’
‘The Investor shall furthermore increase its Investment by the payment to the Entrepreneur in the following cases: 3.4.1 When agreed between the Investor and Entrepreneur. 3.4.2 When prompted to do so by the Entrepreneur in cases where changes in legislature or decisions of the Regulator, require or recommend an increase in the Capitalisation of the Company in order to function as a payment institution or other activity necessary or expedient for the continuation of the Project; the Investor shall fund 100% of these increases For the avoidance of doubt, the Parties hereby state that this Agreement does not pertain to any direct payments from the Investor to the Company, unless a separate agreement of the Investor and Entrepreneur specifies such a form of payment.’
‘[32] The court will restrain a company from presenting a winding up petition if the company disputes, on substantial grounds, the existence of the debt on which the petition is based. In such circumstances, the would-be petitioner’s claim to be, and standing as, a creditor is in issue. The Companies Court has repeatedly made clear that where the standing of the petitioner, and thus its right to invoke what is a class remedy on behalf of all creditors, is in doubt, it is the court’s settled practice to dismiss the petition. That practice is the consequence of both the fact that there is in such circumstances a threshold issue as to standing, and the nature of the Companies Court’s procedure on such petitions, which involves no pleadings or disclosure, where no oral evidence is ordinarily permitted, and which is ill equipped to deal with the resolution of disputes of fact. … [34] Further, it is an abuse of process to present a winding up petition against a company as a means of putting pressure on it to pay a debt where there is a bona fide dispute as to whether that money is owed: Re a Company (No 0012209 of 1991)[1992] BCLC 865 . [35] However, the practice that the Companies Court will not usually permit a petition to proceed if it relates to a disputed debt does not mean that the mere assertion in good faith of a dispute or cross-claim in excess of any undisputed amount will suffice to warrant the matter proceeding by way of ordinary litigation. The court must be persuaded that there is substance in the dispute and in the company’s refusal to pay: a ‘cloud of objections’ contrived to justify factual enquiry and suggest that in all fairness cross examination is necessary will not do.’
‘[8] During the initial stage of the joint venture project as to the Companies, Glocin and Bancibo did not enter into any formal contract, relying simply on verbal agreement that Glocin would fund any operational costs of the Companies for which Bancibo would issue monthly invoices as well as invoices for occasional one-off expenses. [9] Indeed, this arrangement had taken place over 10 months and continued until the Contracts…. were signed by Bancibo and Glocin. The parties cooperated under the assumption that the contracts would eventually be signed and have been working on negotiating the wording since at least December 2020. [10] I enclose herewith, at Exhibit JK1/1 invoices, together with rationale for such invoices for the period of August 2020 to June 2021 showing that Glocin were requested to pay for the operational expenses of the Companies. I can confirm that payments were made in accordance with such requests up till and including payments for expenses made in August 2021, invoiced in September 2021. [11] Nothing other than the invoices or the rationale for the invoices was sought by Glocin and it was effectively agreed by the conduct of the parties that funding of the Companies would take place in this manner. Short discussions were sometimes held verbally on personal meetings or telephone.’
‘Mr Kubelka, It is good that the contracts are revised word by word. It is just really strange that everything takes so long. It has already been three months since we paid you a deposit for banking software while you have not even signed the contract on its acquisition to this day. Therefore, I ask, on what basis was the deposit collected by you? Why did you ask us to pay almost half of the estimated price of the software although even after three months from the time of payment from our side you have not set any legal ground on the basis of which Probanx could demand payment from us? And I’m not even talking about the fact that you didn’t consult with us at all about the decision to buy the software from Probanks. We paid more than 50 thousand EUR for a security project that we have not even seen… Don’t get mad Mr Kubelka, but we still don’t have a signed control agreement for ATB, not to mention UAB… We pay exorbitant amounts for the monthly administration of both companies only on the basis of the [breakdown] of costs you declared while we have no idea how much everything really costs and whether these fees are for what you declare. We are investing insanely high funds, often clients’ funds, which we had to start covering by selling your own GLOCIN shares which are basically not covered by you - just a gentleman’s agreement. Above all that, these are not easy times, the implementation time is incredibly long and the result is not visible anywhere yet. Don’t be mad at me, but I had to write this to you … even the card program which was supposed to work from May does not work. At the same time, we did not cause anything that would cause a delay in the project… We still pay - as a party that “shook hands” with you at the beginning of the cooperation with you to agree on a project that is quite important. We have a huge responsibility for our clients who trust us – still! But if the situation continues to develop in this way, I am afraid that trust is going to be disrupted. The fact that no contract for banking software has been signed on your part so far even though you collected more than CZK 5.3 million for the purchase of this software three months ago does not indicate a well-run project. I feel that the path we have taken is not only thorny but I’m also beginning to worry about it being a dead end. Please be aware that we are investors who pay for basically everything and we only pay for it because we really just shook hands with each other … However, this gentleman’s agreement will not be enough for our investors (now also shareholders) in the future… Therefore, please do everything as it should be. We will finally conclude control agreements for both financed companies. Let’s finally do something that will move us forward. Let’s communicate … Let’s get ATB at least to license … so we can finally start making money with this company. I apologise for the content of this email but I couldn’t keep it in my head any more.’
‘Simply, the parties wished to formalise the joint ventures, and continued to work on them exactly as before the signature of the Contracts.’
‘There was never an understanding or agreement that Bancibo would have a unilateral ability to require Glocin to pay all operational costs of the subsidiary companies (whether reasonable or not) or for them to charge in excess of those necessary operational costs.’
‘At the commencement of the project it was understood that the maintenance costs would be higher but as the project progressed these costs would reduce as the subsidiary companies became increasingly self -dependent.’
‘If this was the case then there would be no need for the subsequently executed Contracts to include an express term that such costs required mutual agreement between the parties’
‘Completion of these steps would have resulted in either (1) identifying the element of the Invoices that reflected the reasonable expenses sufficient to the maintenance of the subsidiaries which could have been agreed to by Glocin; or (2) sufficient evidence being provided to enable Glocin to agree the costs as provided if they were indeed accurate.’
‘As a legal professional in such situation, I expect more details on how consent was given by the Investor and also more proofs of this declaration shall be presented’
‘… one of the criteria that applies when interpreting a legal act is the subsequent conduct of the parties. Under this criterion, any conduct or behaviour of the parties following the conclusion of the contract from which the meaning of the contractual provisions can be inferred may be taken into account … Repeated payments according to the previous invoices can be viewed as a subsequent conduct. However, the Article 3.2 of the contract clearly states that the amount of the contribution shall be determined by the parties by mutual agreement according to the current operational needs of the Subsidiary. From this provision it is clear that the contributions will be individual, according to the current situation, and will not be in the form of beforehand fixed-price amounts for an indefinite period of time. Therefore, the contract requires an agreement between the parties in case of each contribution or clear agreement of repeated costs for a definitive period of time. However, the previous payments do not give a precedent that there is no need for an agreement for future contributions and that the Investor (Glocin) has given its implied consent to any future payments. If so, it would constitute an absurd conclusion that the entrepreneur (Bancibo CZ) can charge the Investor (Glocin) with any amounts without the possibility of control by the other party. If Bancibo CZ claims that there was an implied agreement made by the parties within informal communication on contribution payment, it has to be evaluated under Section 1756 of the Civil Code: ‘If a contract is not concluded in words, the will to stipulate its elements must be obvious from the circumstances; in doing so, account is taken of the conduct of the parties as well as issued price lists, public offers and other documents’
‘it is a matter of de facto conduct of the Parties, how they understood contractual rules in this respect, and/or how they implemented them, provided, that one may not conclude that the only possible interpretation was particular proof of costs … At the same time, it could be recognised that it would be in line with the Contracts and general Article 3.2 for the Contracting Parties to have establish[ed] the practice of explaining the costs reimbursed at a specific request, or for establishing the practice of specific costs proof or explanation between the Parties - however, but these both are issues of factual findings’
‘The specific legal title to the obligation to provide a contribution, i.e. to bear the costs, is thus a contribution agreement, for which the Contracts do not specify anything else in terms of performance. It was not agreed that the amount or effectiveness of the costs be required for rise of the claim, but it was agreed that it must be related to the operation of the Company or the provision of a management team. As I stated above, the specific interpretation, resp. compliance with Article 3.2 of the Contracts is a matter of the actual conduct of the Parties and not any specific regulatory agreement of the Parties in the Contracts’
‘there is no requirement in the Contracts to prove the costs or their effectiveness, because the Parties have not agreed on anything in this respect, i.e. the general legal rules and established practice of the Parties apply … The Contracts themselves do not provide for any requirements for proving costs, only their material connection with the provision of the management team and the operation of the Company is assumed, i.e. their non-documentation cannot per se be understood as a delay on the part of the creditor under Section 1968 of the Civil Code, and thus neither as an obstacle preventing satisfaction of the debt on the part of the debtor. If it were clear from the conduct and actions of the Parties that prior checking had been or should have been applied, that partial costs had been documented from the outset, in other words, if there were practices of the Parties to implement this, the subsequent behaviour of the Parties could be understood as interpretation of Article 3.2 of the Contracts and if the Entrepreneur did not document them, he would not provide the necessary cooperation and it would be possible to apply Section 1968 of the Civil Code’
‘it should be proved by the entrepreneur (Bancibo CZ) that he issued the Invoices in respect with clause 3.2 and the costs are duly evidenced esp. in accounts of the Subsidiary.’
‘(1) A person who is to perform in advance in case of a mutual performance may withhold such a performance until the mutual performance is provided or insured to him, but only if the performance of the other party is jeopardised by circumstances which occurred in respect of the other party of which he was not and should not have been aware at the conclusion of the contract’
‘… in the situation when the investor asked for more details of the requested contribution and he probably had not received them then section 1975 of the Civil Code could apply: A creditor is in default if he fails to accept a properly offered performance or fails to provide the debtor with the assistance necessary to discharge the debt. If this situation could be qualified as a default of the creditor that discredits a performance of debtor obligation due to absence of creditors assistance, then the Entrepreneur’s default excludes the Investor’s default.’
‘I have seen a formal request of the Investor (Glocin) in letter written to entrepreneur (Bancibo CZ) as of November 11, 2021 to provide more detailed information and documents related to the Invoices. The ongoing Bancibo CZ reply did not provide closer insight whether the Invoices with attached table set a necessary amount of contribution to operational needs of the Subsidiary. I cannot judge whether the Invoices are issued duly. This must be determined at trial where the Entrepreneur (Banzibo CZ) should clearly present his statement about the circumstance related to the cooperation of the parties in this matter and also he should provide evidence related to his statements.’
‘there are many reasonable doubts that have to be cleared by the entrepreneur (Bancibo CZ) to prove the existence of his claims raised from the Invoices and to prove the default of the Investor (Glocin). In this moment the claims are not clearly reasoned and proved, therefore a wide consideration of evidence should be carried out because the available documents cannot provide simply the answer as to whether the claims raised by Bancibo are justified. From my perspective, if Bancibo CZ cannot provide clear statement and proofs that the contribution was necessary to cover operational need of Subsidiary, it raises first significant doubt. The second doubt raises the absence of evidence (documents, electronic communication or witness testimony) proving the existence of Glocin’s consent to the amount of the contribution as clause 3.2 clearly requires agreement between the parties. If the doubt will not be settled the claim could be qualified as raised from ineffective clause 3.2 of the Contract. Also application of section 1912 of the Civil Code could be more likely than not. The objective of Bancibo CZ that the previous invoices were duly paid so Glocin approved the amount of the contribution for ‘pro futuro’ with made payments has to be supported by wider variety of proofs otherwise it stands alone against the grammatical and systemically interpretation of the Contract’