“There are various conditions precedent that were agreed between AAQUA and our tactical partners and we are on track to deliver / satisfy these in early Q2 ’21. That would result in the tactical partners equity subscriptions to go unconditional and thus complete shortly afterwards. In total the amount to be raised in that tactical round is€960 mn at PPS€1,920 .”
“Not sure I get the point. Being granted a free Option where the Option holder has the right (not the obligation) to exercise for a 60 day period after the most valuable company in the world has just invested£500m + at double the Option price point? If that ever in my life was offered to me, I would literally bite the persons’ hand off”
“The one thing we will want access to is the Aaqua “data room” (or equivalent); in particular the Apple and LVMH documentation.”
“includes the latest three way inputs and will continue to iterate over the next several weeks until we definitively conclude.”
“this document is still a ‘work in progress… in my view, the ‘valuable’ details are missing (e.g. collaboration framework, governance and the specifics of the content to produce). A lot, almost too much is still open for deliberation. Additional, my initial impression is that it feels ‘light’ for a contract with Apple, not sure whether Apple has any input in this, can we check?”
“Also worth noting that, at this stage, Apple’s ability to invest in AAQUA is an option rather than something set in stone. Even if the 250m euro round equity round closes, we have little to no visibility as to how likely or interested they are to exercise it.”
“Any chance we could do a call at 08.00am tomorrow? I am back-to-back after that and I would really like the three of us to understand what this “contract” means.”
“Hi Nick super well … Dealing with this now. Basically [Apple] want to accelerate first closing including 200k AAQUA shares at€1,920 and have the right to subscribe for a further 100k at 7,192 [sic] per AAQUA share which becomes a 30 day funding obligation if AAQUA raises a similar amount from a third party or AAQUA reaches for 30 days a total of 100m AAM and RAM (combined). It is the intention that we meet again for several days week commencing 8 March and there should be little reason why we can’t close 10-14 days thereafter ie before end of March. We have our MVS scheduled for 23 March and would be great having the public announcement the following day. As a result I will probably stay Stateside until closing, unless I can get to Singapore late next week without quarantine. Speak soon!”
“How was the visit yesterday? All still on track? Any issues? Mr Bonnier: All super super good just execution. Mr Candy: Are Apple 100% committed? Mr Bonnier: I am really sorry Nick they are 192% committed for€1.1bn Mr Bonnier: So will focus purely on execution and for that my team and I need to just be dealing with that and 0 noise because the rest is now a foregone conclusion.”
“55. (1) If there is a debarring order in place, its effect depends in the first instance upon its terms. One must consider the terms of the debarring order in order to determine what it debars the relevant party from doing. And as I have already indicated there is no ambiguity in that respect in the present case. The December 2018 order, as accepted, debars the defendant from defending the account proceedings. (2) Where an order debars a defendant from defending a particular proceedings, this should mean what it says: At the trial of the relevant proceedings the defendant should not be permitted to participate in the normal way. That is to say by doing such things as adducing evidence, cross-examining witnesses on the other side, or making submissions. (3) The case law does appear to demonstrate the existence of a residual discretion or trial management power to permit a debarred defendant to take some part in the trial of the relevant proceedings. It seems to me that this discretion is a narrow one. In particular circumstances I can see that the exercise of this discretion might include the permitting of some limited submissions or the permitting of some cross-examination. More generally, it strikes me that a debarred defendant should normally be able to address the court on the form of order to be made after the substantive decision on the trial has been made, and in relation to the pointing out of any errors in the relevant judgment. It also strikes me, but I say this on a strictly provisional basis because it is not a matter I am deciding at this stage, that it does strike me that the debarred defendant ought to be able to address the court on the question of the costs of the relevant proceedings. But I repeat that that is not a question which I am deciding in this judgment. (4) The overriding principle however is that debarring orders should mean what they say. The debarred defendant should not normally be permitted to participate in the relevant trial in a way which undermines the debarring order, and permits the defendant to escape the effect of the debarring order. A debarring order is an important sanction available to the court in the exercise of its case management powers, and an important method of ensuring that the court's case management orders are respected. As such, defendants should not normally be allowed to escape from the consequences of a debarring order when the trial of the relevant proceedings takes place. (5) Where a debarring order does have the effect of preventing a defendant from participating in a trial, the position does not then go by default. At the trial the claimant must still demonstrate to the satisfaction of the court that the claimant is entitled to the relief sought in the relevant proceedings. (6) The striking out of the defence does not mean that the court cannot have any regard to that defence. It can still be considered by the court for the purposes of understanding the statements of case in the relevant proceedings as a whole. To adopt the phrase adopted by Tomlinson LJ in the second decision of the Court of Appeal in Thevarajah , "The relevant defence may have left a lasting legacy on the statements of case as a whole". It also appears, by reference to what Sales J is recorded as saying in the second decision in Thevarajah , that looking at the defence for the purposes of understanding the claim can also, in an appropriate case, extend to hearing from counsel for the debarred defendant in order for counsel for the debarred defendant to provide assistance for the benefit of the court in understanding the nature and extent of the relevant claim.”
“161.Article 6 of the Convention requires attention to be addressed to a matter which has always been implicit in cases of this kind, namely that the effect of the court's refusal to grant relief is that the losing party will be deprived of a trial of his defence on the merits. Clearly, as the judge recognized, that is an important factor. But three points must be borne in mind. First, it is open to a party to consent to judgment being given against him without a trial on the merits. In the absence of some special feature (not present here) there is no public policy consideration which forces an unwilling party to undergo a trial if he, being competent to do so, decides against this course. Second, this is not an appeal against the judgments entered against the appellants. The appellants cannot say that those orders were wrongly made. Third, the state can impose restrictions on the right of access to court provided that the restrictions serve a legitimate aim, are proportionate and do not destroy the very essence of the right. Here, the legitimate aim in imposing a sanction is to secure compliance with court orders, which in the instant case were made to ensure the effectiveness of freezing orders. The imposition of a sanction is proportionate if it is reasonably necessary for achieving that aim. The essence of the right of access to court is not destroyed because the litigant has the opportunity to seek relief against the sanctions. The refusal of that relief is Convention-compliant if the same tests are satisfied. The legitimate aim remains the same. Proportionality will be satisfied if the overriding objective is met. The essence of the right will not be destroyed even if refused, since the appellants always had the chance to comply with the court orders and to help progress the case to trial.”
“Mr Bonnier also explained to me that Apple and either LVMH or its principal, Mr Bernard Arnault were intending to invest c.US$1 billion in Aaqua. He explained that he had a personal relationship with Tim Cook who had also committed to invest significant sums.”
“There are various conditions precedent that were agreed between AAQUA and our tactical partners and we are on track to deliver/satisfy these early Q2 ’21. That would result in the tactical partners equity subscriptions to go unconditional and thus complete shortly afterwards. In total the amount to be raised in that tactical round is 960mn euros at PPS€1,920 .”
“I accept that I went too far in some of my late December/early January emails and should have presented a clearer picture in February 2021.”
“with regard to Aaqua’s liquid assets, the primary source of Aaqua’s liquid assets were the shares it held in Audioboom which it had originally purchased on the open market and was then able to sell from time to time during the course of late 2021 and 2022 to meet operational needs.”
“Mr Bonnier and the Aaqua CFO Dennis Van Cotthem both told [him] that to fund the business it was necessary to sell Audioboom shares […] at least once a month.”
“an entity cannot demonstrate that an intangible asset exists that will generate probable future economic benefits. Therefore, this expenditure is recognised as an expense when it is incurred.”
“I found that the AAQUA app was still in a very basic state…The look and feel of AAQUA’s app was obsolete. In my view, this was a direct result of lack of professional product and design input. Given the historic cash expenditure on product development, I found this astonishing. The app was low quality, did not scale and had very little functionality.”
“The involvement of Apple and LVMH as significant equity investors was completely fundamental to any decision by CVS to invest.”
“What was different about this particular investment opportunity was that we were not interested in the underlying technology assets of the Aaqua proposition: rather it was the opportunity to invest at earlier fundraising round, and at a discounted valuation prior to Apple and LVMH subscribing for shares. CVS’ belief that Apple and LVMH were already committed to invest – which was based on a lie from Mr Bonnier – was utterly fundamental to its investment decision.”
“4. Entire Agreement. This Agreement (together with its Annexes and agreements referred to therein) constitutes the entire Agreement between the Parties with respect to the subject matter of this Agreement and supersedes any prior discussions, agreements, representations or warranties.”
“6. Common Understandings. Each of the parties understand and represent that: … (iv) AAQUA has limited operating history and that an investment in the AAQUA Subscription Shares involves material risks. Any financial projections that may have been provided are based upon assumptions of future operating results reasonably developed by AAQUA and are not binding. Any financial projections, therefore, merely represent an estimate by AAQUA of future results that it hopes can be achieved by AAQUA based upon reasonable assumptions as to certain events, many of which are beyond the AAQUA’s control. No assurances or representations can be given that the actual results of the operations will conform to the projected results for any or all of the indicated years. (v) CV has carefully considered and has, to the extent it believes such discussion necessary, discussed with its professional legal, tax and financial advisors, the suitability of investing in the AAQUA Subscription Shares for its particular tax and financial situation, and CV has determined that the AAQUA Subscription Shares is a suitable investment for it. In making its investment decision, CV has relied solely on its own advisors, and not on the advice of AAQUA. (vi): CV has relied on its own due diligence and investigations and has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of AAQUA concerning AAQUA’s business, assets and financial position. CV acknowledges that AAQUA shall not be liable for any representations and warranties other than those appearing in this Agreement.” (iv) AAQUA has limited operating history and that an investment in the AAQUA Subscription Shares involves material risks. Any financial projections that may have been provided are based upon assumptions of future operating results reasonably developed by AAQUA and are not binding. Any financial projections, therefore, merely represent an estimate by AAQUA of future results that it hopes can be achieved by AAQUA based upon reasonable assumptions as to certain events, many of which are beyond the AAQUA’s control. No assurances or representations can be given that the actual results of the operations will conform to the projected results for any or all of the indicated years. (v) CV has carefully considered and has, to the extent it believes such discussion necessary, discussed with its professional legal, tax and financial advisors, the suitability of investing in the AAQUA Subscription Shares for its particular tax and financial situation, and CV has determined that the AAQUA Subscription Shares is a suitable investment for it. In making its investment decision, CV has relied solely on its own advisors, and not on the advice of AAQUA. (vi): CV has relied on its own due diligence and investigations and has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of AAQUA concerning AAQUA’s business, assets and financial position. CV acknowledges that AAQUA shall not be liable for any representations and warranties other than those appearing in this Agreement.”
“…the exclusion of liability for misrepresentation has to be clearly stated. It can be done by clauses which state the parties’ agreement that there have been no representations made; or that there has been no reliance on any representations; or by an express exclusion of liability for misrepresentation. However, save in such contexts, and particularly where the word “representations” takes its place alongside other words expressive of contractual obligation, talk of the parties’ contract superseding such prior agreement will not by itself absolve a party of misrepresentation where its ingredients can be proved.”
“… fraud is a thing apart. This is not a mere slogan. It reflects an old legal rule that fraud unravels all: fraus omnia corrumpit. It also reflects the practical basis of commercial intercourse. Once fraud is proved, ‘it vitiates judgments, contracts and all transactions whatsoever’: Lazarus Estates Ltd v Beasley[1956] 1 QB 702 at 712 per Denning LJ. Parties entering into a commercial contract will no doubt recognise and accept the risk of errors and omissions in the preceding negotiations, even negligent errors and omissions. But each party will assume the honesty and good faith of the other; absent such an assumption they would not deal.”
“There is obvious sense in such a presumption for if the representor did not intend the representee to act on the faith of his statement why did he lie?”
“The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a claimant the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps.”