Uitspraken

The proceedings to date are listed in the interim judgment dated 31 March 2025 (the ‘Interim Judgment’, publication number ECLI:NL:RBAMS:2025:2288). In this judgment the Court ordered claimants to give notice to Bettor Capital HoldCo I-A, LLC (Seller VI) to appear in these proceedings pursuant to Article 118 Dutch Code of Civil Procedure (DCCP).

On 3 April 2025, the claimants submitted a notice for Seller VI to appear in eNCC.

Seller VI entered an appearance in eNCC on 4 April 2025, and submitted a statement indicating that it:

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  fully and irrevocably supports the claims and factual representations as submitted by the Sellers,

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  waives its right to be heard at a second hearing,

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  wishes to join the proceedings as additional claimant on the Sellers’ side.

The Court allowed the claimants and Sega Sammy to comment on this statement.

By letters dated 8 April 2025, the claimants and Sega Sammy responded to Seller VI’s statement:

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  the claimants support Seller VI’s wish to join the proceedings on the claimants’ side,

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  Sega Sammy did not make any comments.

Judgment was originally set for 10 April 2025, but due to the procedural matters referred to above judgment was deferred by one day to today.

The Sellers are the shareholders of Stakelogic B.V. (“Stakelogic”), a Dutch developer and provider of online casino games and gaming solutions.

Purchase Price components; Completion Accounts mechanism

Conduct of business

Completion Date

Liability

By letter dated 17 February 2025, Triple Bells communicated to Sega Sammy that the conditions precedent under the SPA had been fulfilled and requested Sega Sammy’s cooperation in closing the transaction on the Completion Date which, in accordance with Clause 6.1.1(i), should take place on 1 March 2025.

On 18 February 2025, the Purchaser declined Triple Bells’ request.

On 25 March 2025, Sega Sammy served a writ of summons on Triple Bells seeking the NCC District Court to declare that Triple Bells breached its obligations under the SPA and to rescind the SPA as a result of these breaches.

In these summary proceedings, the Sellers’s aim is for the Purchaser and the Guarantor to perform their obligations under the SPA and to close the transaction. More specifically, the claims - as amended, see the Interim Judgment - are presently as follows:

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  i) to order the Purchaser to perform all of its obligations under the SPA;

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  ii) to order the Purchaser to perform all of its obligations under Clauses 6.1, 6.1.1, 6.1.2 of the SPA and by taking all steps necessary to effectuate all steps of Clause 6.2 which contains obligations for the Purchaser (Clauses 6.2(i), 6.2(ii), and 6.2(v) of the SPA);

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  iii) to order the Purchaser to perform all of its obligations under the SPA to enable the transfer of the Shares, including by signing all documentation as may be required by the SPA, as well as by transferring the Completion Amount to the Notary Bank Account (as defined in the SPA), all within 3 days after the date of service of the judgment or, alternatively, within a term deemed fair by the Court in accordance with the proper administration of justice;

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  iv) to order the Purchaser to perform all of its obligations under Clause 6.2(iii) of the SPA;

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  v) to order the Guarantor to perform its obligations under the SPA, by taking all steps necessary to effectuate the transfer of the Shares to the Purchaser, including by signing all documentation as may be required by the SPA, as well as by taking all steps necessary for the Purchaser to perform all of its obligations under Clause 6.2(iii) of the SPA;

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  vi) to order the Guarantor to perform all of its own obligations under Clause 6.2(iii) of the SPA, in case Purchaser fails to do so;

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  vii) to order the Purchaser to pay a direct penalty of EUR 140,000,000 if it does not fully comply with the order demanded under (iv);

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  viii) to order the Guarantor to pay a direct penalty of EUR 140,000,000 if it does not fully comply with the order demanded under (v) and (vi);

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  ix) to order the Purchaser to pay a penalty of EUR 10,000,000 for each day it does not fully comply with the orders demanded under (ii) and (iii), with a maximum of EUR 130,000,000;

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  x) to order the Purchaser and the Guarantor to pay the costs of these proceedings increased by post-judgment costs and statutory interest.

In the Interim Judgment the Court already ruled on the jurisdiction of the Court, the applicable law, and the amendment of the claims, so it will not repeat these rulings here.

Sega Sammy raised several procedural issues which, in its opinion, should result in the Court declaring Triple Bells inadmissible in its claims and/or denying Triple Bells’ claims, because:

1. one of the Sellers under the Agreement (Bettor Capital HoldCo I-A, LLC, “Seller VI”) was not amongst the claimants initiating these proceedings (exceptio plurium litis consortium),

2. Triple Bells’ claims are too vague,

3. the dispute is not suitable for summary proceedings, and

4. the Guarantor, Sega Sammy Holdings Inc., has been summoned without prior default notice (in Dutch: rauwelijks gedagvaard)

The Court addressed the first issue in the Interim Judgment. Since (a) the claimants complied with the order in the Interim Judgment to give notice to Seller VI to appear, (b) Seller VI entered an appearance in these proceedings on 4 April 2024, and indicated that it wishes to join the proceedings without further additional conditions and/or requirements, (c) the claimants support Seller VI joining on their side, and (d) Sega Sammy did not comment on Seller VI joining the proceedings, the Court allows Seller VI to be joined in these proceedings on the claimants’ side.

The Court rejects Sega Sammy’s remaining procedural defences for the following reasons:

The standard in summary proceedings (Article 254 DCCP) is whether:

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  the matter is urgent, which means that the claimant cannot be expected to await the outcome of (potential) main proceedings,

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  the claimant is likely to succeed in (potential) main proceedings, and

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  the immediate measure is appropriate, given the parties' mutual interests.

This dispute is about a share purchase agreement. Triple Bells argues that Sega Sammy is obliged to perform the actions needed for completion of the transaction contemplated under the SPA (“Completion”), as all of the conditions precedent under Clause 4.1 of the SPA have been satisfied.

Sega Sammy’s defence is twofold:

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  i) the condition precedent regarding the permission by regulatory authorities for performance of the SPA (the “Regulatory Condition”) has not been fulfilled,

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  ii) Triple Bells breached certain pre-completion undertakings, which allows Sega Sammy to suspend any obligations it may have under the SPA, pending the main proceedings, that have been initiated by way of the writ of summons dated 25 March 2025 (see para 2.7), where it seeks to rescind (ontbinden) the SPA. The basis for its claim for rescission is that Triple Bells failed to perform its obligations:

The Court notes that the parties disagree on how the SPA should be construed. The construction of the SPA is governed by Dutch law (Clause 20.1 SPA). The standard under Dutch law is that construction of a contract is not solely guided by a text-based interpretation of the provisions of the contract, but also by (a) what meaning a reasonable person of the same kind as the parties would have given to the language of these provisions in the same circumstances, and (b) what a reasonable person of the same kind as the parties would expect the adverse party to do under these provisions in the same circumstances. This enquiry may focus on matters such as who the parties are and the legal expertise that similarly situated parties may reasonably be expected to have (Haviltex).2 Additional guidance clarifies that certain circumstances (such as the nature of the transaction, the size of the contract and the amount of detail, the way the contract was concluded, and the existence of an entire agreement clause) may make it appropriate for the court, as a rule, to give decisive weight to the most obvious text-based meaning of the provisions of the contract, in conjunction with the other provisions of the contract which may be relevant for its interpretation.3

The Court considers these circumstances:

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  the parties are professional parties who instructed professional advisors to assist them in the acquisition of Stakelogic and in the drafting of the SPA,

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  the SPA is of considerable size (45 pages, excluding the annexes, which consist of more than 150 pages) and sets out the parties’ obligations in detail,

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  the SPA contains an entire agreement clause (Clause 19.12).

In light of these circumstances, the Court gives decisive weight to the most obvious text-based meaning of the provisions of the SPA.

For the Regulatory Condition under Clause 4.1(i)(a) SPA to be satisfied:

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  all obligatory notifications and filings to the Regulatory Authorities pursuant to the applicable regulatory laws must have been made,

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  where applicable: all waiting periods must have expired, and

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  the competent Regulatory Authorities, to the extent required prior to Completion, must have rendered a decision permitting the performance of this Agreement under the relevant regulatory laws.

Contrary to what Sega Sammy states, the Regulatory Condition does not in any way require Triple Bells to request the authorities to also authorise the new owner of Stakelogic to commence or continue gaming operations in jurisdictions where Stakelogic is active. The condition solely pertains to obtaining permission for the takeover of Stakelogic.

Sega Sammy does not dispute, nor has it provided sufficient substantiation to the contrary, that all relevant regulatory authorities have permitted the completion of the transaction under the relevant regulatory laws. It argues that the notifications and filings to the regulatory authorities usually also contain confirmations by the notifying party (Triple Bells) that it acts in compliance with applicable laws and regulations. By infringing regulatory laws on online gambling in Japan and Türkiye the notifications and filings to the regulatory authorities were not filed in a complete and correct manner.

The purpose of including conditions precedent in a share purchase agreement is twofold:

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  to safeguard that the most fundamental conditions for the transaction have been satisfied before the transaction is completed,

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  to have deal certainty if and when these conditions have been satisfied: satisfaction of the conditions precedent triggers the completion of the transaction as per Clause 6.1, which automatically determines what the date for Completion will be.

In light of this contractual framework, the conditions precedent in the SPA have been drafted in such a way that it is possible to objectively ascertain whether or not the conditions have been met, and if so, at what moment in time. This means that the Regulatory Condition is satisfied if and when (i) notifications and filings to the regulatory authorities have been made (which Triple Bells has done) and (ii) the regulatory authorities have decided to permit performance of the SPA (which is also the case). Ascertaining whether or not Stakelogic infringed any regulatory laws would require an in-depth research into Stakelogic’s actions and activities in all relevant jurisdictions. This is incompatible with the hard and fast rules given in the SPA’s provisions on conditions precedent and Completion.

In light of the fact that Sega Sammy did not sufficiently dispute that the other conditions precedent were also satisfied, the Court does not consider it likely that a court in any main proceedings would rule that the conditions precedent have not been fulfilled. This means that Sega Sammy was obliged to complete the transaction no later than 1 March 2025 (extended to 3 March 2025 by Triple Bells, because 1 March was in a weekend).

The next question the court would have to deal with in (potential) main proceedings is whether Triple Bells breached certain pre-completion undertakings, and if so, whether Sega Sammy would have the right to rescind the SPA on this basis (and suspend its obligations pending a decision on its claim for rescission).

The Court will first analyse the second issue, as Triple Bells states that Sega Sammy is barred from rescinding the SPA, even in case of breach of pre-completion undertakings (Clause 19.9).

The most obvious text-based meaning of this provision is that no rescission of the SPA is possible, either in-court or out-of-court. This follows not only from the heading of this clause, but also, and more importantly from its contents. The clause explicitly refers to Articles 6:265 and 6:270 of the Dutch Civil Code (DCC) which deal with this matter. Article 6:265 DCC sets the standard for (partial or full) rescission of an agreement, whereas Article 6:270 DCC states what the consequences are of a partial rescission. No reference is made to Articles 6:267(1) or (2) DCC which provide for the specific ways in which rescission can be sought: by a written declaration to the counterparty (paragraph 1) or by a court decision (paragraph 2). If Clause 19.9 was intended to cover only an out-of-court rescission, a reasonable person would have expected the clause to include a reference to Article 6:267(1) DCC. However, such reference is absent.

The fact that the second sentence of Clause 19.9 explicitly mentions the “competent court” and the first sentence does not, is immaterial. The second sentence only pertains to amendment of the agreement, not to rescission.

The reference to other Articles in the DCC is insufficient to alert a reasonable person to a subtle distinction between in-court and out-of-court options to amend, annul or rescind the SPA:

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  Article 6:228 DCC does not state the way in which an agreement may be annulled, but only sets the standard for seeking annulment. Another provision in the DCC determines how annulment can be sought: in-court or out-of-court (Article 3:49 DCC).

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  Article 6:258 DCC sets the standard for amendment of the agreement for unforeseen circumstances, and determines that only a court has the power to amend on this basis.

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  Article 6:230 DCC determines only the way in which a court may amend an agreement instead of annulling it on the basis of Article 6:228 DCC.

The fact that amendment of a contract pursuant to Articles 6:258 and 230 DCC can only be done by a court confirms why Clause 19.9 specifically mentions the “competent court” in the second sentence of this clause.

The Court – on the basis of the preliminary analysis made above – finds it likely that a court dealing with the main proceedings would construe Clause 19.9 SPA to mean that both seeking in-court and out-of-court rescission is barred. This means that – even if Triple Bells breached certain pre-completion undertakings – Sega Sammy must abide by its obligation under the SPA to complete the transaction. Any breaches can only be remedied by an action for damages (Clause 9.2 of the SPA).

Extraordinary circumstances could make relying on the waiver in Clause 19.9 SPA unacceptable in light of the principles of reasonableness and fairness (Article 6:248(2) DCC), which could persuade the Court to decide differently as to Sega Sammy’s right of rescission.

Sega Sammy argues that by completing the transaction it runs the risk of losing (or suspension of) the gambling licences it now holds in various jurisdictions, such as the United States of America, and even be exposed to criminal charges. This is because Stakelogic – according to Sega Sammy – allows users from Japan and Türkiye (where online gambling is strictly prohibited) to access and play Stakelogic gambling games.

The Court agrees with Sega Sammy that if the transaction (i.e. making Stakelogic an intricate part of its operations) would have such a serious impact on the licences Sega Sammy now holds and could even result in criminal charges brought against Stakelogic and/or Sega Sammy itself, would qualify as an extraordinary circumstance as mentioned above. No company can be forced to take such risks.

However, the Court does not find that it is likely that these risks will materialise. The reasons for this finding are as follows.

 Sega Sammy performed ‘trial runs’ in March 2025 to show that it was possible to play Stakelogic gambling games from Japan. However, the BDO report submitted by Triple Bells4 raises serious concerns as to whether or not a VPN connection was used during the trial runs (by the player in Japan or somewhere along the way to the Stakelogic server). The Court is aware that the report was drafted on the instructions of Triple Bells, but this does not render the report useless. The expert engaged by Sega Sammy in response to the BDO report5 was not able to state with confidence that no VPN was used.67 The Court will therefore follow the BDO report where it confirms that geo-blocking for Japan was in place at the time of the trial runs, and that the player of the specific sessions were localised in the Stakelogic database from (virtually) the United States (instead of Japan). This is confirmed by the fact that, in BDO’s presence, Stakelogic’s Chief Technical Officer tried to access the games through a VPN connection with location set at (virtually) Japan and the games did not load. BDO states in its report that technically it could be possible that Stakelogic changed the IP addresses for both sessions to a VPN IP address outside Japan, but:

 Sega Sammy did not make it sufficiently plausible that Stakelogic games were playable in Japan for real money. During the trial runs in March 2025, Sega Sammy did not attempt to play Stakelogic games for money, but only in demo mode. Sega Sammy did not sufficiently dispute Triple Bells’ assertion that no jurisdiction in the world prohibits playing online gambling games in demo mode. This is confirmed by the SPA, as the definition of “Restricted Territories List” only pertains to Stakelogic games to be played “for real money”. The legal opinion on Japanese law provided by Sega Sammy also relates to gambling for money only.8

 Even if Stakelogic games could be played for money by persons in Japan or Türkiye, Stakelogic is not the entity directly responsible. Stakelogic is not the company running the website which provided access to its games, but only a content provider. Therefore, the risk that it will face criminal charges is negligible. This is confirmed by the legal opinions on Turkish and Japanese law.9

 Stakelogic uses the services of a geo-blocking service provider, which aims at preventing access to its games from jurisdictions where online gambling is prohibited. This would likely make it very complicated for authorities to prove intent to violate gambling laws and bring charges against Stakelogic (and against Sega Sammy as Stakelogic’s parent company). No evidence was presented that regulatory authorities of countries which prohibit online gambling actually require specific additional technical measures (besides geo-blocking) to prevent online gambling.10

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  Since the trial runs in March 2025 the website which provided access to Stakelogic games in Japan ceased to offer access to these games, even in demo mode. Sega Sammy did not present any evidence on other websites in Japan that still allow for Stakelogic games to be played – without the use of a VPN connection – by a player located in Japan.

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  If Sega Sammy after completing the transfer of Shares wishes to minimise any risk that persons in Japan, Türkiye or any other restricted territory are able to play Stakelogic games using a VPN connection, it may impose a limitation of accessing these games by VPN, as apparently (e.g.) Netflix has done.11

The other alleged breaches of pre-completion undertakings referred to in para. 4.8 are not severe enough to warrant barring Triple Bells from relying on the waiver in Clause 19.9. Triple Bells has provided a plausible explanation on the release of the CCO, made it sufficiently likely that the personnel changes only had minimal impact on Stakelogic’s business, and that the GAN project was initiated by Sega Sammy. This is confirmed by Sega Sammy’s position which is that the personnel changes and lack of formal approval for the GAN project did not affect Sega Sammy’s willingness to proceed with the transaction.12 This only changed because of the alleged offering of Stakelogic games in restricted territories13 (which was ‘a serious paradigm shift’, according to Sega Sammy).14

From the above it follows that Stakelogic’s reliance on the waiver in Clause 19.9 SPA is not unacceptable in light of the principles of reasonableness and fairness. This means that it is unlikely that the court dealing with the main proceedings will rescind the SPA.

In summary proceedings, the court must assess whether the measure is appropriate in light of the parties’ interests. The Court is aware that it would be difficult to reverse the transaction if the Court were to oblige Sega Sammy to complete it. And there still is a risk, however small, that regulatory authorities would rule differently on Stakelogic’s conduct than this Court has done.

However, Triple Bells’ interests outweigh Sega Sammy’s interests in awaiting the outcome of the main proceedings. Because of the already delayed completion of the transaction, Stakelogic has been running out of cash, which it was able to overcome only by way of additional funding. And also Stakelogic has started to integrate its services with Sega Sammy and is continuing to do so.

Therefore, the Court will order Sega Sammy to complete the transaction. It will do so by allowing claims iii), v) and vi). These claims are clear enough for Sega Sammy to know what to do, especially as the SPA provides clear guidance on this (Clause 6.2). However, the Court will allow Sega Sammy more time to comply with the orders. The Court will impose a penalty on non-compliance with the orders,15 but it will reduce the requested penalties as indicated in the conclusion and order below. The remaining claims are too broad and are not needed to obtain the required result, and therefore they will be denied.

Sega Sammy is unsuccessful in these proceedings and will therefore be ordered to pay the costs (including post-judgment costs), with statutory interest.

orders the Purchaser to perform all of its obligations under the SPA to enable the transfer of the Shares, including by signing all documentation as may be required by the SPA, as well as by transferring the Completion Amount to the Notary Bank Account (as defined in the SPA), all within two weeks after the date of service of this judgment,

orders the Guarantor to perform its obligations under the SPA by taking all steps necessary to effectuate the transfer of the Shares to Purchaser, including by signing all documentation as may be required by the SPA, as well as by taking all steps necessary for Purchaser to perform all of its obligations under Clause 6.2(iii) of the SPA,

orders Guarantor to perform all of its own obligations under Clause 6.2(iii) of the SPA, in case Purchaser fails to do so,

orders the Purchaser and the Guarantor to pay the costs of the proceedings, quantified up to this judgment at EUR 14,200.50 (EUR 4,600 in lawyer’s fees, EUR 119.50 for serving the writ of summons and EUR 9,481 in court fees), to be increased by the statutory interest as referred to in Article 6:119 DCC as from the fifteenth day after the date of this judgment,

orders the Purchaser and the Guarantor to pay the post-judgment costs, quantified at EUR 178 in case service of the judgment is not needed, and EUR 270 in case service is needed, to be paid within fourteen days after the date of the judgment, to be increased by the statutory interest as referred to in Article 6:119 DCC as from the fifteenth days after the date of this judgment,

declares this judgment enforceable notwithstanding appeal.

dismisses all other claims.