शेयरधारक सम्झौता: के समावेश गर्ने र यसलाई कसरी लागू गरिन्छ

A shareholders’ agreement (aandeelhoudersovereenkomst) is a private contract between the shareholders of a company, sometimes with the company itself as a party, that regulates matters the articles of association (statuten) do not cover. Dutch law does not require one, and it binds only those who signed it: provisions that must bind every future shareholder or the company itself belong in the articles, which Article 2:192 of the Dutch Civil Code (BW) allows for a private limited company (BV).

धाराहरू र शेयरधारकहरूको सम्झौतामा के भिन्नता छ?

The articles of association are laid down in a notarial deed, filed with the Business Register (Handelsregister) of the Chamber of Commerce (KVK) and bind the company and every shareholder. A shareholders’ agreement is private and binds only its parties; it can only be changed with the consent of all of them.

A new shareholder is bound by the articles automatically, but by the agreement only if he accedes to it. That is why an accession obligation (toetredingsverplichting) is one of the most important clauses. Since the BV law was made more flexible on 1 October 2012, much of what used to be in a shareholders’ agreement can also be built into the articles. Under Article 2:192(1) BW the articles may attach contractual obligations to shareholding, set requirements for shareholders and oblige a shareholder to offer and transfer his shares in specified cases.

Under Article 2:192(1) BW such an obligation cannot be imposed on a shareholder against his will. Adding these clauses to the articles therefore needs the consent of each shareholder concerned, which is easiest to arrange when the company is set up or when a new investor joins.

What should a shareholders’ agreement contain?

The content depends on the company and on the balance between the shareholders. The clauses below appear in most Dutch agreements.

• स्थानान्तरण प्रतिबन्धहरू: pre-emption rights and consent requirements, in addition to the share transfer rules in the articles.
• Drag-along and tag-along: a majority can oblige the minority to sell on the same terms; a minority can join a sale by the majority.
• Good leaver and bad leaver: a shareholder who leaves the company must offer his shares, at a price that depends on the reason for leaving.
• मूल्यांकन: how the price is set, for example by an independent expert or a fixed formula.
• Reserved matters: decisions that need the consent of all shareholders or a qualified majority.
• Dividend policy, information rights, non-competition and confidentiality.
• गतिरोध: a way out if the shareholders cannot agree, such as mediation followed by a buy-sell clause.

How do share transfer restrictions work in a BV?

Unless the articles provide otherwise, Article 2:195(1) BW requires a shareholder who wants to sell to first offer his shares to the other shareholders pro rata. If he wishes, he receives a price equal to the value set by one or more independent experts.

If it is established that not all shares will be bought for cash, the shareholder may transfer them freely within three months. Under Article 2:195(3) BW the articles may exclude transferability for a fixed period, with the consent of all holders of the shares concerned. Under Article 2:195(5) BW a transfer restriction does not apply if it makes a transfer impossible or extremely difficult, unless it results from such an exclusion or from a price clause the shareholder accepted.

How are dividends paid out?

Under Article 2:216(1) BW the general meeting decides on distributions only to the extent that equity exceeds the reserves required by law or the articles. A shareholders’ agreement can set a dividend policy, but it cannot remove this rule.

Under Article 2:216(2) BW a resolution to distribute has no effect until the board approves it. The board may only refuse if it knows or should foresee that the company would be unable to continue paying its due debts after the distribution. Directors who approve a distribution despite this risk can be personally liable to the company (Article 2:216(3) BW).

यदि कुनै शेयरधारकले सम्झौता उल्लङ्घन गर्छ भने के हुन्छ?

A breach of a shareholders’ agreement is a breach of contract. The other parties can claim performance, damages or, where agreed, a penalty; a resolution adopted in breach of a voting agreement is not automatically invalid under company law. If all shareholders (and possibly the company) are bound by the agreement, however, a court may annul the resolution under Article 2:15 BW for breach of reasonableness and fairness (Article 2:8 BW), as happened in the Vanka-Kawat case (ECLI:NL:RBSGR:2012:BX5922).

That is why a well-drafted penalty clause (boetebeding) matters. Under Article 6:91 BW a penalty clause obliges the defaulting party to pay a sum of money, whether as compensation or as an incentive to comply. Under Article 6:94(1) BW the court may reduce the penalty if fairness clearly requires it, but not below the statutory damages. In urgent cases you can ask the preliminary relief judge (voorzieningenrechter) in summary proceedings (kort geding) to order compliance, for example to vote in line with the agreement, with a penalty payment (dwangsom).

The agreement can provide for arbitration, for example at the Netherlands Arbitration Institute (NAI), or for mediation first. Provisions that must also bind the company, such as obligations to offer shares, are more effective in the articles, because a transfer contrary to a restriction in the articles is invalid (Article 2:195(4) BW).

What if shareholders reach a deadlock?

If the agreement contains no workable deadlock clause, the statutory dispute resolution procedure (geschillenregeling) of Articles 2:336 and following BW applies. Since 1 January 2025 these requests are filed directly with the Enterprise Chamber (Ondernemingskamer) of the Amsterdam पुनरावेदन अदालत।

Under Article 2:336a BW shareholders who together hold at least one third of the issued capital can ask the Enterprise Chamber to order a shareholder whose conduct harms the company’s interests to transfer his shares (exclusion, uitstoting). Under Article 2:343 BW a shareholder whose rights or interests are harmed by fellow shareholders to such an extent that continuing cannot reasonably be expected of him can ask for an order that they take over his shares (exit, uittreding). Under Article 2:337 BW the articles or an agreement may submit these disputes to arbitration, but cannot make a share transfer impossible or extremely difficult.

बहुमत शेयरधारकको रूपमा तपाईंले के जाँच गर्नुपर्छ?

• Whether a drag-along clause lets you sell 100% of the shares to a buyer.
• Whether the reserved matters leave enough room to run the company without a minority veto on day-to-day decisions.
• Whether good leaver and bad leaver clauses apply to shareholders who also work for the company.
• Whether the non-competition clause is limited in time and area.
• Whether every new shareholder must accede to the agreement.

अल्पसंख्यक शेयरधारकको रूपमा तपाईंले के जाँच गर्नुपर्छ?

• Whether you have a tag-along right if the majority sells.
• Which decisions need your consent, such as issuing new shares or amending the articles.
• Whether you receive annual accounts and interim figures in time.
• How your shares are valued if you leave or are forced to sell.
• Whether a deadlock clause or arbitration clause gives you a realistic way out.
• Whether the dividend policy fits your expectations, given the distribution test of Article 2:216 BW.

शेयरधारकहरूको सम्झौताको साथ हामी तपाईंको लागि के गर्न सक्छौं?

हाम्रो कर्पोरेट वकिल draft, review and enforce shareholders’ agreements for Dutch and international clients.

• We draft the shareholders’ agreement and align it with the articles of association.
• We decide with you which provisions belong in the articles under Article 2:192 BW and which in the agreement.
• We review an existing agreement before a new investor joins or a shareholder leaves.
• We draft the valuation, leaver and deadlock clauses.
• We conduct summary proceedings or arbitration to enforce the agreement.
• We file or defend a request for exclusion or exit with the Enterprise Chamber.

सारांश

• A shareholders’ agreement is a private contract that binds only its parties; the articles bind the company and every shareholder.
• Under Article 2:192 BW obligations can be included in the articles of a BV, but not against a shareholder’s will.
• Key clauses: transfer restrictions, drag-along and tag-along, leaver clauses, valuation, reserved matters and deadlock.
• A breach is a breach of contract; a penalty clause (Article 6:91 BW) makes enforcement easier.
• Without a deadlock clause, the dispute resolution procedure at the Enterprise Chamber applies (Articles 2:336a and 2:343 BW).

बारम्बार सोधिने प्रश्नहरू