Einde inhoudsopgave
Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/6.2.5.1
6.2.5.1 Expert Group, preliminary draft, Company Law Committee
mr. dr. P.P. de Vries, datum 03-05-2010
- Datum
03-05-2010
- Auteur
mr. dr. P.P. de Vries
- JCDI
JCDI:ADS408487:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Expertgroep (2004), p. 15.
The preliminary drafts, as well as all responses, are available at: www.minjus.nl/bvrecht.
See Norbruis (2005b); Soerjatin (2006); AlbicherNan Mierlo (2006); Rutten/Gerretsen (2006).
Parliamentary Papers II 2006/07, 31 058, no. 3 (MvT), p. 17; European Parliament and Council Directive 2004/25/EC of 21 April 2004 on takeover bids.
Recommendations of the Company Law Committee (Commissie Vennootschapsrecht) of September 2004, see Parliamentary Papers II 2006/07, 31 058, no. 3 (MvT), p. 18-22. The Company Law Committee was chaired by L. Timmerman and further comprised of M.W. Den Boogert, P.J. Dortmond, P.H.J. Essers, A. Hammerstein, J. Klaassen, P. van Schilfgaarde and G. van Solinge.
See allo De Vries (2006), p. 452. Further on this topic, see § 6.4.2.6.
In 2003, the Ministry of Justice and the Ministry of Economie Affürs developed plans to reform legislation related to the BV in order to make the rules more simple and flexible. For this purpose, an Expert Group was set up, commissioned to formulate recommendations concerning the problem areas and gaps in the law on BVs. This Expert Group was chaired by De Kluiver.
For the reason that proceedings for the settlement of disputes as such do not form part of BV law (as this applies to NVs as well), the Expert Group did not investigate the proceedings in-depth. Nevertheless, the the Group contended that properly functioning and effective proceedings for the settlement of disputes would provide a necessary and final element for a well-balanced BV law that, deservedly, leaves significant scope to the parties. Hence, the Expert Group recommended improvement of the proceedings.1
The legislator followed the suggestion of the Expert Group and fitted the revision of proceedings for the settlement of disputes in a scheme concerning the reform of the law on the BV. In 2005 and 2006, preliminary drafts were published on the amendment of BV law, which were divided into three successive parts. In three rounds, these parts were published for consultation.2 In the second part of the preliminary drafts, proposals were launched for adjustment of proceedings for the settlement of disputes. In the consultation, several institutions and law firms seized the opportunity to share their views on proceedings for the settlement of disputes.3
The legislative history shows that an incentive for a broader review of exit rights regime involves the introduction of an additional exit right by way of the Thirteenth Directive on takeover bids.4 Such an exit right could be included in a part of the DCC that specifically pertains to exit rights. Later on, however, another view was adopted. The exit right pursuant to the Thirteenth Directive was included in Art. 2:359d DCC.
Additionally, the Company Law Committee was consulted. The Company Law Committee proposed the following amendments: @@5
Proceedings for the settlement of disputes should solely contain exit proceedings. The expulsion proceedings should be included in the inquiry proceedings, in which proceedings the company itself would also be involved.
In addition to the existing open standard, the exit proceedings should comprise a number of fixed grounds for exit or, in other words, valuation rights. For instance, one of the fixed grounds could be the valuation right based on the Thirteenth Directive on takeover bids. The latter recommendation is remarkable, as the Committee did not expressly recommend broadening the scope of proceedings for the settlement of disputes to listed NVs, i.e. NVs that do not have a closed character.
Summary proceedings are recommended for the situation that a conflict would only relate to the valuation of the shares, when agreement on the transfer itself is already present. According to the Company Law Committee, inspiration for this recommendation was found in Article 2:251 paragraph 4 NACC.
It should be made possible that a shareholder could also start exit proceedings against the company in the event of a dispute between the shareholder and the company. The company could then be forced to acquire the shares of that shareholder. Together with the expulsion proceedings, this kind of exit proceedings could be transferred to the inquiry proceedings.
Damages to the company should be taken into regard when determining the value of the shares. Still, the rule that shares are valued at the transfer date, i.e. the date that fmal judgment under the proceedings is irrevocable, should remain.
The rule that proceedings are started by summons (and not by application) should be maintained. The exit proceedings should be held in one instance and the OK should be the competent court, being a highly specialized court. In this respect, accelerating the proceedings outweighs the disadvantages of just one instance.
Provided that the recommendation of just one instance is followed, experts on the valuation of the shares should always be appointed.
Additional thresholds, such as those prescribed in the inquiry proceedings, should not be introduced.
The option to declare judgments provisionally enforceable should be introduced. Moreover, the interim option to appeal should be abandoned. Immediate remedies, such as those available under the inquiry proceedings, should not be introduced, as there would be no need for immediate remedies.
The roles regarding the allocation of costs of the proceedings should be maintained. The court could rule that one or more of the parties should provide security for costs of the appointed experts that valuate the shares.
The rule that a shareholder can neither dispose of his shares, nor establish a right of pledge or usufruct on his shares during the proceedings should be maintained.
Contractual regulations regarding the settlement of disputes should be given significant scope. Nonetheless, when an agreement would result in an unacceptable low price for the shares, assessed from a perspective of reasonableness and fürness, the court should have the discretion to reconsider the valuation of the shares.
With respect to amendment 4 of the Company Law Committee, I would like to clarify the following. The exit proceedings of the Netherlands Antilles law are found in Article 2:251 ff. NACC. The Antillean exit proceedings can only be started against the company itself. Art. 2:251 paragraph 4 NACC provides that a shareholder has no locus standi if he received a written, unconditional and irrevocable offer for the purchase of his shares. In the situation of such offer, the purchase price is determined by experts appointed by the court upon request by either party (de meeste gerede partij). The shares are valuated at the date of acceptance of the offer. From that date up to the date of transfer, an interest fixed by law is due with which the value of the shares is increased. Moreover, the experts must take into account fiscal consequences that negatively affect the position of the transferring shareholder. The costs of the experts are for the account of the offeror. The legislative history of the Dutch proceedings for settlement of disputes does not indicate whether the Company Law Committee referred to the rule that an offer for the shares would bar starting exit proceedings, nor that the Committee recommended introducing such rule. I note that in the situation of an offer pursuant to Article 2:251 paragraph 4 NACC, in principle there is only an offer and not yet acceptance. In my opinion, the rule contained in Article 2:251 paragraph 4 NACC forms an attractive way to prevent costly and time-consuming proceedings and should be introduced into Dutch law.6