6.3.4 Depositary receipts for shares

A holder of shares in an NV can issue depositary receipts for these shares in bearer form or in registered form. NV law discerns between (a) depositary receipts for shares that are issued with the assistance of the company and (b) depositary receipts for shares that are issued without the assistance of the company. In general, the depositary receipts referred to under (a) have all rights that shareholders have, except for voting rights, as well as a statutory right of pledge on the underlying shares pursuant to Art. 3:259 paragraph 2 DCC. Holders of depositary receipts without assistance neither have these shareholders' rights, nor have a statutory right of pledge.

Whether the company has assisted in the issue of depositary receipts for shares can only be derived from the facts. For instance, assistance may not be available if the articles of association of the NV or if the terras of administration of the administrator stipulate that the NV cannot or shall not lend its assistance to the issue of depositary receipts for shares. On the other hand, assistance may be available if the NV has paid the costs of administration.1 In practice, this factual approach leads to uncertainty about the assistance provided.

Although the rules with respect to depositary receipts for shares with and without the assistance of the company in the past were similar for BVs; the legislator chose to end the aforementioned uncertain situation with respect to BVs. New BV law introduced the tule of Art. 2:227 paragraph 2 DCC. This provision clarifies that the articles of association of the BV may entitle holders of depositary receipts for shares to attend the general meeting or may exclude this right. Nonetheless, uncertainty remains with respect to depositary receipts that have been issued before the introduction of new BV law.2