6.8.3 Depositary receipts for shares

A shareholder may start exit proceedings against a shareholder who is an administrator holding legal title to the shares while depositary receipts for shares have been issued. In this situation, pursuant to Art. 2:343a paragraph 6 DCC, the holders of such depositary receipts for shares can be brought in the exit proceedings, provided that they are summoned in time (tijdig). As an administrator usually does not have available funds, but merely legally holds the administered shares, he cannot provide consideration for shares. Therefore, a claimant would normally wishes to involve the holders of depositary receipts in proceedings as well. If necessary, the claimant may request the court to order the administrator to provide information necessary to prepare the summons and trace the holders of depositary receipts.

In addition to the administrator, the holders of depositary receipts are liable for the acceptance of the shares against simultaneous payment of the price determined by the court, as far as possible in proportion to the percentage of depository receipt held by each holder. This rule, found in Art. 2:343a paragraph 6 DCC, seems to imply that holders of depositary receipts are in principle partly liable and not jointly liable for the acceptance of all shares. Usually, the administrator will not be able to provide consideration, so the holders of depositary receipts will accept the shares in proportion and provide consideration.

Nonetheless, the holders of depositary receipts are also proportionally liable, if one of them remains in default with his obligations, as made clear by Art. 2:343a paragraph 6 DCC. In the laffer situation, the remaining shares have to be distributed among the other holders as far as possible pro rata to their initial holdings of receipts, upon simultaneous payment of the price. So, it is imaginable that eventually one holder of depositary receipts or the administrator is liable for acceptance of all shares.

Art. 2:343a paragraph 6 DCC is useful in the situation of issue of depositary receipts for shares. If this rule is not included in statute, a shareholder can frustrate or complicate application of exit proceedings beforehand by having depositary receipts for shares issued. The Minister of Justice justified this rule as follows:

I remark that the fact that a defendant is impecunious does not prohibit application of the exit proceedings, but will lead to a troublesome execution of the judgment. Nonetheless, I concur with the Minister that Art. 2:343a paragraph 6 DCC leads to the most practical solution in case one of the administrator is not able to provide consideration. Pursuant to Art. 2:343a paragraph 7 DCC the court has jurisdiction with respect to disputes that stem from application of the aforementioned mies.

An administrator could also start exit proceedings against a co-shareholder.2 Art. 2:336 paragraph 2 DCC does not apply mutatis mutandis with respect to the exit proceedings. Whether an administrator is able to start exit proceedings depends on its articles of association. If the articles of association of the administrator prohibit the transfer of shares, the administrator cannot start exit proceedings. In order to initiate exit proceedings, such articles of association must be amended. Whether an administrator is allowed to start exit proceedings will depend on its terms of administration (administratievoorwaarden).