Einde inhoudsopgave
Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/6.6.9.3
6.6.9.3 Without appointment of experts
mr. dr. P.P. de Vries, datum 03-05-2010
- Datum
03-05-2010
- Auteur
mr. dr. P.P. de Vries
- JCDI
JCDI:ADS404071:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Art. 2:339 paragraph 3 jo. 2:343 paragraph 2 DCC.
M put by the Minister of Justice in Parliamentary Papers II 2008/09, 31 058, no. 6 (Nota n.a.v. Verslag), p. 25.
Art. 2:339 paragraph 3 jo. 2:343 paragraph 2 DCC.
HR 21 January 2005, JOR 2005/57 (Hoffman Beheer).
See also infra § 6.7.3.
HR 21 January 2005, JOR 2005/57 (Hoffman Beheer), r.o. 3.3.2: 'Een redelijke toepassing van het voorschrift (...) brengt daarom mee dat de rechter de benoeming van deskundigen achterwege kan laten, indien de blokkeringsregeling een zodanige maatstaf voor de bepaling van de waarde van de aandelen kent, dat aan de hand daarvan de prijs door de rechter zonder meer kan worden vastgesteld.'
In a similar vein: Timmerman (2007a), p. 92.
The obligation to appoint experts does not apply in all circumstances. If parties already agree on the valuation of the shares it does not make sense to appoint experts. Therefore, the obligation does not apply in this situation (Art. 2:339 paragraph 3 DCC).1 The possibility to refrain from appointing experts has the attractive advantage that an expensive expert report will not be prepared.2
Moreover, pursuant to Art. 2:339 paragraph 3 DCC the obligation to appoint experts also does not exist if the articles of association or a shareholders' agreement include valuation clauses with help of which the court may value the shares without difficulty (zonder meer).3 This tule, now contained in statute, can be seen as a codification of the Supreme Court judgment in the case of Hoffmann Beheer.4 This judgment was given at the time that statute did not expressly contain an exception for the obligation to appoint experts as nowadays is contained in Art. 2:339 paragraph 2 DCC.
In the expulsion proceedings case of Hoffmann Beheer, Hoffmann senior was ordered to transfer his shares to Hoffmann junior. Senior held 187 shares A in the capital of the Hoffmann Beheer B.V. and Junior held 93 shares A as well as 70 ordinary shares in the capital of the company. The shares A gave its holders entitlement to (a) profits of the company for as far this did not exceed the statutory interest calculated on the basis of the nominal value of the shares A; (b) entitlement to the surplus after liquidation of the company, but only for as far this did not exceed the nominal value of the shares A as well as to profits that were not already distributed on the shares A. Moreover, the shares A carried special rights in relationship to amongst other things the appointment of managing directors, the issue of shares and the amendment of the articles of association. As a result of the division of the voting rights, Senior could be deemed a majority shareholder. In addition, the articles of association stipulated that in the case of any transfer of the shares A, the price paid for these shares could exceed their nominal value onder no circumstances. As a result of the limited entitlement with respect to profits, to the balance after liquidation and to any transfer consideration, the shares A only had a limited value.
The District Court ordered the transfer of the shares and without appointing experts. In the same judgment the court also held that the price for the shares should be set at their nominal value. The OK upheld this judgment in appeal. In cassation, the Supreme Court sanctioned the judgment of the OK. The HR held that the obligation to appoint experts stems from the idea that in the event of a forced sale, the shareholder should receive the same price for his shares as if the shares were sold voluntarily.5 Therefore, according to the HR, a reasonable application of the obligation to appoint experts involves that no appointment is needed if the circumstances of the case would require so. This is the case if the restriction clause included in the articles of association contains a valuation method with help of which the court can determine the price of the shares straight away. The HR stated:
"A reasonable application of the regulation (...) entails therefore that the court may refrain from appointing experts, if the transfer restriction clause has such a standard for the determination of the value of the shares, that on the basis of this the price can be determined by the court just like that."6
The judgment of the Dutch Supreme court can be seen as an elaboration of Art. 2:8 paragraph 2 DCC. The latter provision stipulates that inter alia a rule that binds parties by virtue of statute is inapplicable to the extent application thereof would be unacceptable according to the standards of reasonableness and fürness in the given circumstances.7
In the situation that the court does not appoint experts because the price can be determined just like that, the court determines the price of the shares in the judgment by which the claim for exit has been rewarded. This practical rule is found in Art. 2:340 paragraph 2 (expulsion proceedings) and is applicable mutatis mutandis in the exit proceedings pursuant to 2:343 paragraph 2 DCC.