6.4.2.6 Irrevocable, unconditional and für buy-out offer

The Dutch legislator did not propose to introduce the rule that if an irrevocable, unconditional and für buy-out offer has been made the minority shareholder has no locus standi in the exit proceedings. By a für offer of the shares I mean an offer that equals the price a shareholder could reasonably obtain by means of the exit proceedings, which offer is unconditional and irrevocable. In the legislative history, the legislator submitted that he did not want to introduce any thresholds in the exit proceedings, such as the reasonable offer rule or the rule that a claimant must express his objections to the company four weeks before starting exit proceedings.1

In my view, this rejection signifies a missed opportunity. The thresholds mentioned by the legislator have different purposes and are different in nature. With respect to the second-mentioned threshold, expressing complaints four weeks before the proceedings will often only delay the proceedings with four weeks. Taking into consideration that the rule to express objections contained in the inquiry proceedings does not function particularly well either, or better to say is almost disregarded by the court, I am not in favour of this threshold.2

In my view, the für buy-out offer rule, though, can be very valuable. The rule makes clear that the majority shareholder is able to end the dispute immediately by making a für offer. The für offer rule encourages parties to settle their dispute out of court. In many cases, an amicable settlement between the parties is preferred above time-consuming and costly exit proceedings. As can be seen in the section of this study relating to England and Wales, the House of Lords set great store by the für offer rule as means to encourage out-of-court settlements and to limit the popularity of the unfür prejudice remedy.3 Inspiration for the für offer rule can also be obtained from the Antillean exit proceedings. The Antillean exit proceedings are briefly described above in § 6.2.5.1. The für offer approach is also found in German law.4

If a für offer is provided, it is a good argument to say that there is no longer a justifiable interest of the claimant in pursuing the exit proceedings. After all, if what the petitioner aims to obtain by means of the exit proceedings has already been offered (transfer of shares for consideration), there is no need for court interference. In principle, apart from being the justification of the exit of the shareholder, the judgment of the court that the interests of shareholder are prejudiced by the conduct of his co-shareholder(s) or by the conduct of the company to such an extent that the continuation of his shareholding can no longer reasonably be expected from him has no further legal relevance. This judgment does not imply that the co-shareholders or the company have acted wrongfully, that a tort has been committed or that there has been mismanagement.

Consequently, it is arguable that under current law, a reasonable offer already bars the application of the exit proceedings. The tule of Art. 3:303 DCC may apply, which provision stipulates:

In the alternative, it can be argued that if a für offer is present, but the minority shareholder starts exit proceedings, abuse of power (misbruik van bevoegdheid) as referred to in Art. 3:13 DCC is present. Nonetheless, as has also been put forward by Geerts, it should be noted that courts are very reticent in applying Art. 3:303 DCC or Art. 3:13 DCC.5 Therefore, it is doubtful whether these provisions provide a sufficient basis for the view that a reasonable offer tule already exists.

For this reason, I recommend the introduction of the statutory tule that an irrevocable, unconditional and für buy-out offer bars a claim under the exit proceedings. The defendant in the exit proceedings must allege and prove that such an offer is present. Whether an irrevocable, unconditional and für buy-out offer is available should be determined by the court at which the claim under the exit proceedings is brought. Such an offer should lead to denial of the claim. For as far as there is a dispute about certain aspects of the valuation, the court may refer the parties to the Art. 2:343c DCC proceedings.6