6.5.9.4 Competing activities

In the Van Eyk case, a company was set up by Van Eyk and some other architects.2 The relationship between Van Eyk and the architecte turned sour, as a result of which Van Eyk was dismissed as a managing director.3 Later on, Van Eyk wished to exit the company as a shareholder. Although it was agreed that some of the co-shareholders would purchase the shares, there was no agreement on the price of the shares. In the meantime, the coshareholders set up a competing company at the same business address with a comparable name. This competing company performed services for projects of the initial company, which services were paid by the initial company. Moreover, an unsuccessful project was deliberately kept in the initial company.

The OK held that setting up and continuing a competing company at the same business address and performing aforementioned services form sufficient ground to reward a claim under the exit proceedings. The OK considered that these circumstances create a situation in which a minority shareholder, such as Van Eyk, is not able to assess whether transactions between the initial company and the competing company may lead to direction of profits to the competing company and whether transactions are at arm's length. Subsequently, the OK ordered the transfer of Van Eyk's shares to his co-shareholders.

Another occasion for the OK to assess whether competing activities justify a reward under the exit proceedings was the Holstar case.4 As appears from the facts, Ramp and Lensen each held 50% of the shares in Holstar BV, a company trading in embryos. The two men were managing directors as well. Two years after incorporation, Ramp started to compete with the company in personal capacity through another company.

The OK took into consideration that the initial company's turnover and profits required the loyal cooperation of both shareholders and managing directors. The OK held that it was not reasonable that competing activities were initiated by Ramp before the formal cooperation was properly ended by means of the initial company, leading to the sudden end of the actual cooperation. The OK judged that Ramp's conduct prejudiced the interests of both the company and Lensen and could be considered as contrary to the principles of reasonableness and fürness. Moreover, the OK put that the fact that there was no formal noncompetition clause binding the parties involved was no relevant factor with respect to the outcome of the judgment. Lensen was rewarded an exit pursuant to Art. 2:343 DCC.