6.8.1.2 No right of first refusal

After the court has delivered the judgment determining the price of the shares, the claimant most likely takes further action in order to have the shares transferred. If the articles of association of the NV or BV do not include a right of first refusal (aanbiedingsregeling) and the shares do not have to be offered further to Art. 2:195 DCC (the statutory right of first refusal), the transfer of shares can be accomplished in quite a short period of time, provided that the judgment is irrevocable or declared provisionally enforceable. Art. 2:343a DCC instructs how to handle. Within two weeks after service of a copy of the judgment regarding the determination of the price of the shares upon the defendant, each of the defendants must acquire the number of shares specified by the court against simultaneous payment of the price determined by the court. Contrary to the expulsion proceedings, with respect to the exit proceedings statute does not leave space for arrangements between the shareholders regarding the distribution of the shares.

The court orders how the shares have to be allocated, as appears from Art. 2:343a paragraph 1 DCC. In this respect the exit proceedings deviate from the expulsion proceedings, as Art. 2:341 DCC paragraph 1 third sentence, stipulates that in principle the shares have to be transferred in proportion to the shareholding of the co-shareholders. In the exit proceedings, the claimant is ordered to transfer his shares in the proportion as ordered by the court to the defendants. In this respect, the court has a certain discretion. For instance, the court is allowed to take into consideration the degree of culpability of each of the co-shareholders to the prejudicial conduct, or the desire to maintain a balance of powers within the company.1

Co-shareholders joined as a party in the proceedings (but not as a defendant) and who have indicated to be put in a similar position as defendant, have to be considered as if they were defendants.2 This implies that the court also orders the transfer of shares to these co-shareholders.

If a defendant refrains from accepting the shares within the aforementioned two-week period, the other defendants as well as the persons considered as defendants are obliged to accept the remaining shares against simultaneous payment of the price assessed. The transfereer should then accept the shares as far as possible in the same proportion as reflected in the judgment and within two weeks starting from the day that the default has been established.3