Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/7.4.6.4:7.4.6.4 Deposition and announcement

Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/7.4.6.4

7.4.6.4 Deposition and announcement

Documentgegevens:

mr. dr. P.P. de Vries, datum 03-05-2010

Datum: 03-05-2010
Auteur: mr. dr. P.P. de Vries
JCDI: JCDI:ADS409632:1
Vakgebied(en): Ondernemingsrecht (V)

The next step is the deposit of the aforementioned draft terras of the cross-border merger, the auditor's certificates, the annual accounts of the merging companies, and, if required, the interim balance sheet1 with the trade register. Moreover, the aforementioned documents, as well as the annual accounts and annual reports, which need not be deposited for public inspection, and the cross-border merger report need to be deposited with the offices of the merging companies.2

Subsequently, the deposit of the aforementioned documents has to be announced in one of the Dutch national newspapers.3 Moreover, an announcement inter alia referring to the rules according to which rights of minority shareholders and creditors can be exercised, and the address where the shareholders and creditors can obtain full information with respect to these rights free of charge has to be placed in the Governmental Gazette (Staatscourant). This rule is found in Art. 2:333e DCC. A right of minority shareholders in this context means the right of Art. 2:333h DCC. According to the legislative history, a general reference to the rights of minority shareholders suffices.4

The documents to be deposited with the offices of the merging companies have to remain available for inspection until the merger is effected and for a period of six months thereafter.5

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Art. 2:314 paragraph 1 DCC. All merging entities have to deposit the annual accounts as well as the management board's annual report over the last three consecutive financial years for which annual accounts were adopted (insofar as such documents are or have to be deposited). If more than six months have lapsed since the end of the last financial year for which annual accounts were adopted, an interim balance sheet of assets and liabilities should be deposited as well.

Art. 2:314 paragraph 2 DCC. Besides, the fact that adopted annual accounts that are already deposited with the trade register, have to be deposited another time is an unnecessary burden.

Art. 2:333e paragraph 3 DCC stipulates that Art. 2:314 paragraph 3 DCC does not apply. According to the legislative history this provision has to be explained in the way that the obligation to announce the matters described in Art. 2:333e paragraph 3 DCC does not apply to the announcement in the national newspaper. The obligation to announce the deposit of the merger documents in a national newspaper still applies. See Parliamentary Papers II 2006/07, 30 929, no. 7 (Nota n.a.v. Verslag), p. 13 and Parliamentary Papers II 2007/08, 30 929, C (MvA), p. 4.

Parliamentary Papers II 2006/07, 30 929, no. 3 (MvT), p. 14.

Please note Art. 2:314 paragraph 4 DCC as wen. If a works council or co-determination council of the BV or an association of employees, which includes employees of one of the merging companies or of a subsidiary amongst its members, submits a written recommendation or observations, the same shall, either together with the merger proposal or immediately upon receipt, be deposited at the offices of each of the merging companies.