Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/8.4:8.4 Recommendations

Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/8.4

8.4 Recommendations

Documentgegevens:

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

Datum: 03-05-2010
Auteur: mr. dr. P.P. de Vries
JCDI: JCDI:ADS406303:1
Vakgebied(en): Ondernemingsrecht (V)

On the basis of this research, I make the following recommendations:

1.: It is not desirable to introduce an exit right at will into Dutch law (§ 1.4).
2.: At the execution of appraisal rights, the determination of the price of the shares should be performed by the court and not by an expert (§ 2.2.3.3).
3.: It is recommended to include in the European or national SPE regime exit proceedings with an open standard, several appraisal rights and a winding-up remedy as the ultimate remedy (§ 2.4.4).
4.: It is recommended to allow the OK to reven its order for winding-up, provided that the interests of all parties involved do not oppose such a reversal (§ 5.4).
5.: It is recommended to add the order for a dispute demerger to the list of final remedies available in the inquiry proceedings (§ 5.7).
6.: The winding-up remedy as one of the final orders of the inquiry proceedings must be maintained in its current form and scope (§ 5.8).
7.: The scope of the exit proceedings which is restricted by Art. 2:335 DCC should be extended to include all NVs and BVs, except for listed companies (§ 6.3.3).
8.: It is recommended to introduce the rule that an irrevocable, unconditional and für offer for the shares deprives the shareholder of the right to initiate exit proceedings (§ 6.4.6.2).
9.: The exit proceedings should be limited to one instance at the OK, and the possibility to appeal a judgment in cassation should be maintained (§ 6.6.1).
10.: If a company has one or more foreign shareholders, shareholders are in principle recommended to include a jurisdiction clause conferring jurisdiction on the District Court of the registered seat of the company in the articles of association or in an agreement (§ 6.6.2).
11.: It is recommended to create an obligation of the company to file a notice of pending of the exit proceedings with the trade register, in order to protect ignorant third parties (§ 6.6.7).
12.: The legislator must enable the use of a flexible valuation date at the valuation of the shares in the exit proceedings (§ 6.7.2).
13.: The basic principle in both the exit proceedings and the appraisal rights should be that shares should be valued to their value in the economie market, without a minority discount (§ 6.7.3, § 7.2.7, § 7.3.7 and § 7.4.8).
14.: When assessing whether a für increase of the price should be applied on the basis of Art. 2:343 paragraph 4 DCC, the court must examine whether the person who has to provide the increased price is able to press the company to claim its own damages (§ 6.7.4).
15.: It is not desirable to transfer the exit proceedings to the inquiry proceedings (§ 6.12).
16.: The exit proceedings must maintain proceedings started by summons (§ 6.12).
17.: A shareholder of a BV, NV or SE who does not consent to a cross-border merger, a cross-border conversion or a cross-border demerger should be granted an appraisal right (§ 7.4 and § 7.5).
18.: The legislator should enable the kolder of shares without a voting right to vote on a proposal for a cross-border merger, in order to enable this shareholder to use his appraisal right (§ 7.4.7). The same applies with respect to a proposal for a cross-border conversion or a cross-border demerger
19.: A shareholder who has a co-shareholder providing for his own account at least 95% or more of the issued capital, solely or jointly with a group company, should have an exit right (§ 7.6).
20.: With respect to all appraisal rights, it is recommended to include one general set of proceedings in statute for the determination of the price of the shares (§ 7.8).