7.4.8 Valuation of the shares

Comparable to the roles on the appraisal right in both described situations of conversion of a BV, statute does not contain any yardstick with respect to the valuation of the shares when the appraisal right is invoked in the situation of a cross-border merger. Some rules on the valuation of the shares can be derived from the legislative history, although many uncertainties remain.

According to the legislative history, as a starting point, the indemnification must be equal to the value of the shares determined on the date of publication of the exchange ratio. This will be the day when the draft terras of the cross-border merger are deposited in accordance with Art. 2:314 DCC.1 If it appears from the auditor's certificate that the exchange ratio is reasonable, this exchange ratio can be of help when valuing the shares in order to determine the indemnification.

Nonetheless, as already mentioned, there is a potential risk that the auditor has certified that the exchange ratio is unreasonable. Moreover, even if the exchange ratio is considered reasonable, this does not imply that the exchange ratio is correct. Even if the exchange ratio is unreasonable or incorrect, the legai merger can be effected. According to the Minister of Justice, the indemnification does not necessarily relate to the exchange ratio:

So, in order to determine the indemnification, the exchange ratio might be of help, but does not represent a compulsory yardstick. In my opinion, when the exchange ratio no Jonger needs to be used as a compulsory yardstick, there is no longer a need to fix the reference date for the valuation on the day of deposit of the merger documents.

I assume that a reference date relating to the day on which the cross-border merger becomes effective is more appropriate. Without any doubt, this will be on the day that the opposing shareholder loses his shares. Taking this day as a reference date prevents discussion on whether the value of the shares has increased or decreased between the moment of deposit and the moment of effectiveness of the cross-border merger. Several months could have passed between these two moments. In this respect, the reference date is comparable to the reference date taken in proceedings for the settlement of disputes (see § 6.7.2). If the date on which the shares cease to exist is used as a reference date, the valuation does not need to take into account the advantages associated with the merger. This is in line with the legislative history.3

Neither statute nor the legislative history prescribes which valuation method has to be used, other than the reference to the exchange ratio. In my opinion, similar to the other two Dutch appraisal rights and the proceedings for the settlement of disputes, the value of the shares in the economie market has to be taken as a yardstick. The quotation of the Minister of Justice cited above seems to imply the same. Van Solinge and Van Boxel seem to make a similar assumption.4

In the opinion of the Minister of Justice, the indemnification should not be regarded as being damages. Claims for damages resulting from the cancellation of the shares of the opposing shareholder should not be rewarded by way of the indemnification referred to in Art. 2:333h DCC:

A further tule can be derived from the equality tule of Art. 2:201 DCC. Further to this tule, the indemnification has to be equal for all shareholders invoking the appraisal right. Leijten submits that in practice independent experts will always be appointed because of Art. 2:201 DCC.6 In my view, this scenario has to be more positive, as the expected costs of the independent experts may form an incentive for the company to bargain for a price that satisfies all shareholders invoking the appraisal right.