Exit rights of minority shareholders in a private limited company
Einde inhoudsopgave
Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/6.5.9.7:6.5.9.7 Breach of statute, articles of association or shareholders' agreement
Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/6.5.9.7
6.5.9.7 Breach of statute, articles of association or shareholders' agreement
Documentgegevens:
mr. dr. P.P. de Vries, datum 03-05-2010
- Datum
03-05-2010
- Auteur
mr. dr. P.P. de Vries
- JCDI
JCDI:ADS410762:1
- Vakgebied(en)
Ondernemingsrecht (V)
Toon alle voetnoten
Voetnoten
Voetnoten
Rb Amsterdam 3 June 2009, LJN BL0658.
Deze functie is alleen te gebruiken als je bent ingelogd.
An example of a situation in which the exit proceeding may be applicable is the situation in which rules contained in statute or in the articles of association are deliberately not complied with by the general meeting or by the management board. For instance, the management board could repeatedly neglect its obligation to convene the annual general meetings or could consequently ignore rules that prescribe prior approval of the general meeting for certain resolutions of the management board. Ignorance of statutory rules or rules contained in the articles of association or a shareholders' agreement can be prejudicial to the interests of a minority shareholder. If non-compliance with statutory or constitutional rules results in prejudice to the minority shareholders, this may result into a situation in which the continuation of the shareholding of a minority shareholder can no longer reasonably be expected. The presence of this situation could justify an exit of a minority shareholder.
In a recent case, the District Court of Amsterdam rewarded a claim based on Art. 2:343 DCC, inter alia for the reason that several rules contained in the shareholders' agreement were not complied with by management board.1 In this case, the sole managing director was also the 75% majority shareholder. The shareholders' agreement, concluded between the two shareholders of the company (and presumably the company itself) stipulated that prior approval of the general meeting was required for a number of management board resolutions. According to the shareholders' agreement, such resolutions for approval required 76% of the votes cast in a meeting in which the total issued capital of the company is represented. In addition, the shareholders' agreement obliged the management board to draft a business plan every year. All aforementioned rules were not complied with. In addition, the 25% shareholder did not obtain sufficient information about the company and his remarks at the general meeting were not included in the minutes. The court held that the continuation of the shareholding of the 25% shareholder could no longer reasonably be expected.