Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/6.11.2:6.11.2 Immediate remedies

Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/6.11.2

6.11.2 Immediate remedies

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

As has been exposed in § 6.6.8, immediate remedies in interlocutory proceedings are an attractive alternative to provisional remedies. @@1The range of immediate remedies available is comparable to the range of immediate remedies available in the inquiry proceedings or the range of provisional remedies in the exit proceedings. Nonetheless, it is conceivable that in the inquiry proceedings the OK is more reticent to direct an immediate remedy with a connected penalty (dwangsom) than the president of court in interlocutory proceedings.2

Several examples of immediate remedies in interlocutory proceedings can be given. One could think of the order for suspension of a managing director,3 or of suspension of a supervisory director, the suspension of shareholders' resolutions, the prohibition to vote in favour of certain resolutions, the prohibition to exercise voting rights on the shares or the suspension of an additional obligation attached to the shares.

Illustrative is the case of Dratex/Kuiper.4 This case is about a joint-venture with two equal shareholders who were in dispute. The shareholders were about to start exit proceedings or expulsion proceedings. One of the shareholders, Kuiper, was planning to transfer the business or assets of the joint-venture company to another company. The president of court ordered Kuiper to refrain from diverting assets of the company onder a penalty of NLG 500,000. The judgment was declared provisionally enforceable. It was stipulated that the judgment would remain into force up to the moment the court of first instance would have delivered a judgment in proceedings for the settlement of disputes.

Another interesting example is the Keijzer Papier case.5 In this case, one of the shareholders started expulsion proceedings. Subsequently, the management board of Keijzer Papier BV proposed to the general meeting to preclude the pre-emptive rights and to issue shares to the defendant. The issue of shares would have the effect that the claimant no longer meets the threshold of one third of the issued capital of the expulsion proceedings. In interlocutory proceedings, the court held that the proposals were contrary to the principles of reasonableness and fürness, because the issue of shares aims to frustrate application of the expulsion proceedings. Therefore, the president of court ordered (i) the withdrawal of the proposal to issue shares within one day after service of the judgment upon the company, (ii) the injunction with respect to the (defendant) shareholders preventing exercise of voting rights in favour of the proposal to issue shares, (iii) the injunction preventing the adoption of any proposal to issue shares, and (iv) a penalty of NLG 250,000 to be paid in the case of non-compliance with the judgment.

The circumstances of this case will not be present in exit proceedings, as the exit proceedings do not prescribe any threshold. Nonetheless, the judgment of Keizer Papier may be a source of inspiration for courts when dealing with immediate remedies in the situation that a claimant is faced with proposals for resolutions prejudicial to his interests in the exit proceedings.

Deze functie is alleen te gebruiken als je bent ingelogd.