7.4.6.6 Resolution for cross-border merger

In order to be able to merge, the merging companies have to resolve for a legal merger. These resolutions can only be adopted one month following the announcement in the national newspaper. Regarding the disappearing BV, the resolution for a legal merger must be adopted by the general meeting of the BV.

Dutch law requires that a Dutch civil-law notary be present at the general meeting of the disappearing BV recording the meeting in which the resolution is adopted (Art. 2:330 paragraph 4 DCC). It is recommended that in the notarial records the civil-law notary records which shareholders voted against the merger proposal, so that it will be clear which shareholders qualify for the appraisal right.

Which majority of votes in the meeting has to be obtained in order to resolve for a cross-border merger, depends on how many shareholders are present or represented at this meeting. The resolution must be adopted by a majority of at least two thirds of the votes cast at this meeting if less than half of the issued capital of the BV is present or represented in this meeting (Art. 2:330 paragraph 1 DCC). When the quorum of 50% of the issued capital of the BV is represented, a shareholders resolution adopted by an ordinary majority of the votes cast will do. The articles of association may stipulate for a higher threshold. The resolution for cross-border merger must be adopted in the same way a resolution for amendment of the articles of association has to be adopted, unless otherwise provided in the articles of association (Art. 2:317 paragraph 3 and 4 DCC).