6.8.1.3 Right of first refusal

If the articles of association of the NV or BV include a right of first refusal or if shares have to be offered further to Art. 2:195 DCC (the statutory right of first refusal), the shares to be transferred first have to be offered to the shareholders or others that are entitled to this right instead of being transferred to the defendant.1 The aforementioned obligation to offer the shares applies as of the moment of service upon the company of a copy of the judgment regardingdetermination of the price of the shares, provided that the judgment is declared provisionally enforceable or has become irrevocable.2

After service upon the company of a copy of the judgment by which the price of the shares is determined, the company must offer these shares in the name of claimant. The company must offer the shares in a written notice without any delay (onverwijld) and, for as far as possible, with application of the right of first refusal. Moreover, the company must notify the persons involved about the price of the shares. The shareholders or other persons entitled to the right of first refusal have to reflect on this notice within one month after sending of the notice by the company, regardless which period is prescribed by the articles of association. This reflection must be in writing and addressed to the company. After expiration of this month, the company must inform the defendant and the claimant within one week about the results of the offer. The company must notify whether and how many shares have been accepted and by whom the shares have been accepted.

Without any delay, the defendant must transfer the shares to the persons that have reflected against simultaneous payment of the price. Art. 2:343a paragraph 2 DCC does not specify this period, but as follows from paragraph 3, this period is two weeks at most.

If upon application of Art. 2:195 DCC or a right of first refusal in the articles of association (a) no, (b) merely a part of the shares have been accepted, or (c) if an intended transferee has not paid the price for the shares within the twoweek period after having been noticed by the company in writing about the assignment of shares, the remaining shares have to be transferred as if there was no right of first refusal.3 The shares are then distributed between the other defendants as far as possible in the proportion as laid down in the judgment.

As experience has shown, right of first refusal clauses differ from company to company. In case a dispute arises with respect to the application of the right of first refusal, one of the parties may request to court to decide, further to Art. 2:343a paragraph 7 DCC.