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15 Jun 2023 The shareholders' agreement: for better or worse

Establishing a private limited company (in Dutch: ‘besloten vennootschap’ or BV) together is often a special and festive moment. Upon incorporation at the notary's table, the champagne can be uncorked: the BV sees the light of day! This is actually the corporate law version of a marriage: you enter into an adventure together and hope to enjoy it for a long time. Of course, that’s what we hope as well. But what if the cooperation between the shareholders turns out not to be a "match made in heaven" after all?

At that moment, it often turns out that the document drawn up at the notary - the articles of association - does not give sufficient clarity to be able to come to a good conclusion together. Therefore, if we could give one tip to entrepreneurs, it would be this: when starting the company, always have a shareholders' agreement drawn up. In good times, this is a living document, with clear agreements. And in times of trouble, this agreement provides a starting point for how to proceed, and how to end the 'marriage' quickly and correctly. As such, the shareholders' agreement can actually be compared to a prenuptial agreement.

Even if you have been a co-shareholder of a BV for some time and things are going well, it is still a good idea to have a shareholders' agreement drawn up. Every cooperation comes to an end sooner or later, and when that end is in sight, relations tend to become strained. Unfortunate and unnecessary.

What does a shareholder agreement actually contain? You can think about the following topics:

  • Mandatory offer of shares: when must a shareholder offer his shares for sale to the other shareholders? And what price will the offeror get for his shares?
  • Drag along and tag along arrangement: does a shareholder have an obligation to co-sell (drag along) or a right to co-sell (tag along), if a third party makes an attractive offer for the shares of another existing shareholder?
  • Decision-making: are there certain matters on which shareholders want to decide with a weighted majority? Or are there decisions that shareholders need to approve before the board can take them?
  • Arrangements on drawing up and implementing the business plan;
  • Agreements on financing the BV: who will provide new capital, should it be needed? Should shareholders provide loans?
  • Dividend policy: what requirements must be met to distribute profits?
  • Relationship and competition clauses for shareholders: who, what and for how long?
  • Agreements on entry of new shareholders;
  • Confidentiality clause;
  • Penalty clause;
  • Dispute resolution;

Don't have a shareholders' agreement yet? Or are you wondering whether the existing shareholders' agreement could use a refresh? Our corporate lawyers will be happy to look at it with you. For a 'happily ever after'.

SPEE advocaten & mediation Maastricht


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