Dutch Civil Code

Book 2 Legal Persons

Title 2.4 Open Corporations (public limited companies)

Section 2.4.1 General provisions

Article 2:64 Definition of an 'Open Corporation'; formation
- 1. An Open Corporation ('naamloze vennootschap') is a legal person with an authorized capital divided in transferable shares. A shareholder is not personally liable for what is performed in the name of the Corporation and he is not obliged to contribute to the losses of the Corporation for more than what he has paid up or still has to pay up on his shares. At least one share is held by another than, and not for account of, the Corporation or its subsidiaries.
- 2. The Corporation is formed (incorporated) by one or more persons by means of a notarial deed. The notarial deed of incorporation is signed by every founder (incorporator) and by everyone who according to this deed takes one or more shares.
- 3. The notarial deed of incorporation must have been executed within three months after the date on which the declaration of no objection was issued by the Minister of Justice, under the penalty of expiration of that declaration. Upon the request of any interested party, the Minister of Justice may extend this period for compelling reasons with at the most three months.

Article 2:65 Dutch language; written procuration
The notarial deed of incorporation of an Open Corporation ('naamloze vennootschap') is executed in the Dutch language. A procuration (power of attorney) to cooperate in the execution of the notarial deed must be granted in writing.


Article 2:66 Content of the deed of incorporation
- 1. The notarial deed of incorporation must contain the articles of incorporation of the Open Corporation ('naamloze vennootschap'). The articles of incorporation contain the name, the seat and the purpose (objective) of the Open Corporation ('naamloze vennootschap').
- 2. The name starts or ends with the words "Naamloze Vennootschap" (literally meaning: 'Nameless Corporation"*), either written in full, or abbreviated to "N.V.".
- 3. The seat must be located in the Netherlands.

*) The word "Naamloos" ('Nameless') refers to the fact that an Open Corporation, contrary to a Closed Corporation, may not only issue registered shares, which in Dutch are called 'shares to name', but also shares to bearer of which the proprietor, seen from the point of view of the Corporation, is anonymous, i.e. not registered under any name in the register of shareholders or any other records of the Corporation, and therefore nameless.

Article 2:67 Content of the articles of incorporation
- 1. The articles of incorporation specify the amount of the authorized share capital and the number and the amount of the shares in Euros to at the most two decimal places. When there are different types (classes) of shares, then the articles of incorporation specify the number and the amount of each type (class). The notarial deed of incorporation specifies the amount of the issued share capital and of the paid up part thereof. When there are different types (classes) of shares, then the amounts of the issued share capital and paid up share capital are specified for each type (class). The notarial deed of incorporation specifies in addition for all persons who have taken shares at the formation (incorporation), the data referred to in Article 2:86, paragraph 2, under point (b) and (c), including the number and type (class) of the shares he has taken and the amount that he has paid up on these shares.
- 2. The authorized and issued share capital must amount to at least the minimum capital. The minimum capital is forty-five thousand Euros. This amount is raised by Order in Council if the laws of the European Communities order an increase of the issued share capital. For Open Corporations existing on the day before this increase enters into force, such increase shall only become effective eighteen months after that day.
- 3. The paid up (called up) part of the issued share capital must amount to at least forty-five thousand Euros.
- 4. At least one fifth of the authorized share capital must have been issued.
- 5. An Open Corporation ('naamloze vennootschap') which has come to existence before 1 January 2002 may specify the amount of its authorized share capital and the amount of the shares in guilders to at the most two decimal places.

Article 2:67a Conversion of amounts into Euros
- 1. If an Open Corporation ('naamloze vennootschap'), of which the articles of incorporation specify the amount of the authorized share capital and the amount of shares in guilders, converts these amounts into Euros, then the amount of the authorized share capital and of the paid up part thereof is calculated in accordance with the finally fixed conversion price as referred to in Article 109L, paragraph 4, of the Treaty on the European Union, rounded up to two decimal places. The rounded amount of each share in Euros may at the most be 15% higher or lower than the original nominal amount of the share in guilders. The total of the amounts of shares in Euros as meant in Article 2:67 shall represent the authorized share capital. The sum of the amounts of the issued shares and the paid up part thereof in Euros shall be the amount in Euros of the issued share capital and the paid up share capital. The notarial deed specifies the amount in Euros of the issued share capital and the paid up part thereof.
- 2. When, after a conversion as referred to in paragraph 1, the sum of the amounts of the issued shares is higher than the amount of the issued share capital as converted in accordance with the finally fixed conversion price as referred to in Article 109L, paragraph 4, of the Treaty on the European Union, then the difference will be charged to the distributable reserves or the reserves meant in Article 2:389 or 2:390. If these reserves are not sufficient, then the Corporation shall create a negative reserve to the amount of the difference that could not be charged to the distributable and non-distributable reserves. Until the difference has been written off from retained profits or from to be created reserves, the Corporation is not allowed to make a distribution as referred to in Article 2:105. By complying with the provisions of this paragraph the shares are deemed to be fully paid up.
- 3. When, after a conversion as referred to in paragraph 1, the sum of the amounts of the issued shares is lower than the amount of the issued share capital as converted in accordance with the finally fixed conversion price as referred to in Article 109L, paragraph 4, of the Treaty on the European Union, then the Corporation shall maintain a non-distributable reserve to the amount of the difference. Article 2:99 does not apply.

Article 2:67b Change of the amount of the shares in derogation from Article 2:67a
If the Corporation changes the amount of the shares in another way than specified in Article 2:67a, then such a change requires the approval of each group of shareholders whose rights are harmed as a result thereof. Where such a change leads to an entitlement to money or debt-claims, the total amount thereof may not exceed one tenth of the changed nominal amount of the shares.

Article 2:67c Denomination in guilders and the use of an equivalent amount in Euros
- 1. An Open Corporation ('naamloze vennootschap') of which the articles of incorporation specify the authorized share capital and the amount of the shares in guilders, may use in its contacts with others the equivalent amount in Euros to at the most two decimal places, provided that, when doing so, it refers to the present Article. The use of such an equivalent has no legal effect.
- 2. Where an Open Corporation ('naamloze vennootschap'), of which the articles of incorporation specify the authorized share capital and the amount of the shares in guilders, after 1 January 2002 brings about a change in these articles to one or more provisions in which an amount is expresses in guilders, all amounts in the articles of incorporation must be converted into Euros. Article 2:67a and 2:67b shall apply in such an event.

Article 2:68 [repealed on 01-07-2011]

Article 2:69 Registration in the commercial register
- 1. The Directors are responsible for the registration of the Open Corporation ('naamloze vennootschap') in the commercial register, and must deposit at the office of that register (Chamber of Commerce) an authentic extract of the notarial deed of incorporation and of the documents attached to it pursuant to Article 2:93a, 2:94 and 2:94a as well as a copy of the documents compiled pursuant to Article 2:94a, paragraph 4, last sentence. They must, at the same time, report to the keeper of the commercial register for registration the total of the real and estimated costs made or to be made for account of the Corporation in connection with its formation (incorporation).
- 2. The Directors are jointly and severally liable, in addition to the Open Corporation ('naamloze vennootschap'), for any juridical act performed during their directorship through which the Corporation has been committed (bound) in a period prior to the moment on which:
a. the application for the initial registration in the commercial register was lodged, together with the to be deposited extracts and copies;
b. the paid up share capital amounts at least the minimum capital required for the formation (incorporation) of an Open Corporation ('naamloze vennootschap'), and;
c. at least one quarter of the nominal value of the share capital issued at the formation (incorporation) has been paid up.
- 3. The liability referred to in paragraph 2, under point (b) and (c), does not apply if Article 2:94a, paragraph 4, last sentence, has been applied and the payments, necessary to comply with Article 2:67, paragraph 3, and Article 2:80, paragraph 1, have been called up on behalf of the Corporation immediately after the accountant certificate (auditor's report) was given.

Article 2:70 [repealed on 01.01.1992]

Article 2:71 Conversion of an Open Corporation into a legal person of a different type
- 1. When an Open Corporation ('naamloze vennootschap') converts itself on the basis of Article 2:18 into an Association ('vereniging'), Cooperative ('coöperatie') or Mutual Insurance Society ('onderlinge waarborgmaatschappij'), each shareholder shall become a member, unless he has claimed a compensation as referred to in paragraph 2.
- 2. Article 2:100 applies to a resolution for the conversion of the Open Corporation ('naamloze vennootschap'), unless the Open Corporation ('naamloze vennootschap') is converted into a Closed Corporation ('besloten vennootschap'). After such a resolution any shareholder who has not given his consent to it, may claim compensation from the Corporation for the loss of his shares. Such a claim must be filed with the Corporation in writing, within one month after the Corporation has notified the shareholder that he may claim such a compensation. The notice is given in the same way as the convening notice for a General Meeting.
- 3. When no agreement can be reached, the compensation shall be assessed by one or more independent experts, to be appointed, upon the request of either party, by the District Court at the moment that the court's authorisation for a conversion is requested, or by the provisional relief judge of that court. Articles 2:351 and 2:352 shall be applicable.

Article 2:72 Conversion of a legal person of another type into an Open Corporation
- 1. When a Closed Corporation ('besloten vennootschap') converts itself on the basis of Article 2:18 into an Open Corporation ('naamloze vennootschap'), a certificate of an accountant (auditor's report) as referred to in Article 2:393, paragraph 1, shall be attached to the notarial deed of conversion, from which shows that the equity (total assets minus liabilities) of the Corporation on a specific day within five months prior to the conversion in any event corresponded to the paid and called up share capital.
- 2. When another legal person than a Closed Corporation ('besloten vennootschap') converts itself on the basis of Article 2:18 into an Open Corporation ('naamloze vennootschap'), the following documents must be attached to the notarial deed of conversion:
a. a certificate of an accountant (auditor's report) as referred to in Article 2:393, paragraph 1, indicating that the equity (total assets minus liabilities) of the Corporation on a specific day within five months prior to the conversion in any event equals the sum of the paid up part of the issued share capital as specified in the notarial deed of conversion; the value of what will be paid on the shares in the period after that day until at the latest a day immediately following the conversion may be added to that equity (total assets minus liabilities).
b. if the legal person has members: the written consent of each member whose shares are not fully paid up by means of a conversion of the reserves of that legal person;
c. if a foundation is converted: the required authorization of the court.
- 3. When an Association ('vereniging'), cooperative ('coöperatie') or Mutual Insurance Society ('onderlinge waarborgmaatschappij') converts itself on the basis of Article 2:18 into an Open Corporation ('naamloze vennootschap'), each member shall become a shareholder. The conversion cannot be made as long as a member still is able to terminate his membership by virtue of Article 2:36, paragraph 4.

Article 2:73 [repealed on 01.09.1994]

Article 2:74 Dissolution of an Open Corporation
- 1. Upon the request of the Public Prosecution Service, the District Court shall dissolve an Open Corporation ('naamloze vennootschap') when that Corporation is no longer able to realize its objective (purpose) due to a lack of assets, and the District Court may dissolve the Open Corporation ('naamloze vennootschap') when that Corporation has ceased its activities through which it tried to realize its objective (purpose). The Public Prosecution Service informs the Chamber of Commerce of its intention to file a request for the dissolution of that Corporation.
- 2. The District Court shall dissolve an Open Corporation ('naamloze vennootschap') upon the request of the Public Prosecution Service if the Corporation's issued share capital or the paid up part thereof is less than the required minimum capital.
- 3. Before ordering the dissolution, the District Court may give the Corporation the opportunity to remove (repair) the legal defects or to convert itself into a Closed Corporation ('besloten vennootschap'), both to be accomplished within a specific period set by court.

Article 2:75 Mentioning of the name and domicile; mentioning of the issued share capital and the paid up part thereof
- 1. The full name of the Open Corporation ('naamloze vennootschap') and its domicile (address) must appear clearly from all writings, printed documents and announcements which are issued by the Corporation or in which the Corporation is defined as a party to an act or event, all with the exception of telegrams and advertisements.
- 2. If the Open Corporation ('naamloze vennootschap') makes mention of its (authorized) share capital, then it must mention in any event also the nominal amount of its issued share capital and how much of that issued share capital has been paid up.

Article 2:76 [repealed on 25.11.1988]

Article 2:76a Definition of an 'Investment Company with Variable Capital'
- 1. An 'Investment Company with Variable Capital' means an Open Corporation ('naamloze vennootschap'):
a. which has the exclusive purpose (objective) to invest its capital (assets) in such a way that the risks involved are spread in order to let its shareholders share in the return on the investments;
b. of which the Board of Directors, according to the articles of incorporation, is empowered to issue, acquire and dispose of shares in the Corporation's capital;
c. for which a license or a declaration for the placement under supervision for the issuance of its shares as meant in the Financial Supervision Act has been granted to a management company, and;
d. of which the articles of incorporation specify that the Corporation is an Investment Company with Variable Capital.
- 2. The Corporation reports to the keeper of the commercial register (Chamber of Commerce) and to the Netherlands Authority for the Financial Markets (AFM) that it is an "Investment Company with Variable Capital". These last words must be used clearly in all writings, printed documents and announcements which are issued by the investment company with variable capital or in which this company is defined as a party to an act or event, all with the exception of telegrams and advertisements.

Article 2:77 [repealed on 01-01-2014]

Text until 01-01-2014:
Where in the present Title (Title 2.4) the office of the commercial register is mentioned, by 'commercial register' is understood the register kept by the Chamber of Commerce which is authorized to register the Corporation pursuant to Article 18, sixth and seventh paragraph, of the Commercial Register Act 2007.

Article 2:78 'Issued part of the authorized share capital'
Where the articles of incorporation refer to the holders of as much shares as jointly constitute a certain part of the authorized share capital of the Corporation, by 'capital' is understood the issued part of the authorized share capital, unless the contrary appears from the articles of incorporation.

Article 2:78a 'Body of the Corporation'
For the purpose of Articles 2:87, 2:96, 2:96a, 2:101, paragraph 6, and 2:129, by a 'body of the Corporation' is understood the General Meeting, the meeting of holders of shares of a particular type (class), the Board of Directors, the Supervisory Board and the joint meeting of the Board of Directors and the Supervisory Board.

Section 2.4.2 The shares

Article 2:79 Definition of 'shares' and 'fractional shares'
- 1. Shares are the parts into which the authorized capital of an Open Corporation ('naamloze vennootschap') is divided according to its articles of incorporation.
- 2. Fractional shares are the parts into which the shares are or may be split according to the articles of incorporation of the Open Corporation ('naamloze vennootschap').
- 3. The statutory provisions for shares and shareholders of the present Title (Title 2.4), shall apply accordingly to fractional shares and holders of fractional shares to the extent that the contrary does not appear from these provisions.

Article 2:80 Obligation to pay up the issued shares
- 1. On subscription for a share the nominal amount thereof must be paid to the Corporation and also, if the share is taken for a larger amount, the difference between those amounts. It is possible to stipulate that a proportion of the payable sum, not exceeding three fourths of the nominal amount, only has to be paid after the Corporation has called it in.
- 2. Persons who in the conduct of their business or professional practice are engaged in the issuance of shares for their own account, may be allowed, by agreement, to pay less than the nominal amount on the shares taken, provided that at least ninety-four percent of this lower amount is paid up in money, at the latest when the shares are taken.
- 3. A shareholder cannot entirely or partially be relieved from his obligation to pay up his share, except for what is provided in Article 2:99.
- 4. A shareholder and, in the situation referred to in Article 2:90, a former shareholder are not entitled to sett off a debt imposed on them pursuant to the present Article.

Article 2:80a Payment for allotted shares in (foreign) currency
- 1. The payment for an allotted share must be made in money to the extent that no other kind of contribution has been agreed upon.
- 2. Before or on the formation (incorporation) of the Corporation, a payment can be made only in foreign currency if the notarial deed of incorporation specifies that a payment in foreign currency is permitted; after the formation (incorporation), such a payment can only be made with the consent of the Open Corporation ('naamloze vennootschap'). Payment in a currency that is a unit of the Euro by virtue of Article 109L, fourth paragraph, of the Treaty on the European Union, is not regarded as a payment in foreign currency.
- 3. A payment in foreign currency will result in the performance of the obligation to pay up the shares to the extent that the paid up sum can be converted (exchanged) freely into Dutch currency. Decisive is the exchange rate on the day of payment or, if the payment was made more than one month before the formation (incorporation), on the day of formation (incorporation) or, after application of the next sentence, on the day meant therein. The Corporation may demand payment at an exchange rate on a fixed day, chosen within two months before the last day on which the payment must be made, provided that the shares or depository receipts for those shares will be admitted immediately after their issuance to a regulated market or multilateral trading facility as meant in Article 1:1 of the Financial Supervision Act for which a licence is granted in another Member State or to a system comparable with such regulated markets or multilateral trading facilities in a State that is not a EU Member State.

Article 2:80b Contributions other than money
- 1. If another contribution than money has been agreed upon, then this contribution must be eligible for a valuation on the basis of economic standards. A right to claim the performance of work or services cannot be contributed.
- 2. A contribution other than money must be made immediately after the share is taken or after the day on which an additional payment, which may be made through a contribution other than money, must have been received by the Corporation or on which such contribution has been agreed upon.

Article 2:81 No other obligation than to pay up the nominal amount
It is not possible, not even by means of an amendment of the articles of incorporation, to impose on a shareholder, against his will, any other obligation than to pay up the nominal amount of his share.

Article 2:82 Registered shares (shares to name) and shares to bearer
- 1. The articles of incorporation specify whether the shares in the Corporation are registered shares (shares to name) or shares to bearer.
2. If a share can be both, a registered share as well as a share to bearer, the Open Corporation ('naamloze vennootschap') must issue, upon the request of the shareholder, one share to bearer for one fully paid up registered share or vice versa, as far as the articles of incorporation do not provide otherwise, and this against payment of at the most the cost price of the conversion.
- 3. Certificates of shares to bearer may only be issued to shareholders against payment of at least the full amount still payable on those shares, except for what is provided in Article 2:80, paragraph 2.
- 4. If shares to bearer are converted into registered shares by means of an amendment of the articles of incorporation, then the shareholder cannot exercise the rights attached to a share until he has surrendered the share certificate to the Corporation. This rule shall apply accordingly if holders of shares to bearer as a result of a merger or split up of the Corporation have become holders of registered shares, on the understanding that it is sufficient in such event to hand in the share certificate.

Article 2:83 Protection of third persons who afterwards have acquired a share in good faith
Towards someone who has acquired a share in good faith after it had been obtained by the subscriber to whom it was allotted initially, the Open Corporation ('naamloze vennootschap') is unable to prove that, where it concerns a share to bearer, this share is not fully paid up, or, where it concerns a registered share, that a smaller amount has been paid up on that share than the paid up amount mentioned by the Corporation on the share certificate related to that share.

Article 2:84 Power of the liquidator and bankruptcy liquidator
The liquidator of an Open Corporation ('naamloze vennootschap') and, in the event of bankruptcy, the bankruptcy liquidator are empowered to call up and collect all due payments not yet made on allotted shares, no matter what the articles of incorporation may specify with regard to this.

Article 2:85 Register of shareholders
- 1. The Board of Directors of the Open Corporation ('naamloze vennootschap') keeps a register in which the names and addresses of all holders of registered shares are recorded, and in which is mentioned as well the date on which they acquired their shares, the date of acknowledgement by the Corporation or of the official service on the Corporation, and the amount paid up on each share. In this register are recorded also the names and addresses of those who have a right of usufruct or pledge on the shares, with mention of the date on which they acquired their limited property right, the date of acknowledgment by the Corporation or of the official service on the Corporation, and the persons entitled to exercise the rights attached to these shares pursuant to Article 2:88, paragraph 2 and 4, and 2:89.
- 2. The register shall be updated regularly; it shall mention as well each granted relief from liability for not fully paid up shares.
- 3. The Board of Directors shall present to a shareholder, usufructuary or pledgee, upon request and free of charge, an extract from the register in respect of his entitlement to a share. If the share is encumbered with a usufruct or pledge, the extract mentions as well who is entitled to exercise the rights referred to in Article 2:88, paragraph 2 and 4, and 2:89.
- 4. The Board of Directors shall deposit the register of shareholders at the office of the Corporation for inspection by its shareholders and by the usufructuaries and pledgees who are entitled to exercise the rights referred to in paragraph 4 of Articles 2:88 and 2:89. The preceding sentence shall not apply to the part of the register that is kept outside the Netherlands in compliance with laws or stock exchange rules applicable there. The data from the register about not fully paid up shares are available for inspection to everyone; a copy or extract of this information shall be provided against payment of at the most the cost price.

Article 2:86 Issuance and transfer of registered shares and limited property rights in such shares
- 1. The issuance and transfer of registered shares, other than those referred to in Article 2:86c, or the transfer of limited property rights in such shares requires a notarial deed to which the involved persons are a party, executed for this purpose in front of a Dutch notary. No separate notarial deed is required for the issuance of registered shares which are taken on the formation (incorporation) of the Open Corporation ('naamloze vennootschap').
- 2. The notarial deed of issuance or transfer must specify:
a. the legal basis for the juridical act [i.e. for the issuance or transfer] and the way in which the share or the limited property right in a share has been acquired;
b. the name, forename, date of birth, place of birth, domicile (residence) and address of the natural persons who are a party to the notarial deed;
c. the type, name, domicile (seat) and address of the legal persons which are a party to the notarial deed;
d. the number and type (class) of shares to which the notarial deed relates, and;
e. the name, domicile (seat) and address of the Corporation that has issued the shares to which the juridical act relates.

Article 2:86a Effect of a transfer towards the Corporation and third persons
- 1. Where a registered share or a limited property right therein has been transferred in accordance with Article 2:86, paragraph 1, the transfer shall have legal effect as well towards the Corporation by operation of law. Except in the event that the Corporation itself is a party to the juridical act, the rights attached to the shares can be exercised only after the Corporation has acknowledged the juridical act upon a request of one of the parties, or after the notarial deed has been officially served on the Corporation in accordance with the provisions of Article 2:86b, or after the Corporation has acknowledged the juridical act of its own motion by means of a registration of the new shareholder or limited proprietor in the register of shareholders in the way referred to in paragraph 2.
- 2. Where the Corporation has become aware of a juridical act as referred to in paragraph 1, it may of its own motion, as long as no acknowledgement of the juridical act has been requested by one of the parties and no notarial deed has been officially served on the Corporation, acknowledge that juridical act by means of a registration of the person who has acquired the share or a limited property right therein in the register of shareholders. If it makes such a registration, it shall immediately notify the involved parties thereof by registered letter, with the request to submit a copy or extract as meant in Article 2:86b, paragraph 1, to the Corporation. After the Corporation has received such a copy or extract, it shall make a note on it in proof of the acknowledgement, in the way as prescribed by Article 2:86b for such acknowledgement; the day of registration shall be noted as date of acknowledgement.
- 3. If a juridical act as meant in paragraph 1 has been performed which has not lead to a corresponding change in the register of shareholders, this juridical act cannot be invoked against the Corporation, nor against others who in good faith have regarded the person registered in the register of shareholders as the shareholder or proprietor of a limited property right in a share.

Article 2:86b Formal requirements for an acknowledgement by or an official service on the Corporation
- 1. Except in the situation as meant in Article 2:86a, paragraph 2, the acknowledgement shall take place in the notarial deed itself [by a declaration of acknowledgement of the Corporation in that deed] or on the basis of the submission of an authentic copy or extract of that notarial deed to the Corporation.
- 2. In the event of an acknowledgement based on the submission of an authentic copy or extract of the notarial deed, the Corporation shall place a dated declaration of acknowledgement on the submitted document.
- 3. An official service on the Corporation requires that an authentic copy or extract of the notarial deed is served by bailiff's writ on the Corporation.

Article 2:86c Transfer of registered shares in a Corporation whose shares are traded on the stock exchange
- 1. The following provisions of the present Article shall apply to the transfer of registered shares in an Open Corporation ('naamloze vennootschap') whose shares (to bearer) or depositary receipts for shares are admitted to a regulated market or multilateral trading facility as meant in Article 1:1 of the Financial Supervision Act, or to a system comparable with such regulated markets or multilateral trading facilities in a State that is not a EU Member State, or whose shares (to bearer) or depositary receipts for shares, as reasonably may be expected at the time of the juridical act (delivery of registered shares), will be admitted soon to such markets; the provisions of the present Article shall apply as well to the transfer of limited property rights in registered shares or depository receipts of a before meant Open Corporation ('naamloze vennootschap').
- 2. The transfer of a registered share or the transfer of a limited property right in such a share requires a (notarial or private) deed, drawn up for this purpose, and in addition, except when the Corporation itself is a party to the juridical act, a written acknowledgement by the Corporation of the transfer. The acknowledgement takes place in the deed itself, or by a dated declaration of acknowledgment on the deed or on a copy or extract thereof signed by a notary or the alienating party (transferor), or in the manner provided for in paragraph 3. With an acknowledgement is equated an official service of the before mentioned deed, copy or extract on the Corporation. Where it concerns the transfer of not fully paid up shares, the acknowledgement can only take place when the date on which the (notarial or private) deed has been drawn up is fixed in such a way that it is certain that this is the correct date*).
- 3. Where a share certificate has been issued for a registered share, the articles of incorporation may in addition require that this share certificate is surrendered to the Corporation. This requirement does not apply if the share certificate is lost, stolen or destroyed, while it cannot be replaced according to the articles of incorporation. If the share certificate is surrendered to the Corporation, the Corporation may acknowledge the transfer by placing a note on the share certificate from which such acknowledgement shows, or by replacement of the surrendered share certificate by a new share certificate which is put in the name of the acquiring party (transferee).
- 4. A pledge may be established also without an acknowledgement by or official service on the Corporation. In that event Article 3:239 of the Civil Code applies accordingly, in which case the acknowledgement by or the official service on the Corporation shall replace the notice referred to in paragraph 3 of that Article.

*) In case of a notarial deed, drawn up by a notary, the deed will always include such a fixed date. The same applies when it concerns a private deed, drawn up by the parties themselves, which is registered by the Tax Authorities, in the sense that it contains a stamp of the date on which it was received by these Authorities.

Article 2:86d Duplicate of a certificate of a share to bearer
- 1. The holder of a certificate of a share to bearer may request the Corporation to provide him a duplicate of a lost share certificate.
- 2. The holder must make plausible that the share certificate is lost, indicating the characteristics of the relevant share certificate.
- 3. The Corporation shall publish the request for a duplicate in the price list of a regulated market or multilateral trading facility as specified in Article 1:1 of the Financial Supervision Act, or in the price list of a system comparable with such regulated markets or multilateral trading facilities in a State that is not a EU Member State or, if the shares are not listed therein, in a daily newspaper which is spread nationwide.
- 4. Any interested party may, within six weeks from the day after the publication of the request, lodge a petition with the District Court in order to object against the provision of the duplicate.
- 5. If no objection is made in time or if the objection is denied in a final and binding court order, then de duplicate will be provided against payment of its cost price. The duplicate shall replace the lost share certificate. After the duplicate has been handed over, no rights can be derived from the share certificate which has been replaced.
- 6. The present Article does not apply insofar the articles of incorporation of the Open Corporation ('naamloze vennootschap') enclose a system to replace lost share certificates.

Article 2:87 Restrictions on the transferability of shares
- 1. The articles of incorporation may restrict the transferability of registered shares. This restriction may not be such that a transfer is impossible or extremely difficult. The same applies to the apportionment of shares which belong to a community of property. A transfer in violation of a restriction is invalid.
- 2. If the articles of incorporation subject a transfer of shares to the approval of a body of the Corporation or of a third party, the approval is deemed to have been granted if no decision is given on a request for such an approval within a period set for this purpose in the articles of incorporation not exceeding three months, or if the shareholder, at the moment on which he received the rejection of his request for an approval, has not at the same time received a list of one or more possible candidates who are willing to buy the shares to which his request relates. The arrangement for the sale of shares to such possible candidates must be such that the shareholder, who demands so, obtains a price equal to the value of the share or shares to be transferred, as valuated by one or more independent experts.
- 3. Where the articles of incorporation provide that a shareholder, who wants to dispose of one or more of his shares, must offer those shares first to his co-shareholders or to a third party to be appointed by a body of the Corporation, the arrangement must be such that the shareholder, who demands so, obtains a price equal to the value of the share or shares to be transferred, as valuated by one or more independent experts. The shareholder remains entitled to withdraw (revoke) his offer, provided that this is done within one month after he has obtained knowledge of the candidates to whom he may sell all the shares to which his offer relates, and at what price. If it has been ascertained that not all of the shares to which the offer relates will be bought (by those candidates), the offeror may freely transfer all shares during a period set in the articles of incorporation of at least three months, to be calculated from the moment of that ascertainment.
- 4. The Corporation itself may only be a candidate as referred to in paragraph 2 and 3 with the consent of the shareholder.
- 5. Provisions in the articles of incorporation regarding the transferability of shares shall not apply if the shareholder by law is required to transfer his share to a previous shareholder.

Article 2:87a Obligation of a shareholder to offer and transfer his shares to someone else
- 1. The articles of incorporation may provide that the shareholder, in specific situations defined for this purpose in the articles of incorporation, has the obligation to offer and transfer his shares to someone else. The articles of incorporation may specify in such event that, as long as the shareholder does not comply with his obligation to offer or transfer his shares to someone else, his right to vote, to addend the General Meeting and to receive distributions will be suspended.
- 2. The articles of incorporation may provide that, if a shareholder has not complied within a reasonable period with his obligation to offer or transfer his shares as imposed on him by those articles, the Corporation will be irrevocably authorized to offer and transfer the shares in his name to someone else. When there are no candidates to whom the shareholder could transfer his shares in accordance with the arrangement in the articles of incorporation, the Corporation shall not be authorized to represent the shareholder in the before meant way, and the shareholder shall be released irrevocably from the provisions meant in paragraph 1.
- 3. The arrangement must be such that the shareholder, who demands so, obtains a price equal to the value of his share or shares, as valuated by one or more independent experts.

Article 2:87b Quality requirements for a shareholder
- 1. The articles of incorporation may provide that the right of a shareholder to vote, to addend the General Meeting and to receive distributions will be suspended if this shareholder does not or no longer meets one or more specific requirements defined in the articles of incorporation.
- 2. If the shareholder is unable to exercise one or more of the rights referred to in paragraph 1 because he does not or no longer meets one or more specific requirements defined in the articles of incorporation, and he is not obliged to offer and transfer his shares to someone else, then he will be released irrevocably from these requirements when the Corporation has not put forward, within three months after the shareholder has made a request to this end, one or more candidates to whom the shareholder may transfer all of his shares in accordance with an arrangement set for this purpose in the articles of incorporation.
- 3. This arrangement must be such that the shareholder, who demands so, obtains a price equal to the value of his share or shares, as valuated by one or more independent experts.

Article 2:88 Encumbrance of shares with a usufruct
- 1. The shareholder's right to encumber his share with a usufruct cannot be excluded or limited in the articles of incorporation.
- 2. The shareholder has the right to vote on shares encumbered with a usufruct.
- 3. Notwithstanding the foregoing paragraph, the right to vote belongs to the usufructuary if this has been provided when the usufruct was established, and the usufructuary is a person to whom the shares may be transferred freely. If the usufructuary is not a person to whom the shares may be transferred freely, then he shall only have the right to vote if this has been provided when the usufruct was established and both, that provision in the notarial deed of establishment and – in case of a transfer of the usufruct – the passage (transfer) of the right to vote, have been approved by the body of the Corporation that is designated in the articles of incorporation to approve an intended transfer of shares, or – if such body has not been designated in the articles of incorporation - by the General Meeting. It is possible to derogate in the articles of incorporation from the previous sentences of this paragraph. Also in the event of a usufruct as meant in Article 4:19 and 4:21 of the Civil Code, the right to vote shall belong to the usufructuary, unless something else has been provided when the usufruct was established, either by the parties themselves or by the Subdistrict Court on the basis of Article 4:23, paragraph 4, of the Civil Code.
- 4. The shareholder without a right to vote, and the usufructuary with a right to vote, have the rights which the law provides to holders of depository receipts issued for shares in collaboration with the Corporation*). The usufructuary without a right to vote has these rights, unless they have been denied to him when the usufruct was established or in the articles of incorporation of the Corporation.
- 5. If the articles of incorporation of the Corporation do not provide otherwise, the shareholder also has the rights arising from a share with respect to the acquisition of shares, on the understanding that the value of those rights must be compensated to the usufructuary insofar he is entitled thereto under the usufruct**).

*) See for these rights in particular the Articles 2:102, 2:110, 2:113, 2:114, 2:117, 2:329, 2:346 and 3:259.
**) The usufructuary is entitled to the fruits (benefits) of the shares, like dividends. However, when such dividends are distributed in the form of issued additional shares (stock dividend), these shares shall belong to the shareholder (unless the articles of incorporation provide otherwise). But in that event the shareholder has the obligation to pay the value of those shares to the usufructuary.

Article 2:89 Encumbrance of shares with a pledge
- 1. The shareholder's right to encumber his share to bearer with a pledge cannot be excluded or limited in the articles of incorporation. Registered shares may be encumbered with a pledge as far as the articles of incorporation do not provide otherwise.
- 2. The shareholder has the right to vote on pledged shares.
- 3. Notwithstanding the foregoing paragraph, the right to vote belongs to the pledgee if this has been provided when the pledge was established, and the pledgee is a person to whom the shares may be transferred freely. If the pledgee is not a person to whom the shares may be transferred freely, then he shall only have the right to vote if this has been provided when the pledge was established, and this provision in the notarial deed of establishment has been approved by the body of the Corporation that is designated in the articles of incorporation to approve an intended transfer of shares, or – if such body has not been designated in the articles of incorporation - by the General Meeting. When someone else acquires the rights of the pledgee, he shall only have the right to vote if the passage (transfer) of this right to him has been approved by the body of the Corporation meant in the previous sentence or, in the absence of such a body, by the General Meeting. It is possible to derogate in the articles of incorporation from the three previous sentences.
- 4. The shareholder without a right to vote, and the pledgee with a right to vote, have the rights which the law provides to holders of depository receipts issued for shares in collaboration with the Corporation*). The pledgee without a right to vote has these rights, unless they have been denied to him when the pledge was established or when the pledge passed to someone else, or when they have been denied to him in the articles of incorporation of the Corporation.
- 5. The provisions in the articles of incorporation regarding the passage and transfer of shares shall apply to the passage and transfer of shares by the pledgee and to an acquisition of the pledged shares by the pledgee himself, on the understanding that the pledgee exercises all rights in respect of the passage and transfer of shares belonging to the shareholder, and that he performs all of the shareholder's obligations in connection therewith.
- 6. If a pledge has been established in accordance with Article 2:86, paragraph 4, then the rights under that Article shall only belong to the pledgee after the pledge has been acknowledged by the Corporation or has been officially served on the Corporation.

*) See for these rights in particular the Articles 2:102, 2:110, 2:113, 2:114, 2:117, 2:329,, 2:346 and 3:259.

Article 2:89a Corporation itself acquires a pledge on its own shares
- 1. An Open Corporation ('naamloze vennootschap') may only acquire a pledge on its own shares (i.e. shares it has issued itself) or on depositary receipts issued by it for such shares, when:
a. the to be pledged shares are fully paid up;
b. the nominal amount of the to be pledged own shares and depository receipts, together with the nominal amount of the own shares and depository receipts that are already held by the Corporation or on which the Corporation already has acquired a pledge, do not amount to more than one tenth of the issued share capital, and;
c. the General Meeting has approved the pledge agreement.
- 2. The present Article does not apply when a financial enterprise as meant in the Financial Supervision Act, that is permitted to conduct a banking business in the Netherlands pursuant to that Act, acquires in the normal course of its business a pledge on (its own) shares or depository receipts. For the purpose of Article 2:98, paragraph 2, and 2:98a, such shares and depository receipts are not taken into consideration.

Article 2:90 Liability of previous shareholders
- 1. After a transfer or apportionment of a not fully paid up share, each of the previous shareholders remains jointly and severally liable towards the Open Corporation ('naamloze vennootschap') for the amounts that still have to be paid up on the share. The Board of Directors may, jointly with the Supervisory Board, release a previous shareholder from any further liability by means of an authentic or registered private deed; in such case, however, the shareholder remains liable for amounts which have to be paid on the share on account of an additional call up made within one year after the day on which the authentic deed was executed or, respectively, on which the private deed was registered.
- 2. If a previous shareholder makes a payment to the Corporation, he acquires the rights which the Corporation could exercise against the previous shareholders.

Article 2:91 [repealed on 01.01.1992]

Article 2:91a Information duty when a shareholder holds the entire share capital of the Corporation
- 1. The holder of shares to bearer who has acquired all shares in the capital of the Corporation, informs the Corporation thereof in writing within eight days after his last acquisition.
- 2. The holder of shares to bearer who no longer holds all shares in the capital of the Corporation because a third person has acquired one or more of his shares, informs the Corporation thereof in writing within eight days after the moment on which he no longer holds all shares. If the holder of all shares dies or ceases to exist as a result of a merger or split up, the acquiring parties inform the Corporation thereof in writing within one month after the death, respectively, the merger or split up.
- 3. If all shares in the capital of the Corporation belong to a marital community of property or to a community of property of a registered partnership, then for the purpose of the present Article the Corporation is deemed to have one single shareholder, while each of the co-proprietors has the obligation to inform the Corporation as meant in the present Article.
- 4. For the purpose of the present Article, shares held by the Corporation or its subsidiaries are not taken into account.

Article 2:92 Equal rights for shareholders (and holders of depository receipts)
- 1. Insofar the articles of incorporation do not provide otherwise, all rights and obligations attached to shares are equal in proportion to their nominal amount.
- 2. The Open Corporation ('naamloze vennootschap') shall treat the shareholders, respectively, the holders of depository receipts who are in the same position, in the same way.
- 3. The articles of incorporation may provide that particular rights in respect of exercising control in the Corporation, as specified in the articles of incorporation, are attached to shares of a certain type (class).

Article 2:92a Buy out of minority shareholders
- 1. The person who, as a shareholder, has provided for his own account at least 95% of the issued share capital of the Open Corporation ('naamloze vennootschap'), may file a legal claim against the other shareholders to demand a transfer of their shares to him (the plaintiff). The same applies if two or more group companies together have provided this part of the issued share capital and they jointly file a legal claim to demand a transfer of the shares to one of them.
- 2. The Enterprise Chamber ('Ondernemingskamer') of the Amsterdam Court of Appeal shall decide in first instance on a legal claim as referred to in the previous paragraph. Only an appeal in cassation is available against its decision.
- 3. If one or more of the defendants are in default of appearance, the court must of its own motion examine whether the plaintiff or plaintiffs meet the requirements set out in paragraph 1.
- 4. The court shall reject the legal claim in favour of all defendants, if one of the defendants, despite the compensation, would suffer a serious material loss as a result of the transfer*), or if one of the defendants holds a share to which, according to the articles of incorporation, particular rights are attached in respect of the exercise of control in the Corporation, or if the plaintiff towards one of the defendants has waived his right to file the before meant legal claim.
- 5. If the court finds that paragraph 1 and 4 do not prevent the awarding of the legal claim, it may order that one or three experts make a report about the value of the to be transferred shares. The first three sentences of Article 2:350, paragraph 3, and Articles 2:351 and 2:352 shall apply. The court shall determine the price of the to be transferred shares on the basis of their value on a specific day set by the court. As long as and to the extent that the fixed price has not been paid, this price will be raised with an interest, equal to the statutory interest, running as of that day until the day of transfer; distributions on the shares that have been made payable during that period, shall be used, on the pay day, for a partial payment of the price.
- 6. When the court awards the legal claim, it shall order the party who filed the legal claim to acquire the shares to pay the fixed price with interest to those to whom these shares belong or will belong [like heirs or buyers] against delivery by those persons of the unencumbered shares. The court decides on the costs of proceedings as it regards appropriate. No costs of proceedings can be imposed on a defendant who is in default of appearance.
- 7. When the judicial decision to transfer the shares has become final and binding, the party who filed the legal claim to acquire the shares shall inform the holders of the to be transferred shares, of whom he knows the address, in writing about the day and place of payment and about the price that will be paid. He shall publish this information also in a national daily newspaper, unless all relevant addresses are known to him.
- 8. The party who filed the legal claim to acquire the shares is always able to release himself from the obligations referred to in paragraphs 6 and 7, by depositing the fixed price, as determined for all of the to be transferred shares, including the accrued interest, with the Ministry of Justice, making notice at the same time of the usufructs, pledges and seizures with which the involved shares, to his knowledge, are encumbered. As a result of this last notification a seizure attached to the shares passes over (will become attached) to the right to receive payment of the deposited amounts. As a result of the before mentioned deposit, the shares will pass unencumbered to the party who filed the legal claim to acquire them, whereas a possible usufruct or pledge on the shares passes over to (shall become established on) the right to receive payment of the deposited amounts. No rights against the Corporation can be derived from distributions which have been made payable on share certificates and dividend warrants after the shares have passed to the party who filed the legal claim to acquire them. The acquiring party shall, at that moment, give notice of the deposit made with the Ministry of Justice and of the price for each share in the way meant in paragraph 7.

*) For instance when the Corporation has engaged itself towards one of the defendants not to compete with his business as long as he is a shareholder of the Corporation, or when one of the defendants, if he should transfer his block of shares, would have to pay Income Tax because he had a so called 'serious interest' in the share capital over the last five years (a substantial interest is involved if a natural person – whether or not together with his partner – own at least 5% of the shares, share options or profit-sharing certificates in an Open Corporation ('naamloze vennootschap') or Closed Corporation ('besloten vennootschap') or in a cooperative; in that situation the income from a substantial interest may be subject to 25% income tax).

Section 2.4.3 The capital of an Open Corporation

Article 2:93 Juridical acts performed in the name of a still to be formed Open Corporation
- 1. It is possible to perform juridical acts in the name of an Open Corporation ('naamloze vennootschap') which still has to be formed (incorporated); from such juridical acts, however, can only arise rights and obligations for the Corporation when it has ratified these juridical acts after its formation (incorporation), either explicitly or tacitly, or when it has become engaged (bound) due to paragraph 4.
- 2. The persons who have performed a juridical act in the name of a still to be formed Corporation, are jointly and severally liable for that act until the Corporation has ratified it after its formation (incorporation), unless the contrary has been stipulated explicitly in respect of that juridical act.
- 3. If the Corporation has ratified the juridical act but fails to perform the obligations which arise from it, then the persons who have acted in the name of the still to be formed Corporation are jointly and severally liable for the damage which a third person suffers as a result, if they knew or reasonably could have known that the Corporation could not comply with these obligations, all without prejudice to any possible liability of the Directors on account of a ratification. The knowledge that the Corporation could not comply with its obligations, is presumed to be present when the Corporation is declared bankrupt within one year after its formation (incorporation).
- 4. In the notarial deed of incorporation the founders (incorporators) can only engage (bind) the Corporation directly to the following juridical acts: the issuance of shares, the acceptance of contributions paid up on those shares, the appointment of Directors, the appointment of Supervisory Directors and the performance of juridical acts as meant in Article 2:94, paragraph 1*). If a founder (incorporator) has observed insufficient diligence in respect thereof, then Articles 2:9 and 2:138 shall apply accordingly.

*) In the notarial deed of incorporation the founders usually also ratify explicitly, in the name of the formed legal person, all juridical acts that have been performed prior to that moment in the name and on behalf of the still to be formed legal person.

Article 2:93a Bank declaration
- 1. If money is paid up on shares prior to or at the formation (incorporation), then one or more declarations must be attached to the notarial deed of incorporation, indicating that the amounts which will be paid to the Corporation for shares to be issued upon its formation (incorporation):
a. will be at the disposal of the Open Corporation ('naamloze vennootschap') immediately after its formation (incorporation), or;
b. remained at one single moment, not more than five months prior to the formation (incorporation), on a separate account which, after the formation (incorporation), will be exclusively at the disposal of the Open Corporation ('naamloze vennootschap'), provided that the Open Corporation ('naamloze vennootschap') accepts these payments in the notarial deed of incorporation.
- 2. If a payment is made in foreign currency, then the declaration must show which amount could be converted freely into Dutch currency on a day of which the exchange rate was decisive for the obligation to pay up the shares as specified in Article 2:80a, paragraph 3.
- 3. A declaration as referred to in paragraph 1 may be issued only by a financial enterprise as meant in the Financial Supervision Act, that is permitted to conduct a banking business in the European Union or in a State which is a party to the Agreement on the European Economic Area. The declaration may be issued only to a notary.
- 4. Where, prior to the formation (incorporation), amounts have been withdrawn from the account meant in paragraph 1, under point (b), the founders (incorporators) are jointly and severally liable towards the Corporation for the reimbursement of those amounts, until the Corporation has explicitly ratified the withdrawals.
- 5. The notary must immediately notify the bank, from which he received the declaration, of the formation (incorporation). When the formation (incorporation) is cancelled, he must return the declaration to that bank.
- 6. Where, after the formation (incorporation), a payment has been made in foreign currency, the Corporation shall deposit, within two weeks after that payment, a declaration as referred to in paragraph 2 of a bank meant in paragraph 3 at the office of the commercial register.

Article 2:94 Juridical acts that may be burdensome for the Open Corporation
- 1. The following juridical acts must be included in full either in the notarial deed of incorporation itself, or in an original document or a certified extract thereof attached to that deed and to which the notarial deed of incorporation refers:
a. juridical acts performed in connection with the subscription for shares that impose special obligations on the Open Corporation ('naamloze vennootschap');
b. juridical acts performed in connection with the acquisition of shares on another basis than on which the public may participate in the share capital of the Open Corporation ('naamloze vennootschap');
c. juridical acts performed with the intention to provide some advantage to a founder of the Open Corporation ('naamloze vennootschap') or to a third person involved at its formation (incorporation);
d. juridical acts performed to bring in another contribution than money.
If the previous sentence has not been observed, then the before mentioned juridical acts cannot impose any obligations on the Corporation, nor can they grant any rights to the Corporation.
- 2. After the formation (incorporation), the juridical acts meant in the previous paragraph may only be performed without the approval of the General Meeting if and to the extent that the articles of incorporation explicitly have empowered the Board of Directors to perform such juridical acts.
- 3. The agreements referred to in Article 2:80, paragraph 2, are excluded from what is provided in the present Article.

Article 2:94a Valuation of a contribution in kind made to the Corporation upon its formation
- 1. If, at the formation (incorporation), another contribution than money has been agreed as consideration for allotted shares, then the founders (incorporators) must make a description of what has been contributed, with mention of the value attributed to the contributed assets and of the valuation methods used. These methods must be in accordance with generally accepted valuation standards. The description must relate to the condition (state) of what has been contributed on a day not more than six months prior to the formation (incorporation). The description must be signed by all founders (incorporators) and must be attached to the notarial deed of incorporation.
- 2. An auditor (accountant) as meant in Article 2:393, paragraph 1, must issue an audit report with regard to the description of the contributions, which report will be attached to the notarial deed of incorporation. In this report the auditor (accountant) states that, according to generally accepted valuation standards, the value of what has been contributed equals at least the amount in money that must be paid up for the allotted shares. If it has become known that the value has decreased considerably after the moment on which the description was made, then a second audit report is required.
- 3. The description and the audit report are not required if this has been provided in the articles of incorporation in respect of:
a. contributions existing of transferable securities (stock market shares) or money market instruments as referred to in Article 1:1 of the Financial Supervision Act, provided that these transferable securities (stock market shares) and money market instruments are valuated at the weighted average price at which they have been traded on a regulated market as meant in Article 1:1 of the Financial Supervision Act during a period of three months prior to the effective date of contribution;
b. contributions other than money, not being transferable securities (stock market shares) or instruments as referred to in point (a), that have been valuated by an independent person who, according to his education and work experience, is an expert in making such valuations, provided that his expert valuation is made in accordance with generally accepted valuation standards, and that the value of what is contributed is assessed on a day not more than six months prior to the effective date of contribution.
c. contributions other than money, not being transferable securities (stock market shares) or instruments as referred to in point (a), of which the value is derived from annual accounts adopted for the last accounting year prior to the year of contribution, and which have been subject to an audit in accordance with Directive 2006/43/EC of the European Parliament and Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC, and repealing Council Directive 84/253/EEC.
- 4. If, prior to the formation (incorporation), it has become known that the valuation price, which was used as basis for the calculation, was affected by exceptional circumstances due to which the value of the contributed securities (stock market shares) or instruments as referred to in paragraph 3, under point (a), will be significantly different on the effective date of contribution, or if, prior to the formation (incorporation), it has become known that the value of the contributions meant in paragraph 3, under point (b) or (c), will be significantly different on the effective date of contribution on account of new extraordinary circumstances, then the founders (incorporators) must make a description after all, which is to be signed by all founders (incorporators), and with regard to which an audit report as referred to in paragraph 2 has to be issued. The description and audit report must be attached to the notarial deed of incorporation. Where the contribution is made after the formation (incorporation), while it has become known in the period between the formation (incorporation) and the effective date of contribution that circumstances as meant in the first sentence have occurred, the Board of Directors must make a description after all, with regard to which an audit report as referred to in paragraph 2 has to be issued.
- 5. If, at the formation (incorporation), another contribution than money has been agreed as consideration for allotted shares, and paragraph 3 has been applied, then the Corporation shall deposit, within one month after the effective date of contribution, a declaration of the founders (incorporators) at the office of the commercial register; this declaration must contain a description of the contribution, with mention of the value attributed to the contributed assets and of the valuation methods used. In this declaration must be mentioned also that the attributed value at least equals the amount in money that must be paid up for the allotted shares, and that no new extraordinary circumstances have occurred in the period between the valuation day and the effective date of contribution. The declaration must be signed by all founders (incorporators); if the signature of one or more of them is missing, this will be noted on the declaration, with mention of the reason for this.
- 6. The description and auditors report are not required if the following conditions are met*):
a. all founders (incorporators) have decided to renounce the making of a description by experts;
b. one or more legal persons to which Title 2.9 applies or which meet, according to the applicable law, the requirements of the Fourth Council Directive of the European Communities on Company Law, shall take all of the to be issued shares for a consideration (a to be made contribution) other than money;
c. each contributing legal person has, at the moment of contribution, non-distributable reserves at its disposal to the amount of the nominal value of the shares it will take; insofar this is necessary, the Board of Directors must have separated these non-distributable reserves from the distributable reserves;
d. each contributing legal person declares that it will place at the disposal of the Open Corporation ('naamloze vennootschap') at least the nominal value of the shares it will take, in order to enable the Corporation to pay off the debt-claims of third persons that arise in the period between the issuance of the shares and one year after the day on which the adopted annual accounts of the Corporation for the accounting year in which the contribution was made, have been deposited at the office of the commercial register, insofar the Corporation cannot satisfy these debt-claims and the involved creditors have reported their debt-claims in writing, within two years after the day on which the annual accounts were deposited, to one of the contributing legal persons.
e. each contributing legal person has deposited at the office of the commercial register its last adopted balance sheet with explanatory notes, and not more than eighteen months have passed since the balance sheet date;
f. each contributing legal person separates a reserve to the amount of the nominal value of the shares it will take, from the reserves of which the nature does not oppose to such a separation.
g. the Corporation reports the decision meant in point (a) to the office of the commercial register, and every contributing legal person reports its declaration as referred to in point (d) to the same office.
- 7. If the previous paragraph has been applied, a contributing legal person may not, during the period meant in that paragraph under point (d), dispose of the shares that it has received in return for its contribution, and it must, up until two years after that period, maintain the reserve meant in that paragraph under point (f). Afterwards, this reserve must be maintained to the amount of the still outstanding debt-claims that were reported in the way as mentioned in the previous paragraph under point (d). The initial reserve will be reduced with payments made on these reported debt-claims*).
- 8. The contributing legal person and all of the creditors meant in paragraph 6, under point (d), may request the Subdistrict Court in whose territory the domicile of the Corporation is located, to place the involved debt-claims of the creditors of the Corporation under a fiduciary administration of property, which has as purpose to satisfy these debt-claims from the amounts which have been placed at the disposal of the Corporation pursuant to paragraph 6, under point (d). Insofar this is necessary, the provisions of the Bankruptcy Act regarding the verification of debt-claims and the liquidation (winding up) of property shall apply accordingly. A creditor cannot set off his debt-claim (demandable of the Corporation) against a debt that he owes to a contributing legal person. If a debt-claim subject to a fiduciary administration of property passes to someone else, it will remain under that fiduciary administration. The same applies to a foreclosure of such a debt-claim, except where it concerns the recovery of debts resulting from acts performed by the legal administrator in the exercise of his duties. The Subdistrict Court shall regulate the powers and remuneration of the legal administrator; it may change its court order at all times*).

*) The provisions in paragraph 6 – 8 contain an exemption to the rules that apply when a contribution other than money is made to pay up allotted shares that have been issued by an Open Corporation ('naamloze vennootschap'). This exemption is based on Article 10(4) of the Second Council Directive of 13 December 1976, which tried to simplify a legal reorganisation of a concern (group of affiliated corporations), by making it possible to create subsidiaries in the form of an Open Corporation ('naamloze vennootschap') more easily. It is, however, very strict and complicated. In practice it is hardly ever used, also because subsidiaries are generally formed as Closed Corporations ('besloten vennootschappen').

Article 2:94b Valuation of a contribution in kind made to the Corporation after its formation
- 1. If, after the formation (incorporation), another contribution than money has been agreed as consideration for allotted shares, the Corporation shall make a description, in accordance with Article 2:94a, paragraph 1, of what has been contributed. The description must relate to the condition (state) of what has been contributed on a day not more than six months prior to the day on which the allotted shares are taken or on which the additional contribution other than money must have been received by the Corporation or on which such contribution has been agreed upon. The description must be signed by all Directors; if the signature of one or more of them is missing, this will be noted on the description, with mention of the reason for this.
- 2. Article 2:94a, paragraph 2, applies accordingly.
- 3. In the situations meant in Article 2:94a, paragraph 3, under point (a), (b) and (c), the Board of Directors may decide to renounce the making of a description and of an audit report. If, prior to the effective date of contribution, it has become known that circumstances have occurred as referred to in Article 2:94a, paragraph 4, first sentence, then the Board of Directors must make a description after all, with regard to which an audit report as meant in Article 2:94a, paragraph 2, has to be issued.
- 4. If, after the formation (incorporation), another contribution than money has been agreed as consideration for allotted shares, and paragraph 3 has been applied, then the Corporation shall deposit, not later than eight days prior to the effective date of contribution, an announcement at the office of the commercial register; this announcement must contain a description of the contribution, with mention of the value attributed to the contributed assets, the valuation methods used, the names of the persons making the contribution, the amount of the issued share capital that has been paid up in consequence thereof and the date of the resolution for the issuance of shares meant in Article 2:96, paragraph 1. In this announcement must be mentioned also that the attributed value at least equals the amount in money that must be paid up for the allotted shares, and that no new extraordinary circumstances have occurred in regard of the valuation of the contribution. The notification must be signed by all Directors; if the signature of one or more of them is missing, this will be noted in the announcement, with mention of the reason for this. Within one month after the effective date of contribution, the Board of Directors shall deposit a declaration at the office of the commercial register, in which is mentioned that, in regard of the valuation, no new extraordinary circumstances have occurred in the period between the day on which the announcement meant in the first sentence has been deposited and the effective date of contribution. The declaration must be signed by all Directors; if the signature of one or more of them is missing, this will be noted on the declaration, with mention of the reason for this.
- 5. When a description and audit report as referred to in paragraph 3, second sentence, remains absent and the contribution is made according to Article 2:94a, paragraph 3, under point (b) or (c), then one or more shareholders, who on the day of the resolution for the issuance of shares as meant in Article 2: 96, paragraph 1, represent, either solely or jointly, at least 5% of the issued share capital, may request the Board of Directors to make a description after all, with regard to which an audit report as meant in Article 2:94a, paragraph 2, has to be issued. The Board of Directors shall implement this request, provided that the shareholders have notified their request to the Board of Directors at the latest on the day prior to the effective date of contribution, and that they, when they made their request, still represent 5% of the issued share capital as it was before the resolution for the issuance of shares had passed.
- 6. When all shareholders have decided to renounce the making of a description and an audit report, and the Corporation has acted in agreement with Article 2:94, paragraph 6, under point (b) up to and including (g), then no description or audit report is required, and Article 2:94a, paragraph 7 and 8, shall apply accordingly.
- 7. Within eight days after the day on which the shares were taken or on which an additional contribution other than money became due and demandable, the Corporation shall deposit an audit report in respect of the contribution, or a copy of that report, at the office of the commercial register, with mention of the names of the persons who made the contribution and of the amount of the issued share capital that has been paid up in consequence thereof.
- 8. The present Article does not apply as far as the contribution consists of shares or depository receipts for shares in another corporation or of rights or dividend-right shares (bonus shares) that may be converted in shares or depository receipts of shares in another corporation, with regard to which the Corporation has released a public offer, provided that these transferable securities or a part thereof are admitted to a regulated market or multilateral trading facility as specified in Article 1:1 of Financial Supervision Act, or to a system comparable with such regulated markets or multilateral trading facilities in a State that is not a EU Member State.

Article 2:94c Acquisition of assets from the founders of the Corporation
- 1. A juridical act performed by the Open Corporation ('naamloze vennootschap') without the approval of the General Meeting or without an audit report as meant in paragraph 3, may be nullified on behalf of the Corporation, if this juridical act:
a. necessarily implies the acquisition of assets, including debt-claims which are to be set off against a debt, that less than one year prior to the formation (incorporation) belonged to one of the founders (incorporators), and;
b. is performed within two years after the Corporation was registered for the first time in the commercial register.
- 2. If the approval of the General Meeting is requested, the Corporation shall make a description of the assets that will be acquired and of the counter performance which the Corporation has to perform in respect of this acquisition. The description must relate to the condition (state) of the described assets and counter performance on a day after the formation (incorporation). The description mentions the value which has been attributed to the involved assets and to the counter performance, and the valuation methods used. These methods must be in accordance with generally accepted valuation standards. The description must be signed by all Directors; if the signature of one or more of them is missing, this will be noted on the description, with mention of the reason for this.
- 3. Article 2:94a, paragraph 2, applies accordingly, on the understanding that the audit report states that, according to generally accepted valuation standards, the value of the assets that will be acquired equals at least the value of the counter performance.
- 4. Article 2:94b, paragraph 3, applies accordingly. Where a juridical act has been performed under the application of the preceding sentence, it cannot be nullified on the basis of paragraph 1 on the ground that an audit report as meant in paragraph 3 of the present Article is absent. Article 2:94b, paragraph 4, applies accordingly, on the understanding that the date of the juridical act referred to in paragraph 1 must be mentioned in the description.
- 5. Article 2:102 applies accordingly to the obligation to deposit the documents meant in the previous paragraphs and to provide copies thereof.
- 6. Within eight days after the performance of the juridical act or after the approval by the General Meeting, if granted afterwards, the Corporation shall deposit the audit report referred to in paragraph 3, or a copy thereof, at the office of the commercial register.
- 7. The present Article does not apply to:
a. assets acquired at a public auction or at an exchange,
b. assets which, under the stipulated conditions, may be regarded to have been acquired by the Corporation in the normal conduct of its business;
c. acquisitions with regard to which an audit report as referred to in Article 2:94a, paragraph 2, has been issued;
d. acquisitions resulting from a merger or split up.

Article 2:94d [repealed on 20-01-1986]

Article 2:95 Corporation is not allowed to subscribe for its own shares
- 1 The shares of an Open Corporation ('naamloze vennootschap') may not be subscribed for by that Corporation itself.
- 2. Shares taken by the Corporation in violation of the previous paragraph, pass at the moment on which they are taken to the Directors jointly. Each Director is jointly and severally liable for the full payment of these shares and for the statutory interest accrued as of that moment. Where the shares were issued at the formation (incorporation), this paragraph shall apply accordingly to the founders (incorporators) jointly.
- 3. If another person subscribes for a share in his own name, but for account (on behalf) of the Corporation that issued that share, he shall be deemed to have subscribed for it for his own account.

Article 2:96 Power to issue new shares
- 1. An Open Corporation ('naamloze vennootschap') may, after its formation (incorporation), only issue shares pursuant to a resolution of the General Meeting or of another body of the Corporation designated for this purpose by a resolution of the General Meeting or in the articles of incorporation, always for a period not exceeding five years. When such a designation is made, the number of shares which may be issued by the designated body must be specified as well. The designation may be extended, each time for not more than five years. It is not possible to withdraw (revoke) a designation, unless the contrary has been provided when the designation was made.
- 2. When there are different types (classes) of shares, then a valid resolution of the General Meeting for the issuance of shares or for a designation as meant in paragraph 1, requires a prior or simultaneous approving resolution (decision) of each group of holders of shares of the same type (class) whose rights are affected by the issuance of shares.
- 3. Within eight days after a resolution of the General Meeting for the issuance of shares or for a designation as meant in paragraph 1, the Corporation deposits the full text of that resolution at the office of the commercial register.
- 4. Within eight days after each calendar quarter, the Corporation shall deposit at the office of the commercial register a report of each issuance of shares in the preceding calendar quarter, with mention of the number and type (class) of the shares issued.
- 5. The present Article shall apply accordingly to the granting of rights to subscribe for shares, but shall not apply to the issuance of shares to a person who previously already had acquired a right to subscribe for shares.

Article 2:96a Pre-emptive subscription right of shareholders
- 1. Subject to the following two paragraphs, each shareholder has a pre-emptive subscription right with regard to the issuance of new shares, and this in proportion to the total nominal amount of his shares. Unless the articles of incorporation provide otherwise, however, he has no pre-emptive subscription right with regard to shares issued for a contribution other than money. He has neither a pre-emptive subscription right with regard to shares issued to the employees of the Open Corporation ('naamloze vennootschap') or of a group company.
- 2. As far as the articles of incorporation do not provide otherwise, the holders of shares who:
a. do not or only to a limited extent participate (share) in the profits above a certain percentage of the nominal value of their shares, or;
b. do not or only to a limited extent participate (share) in a liquidation surplus above the nominal value of their shares;
have no pre-emptive subscription right with regard to newly to be issued shares.
- 3. As far as the articles of incorporation do not provide otherwise, shareholders have no pre-emptive subscription right with regard to the issuance of new shares of one of the types (classes) as referred to in the previous paragraph under point (a) and (b).
- 4. The issuance of new shares with regard to which a pre-emptive subscription right exists, and the period during which such a pre-emptive subscription right may be exercised, are published by the Corporation in the Dutch Gazette (‘Staatscourant’) and in a daily newspaper which is spread nationwide, unless all existing shares are registered and the publication is notified in writing to all shareholders at the addresses disclosed by them.
- 5. Pre-emptive subscription rights may be exercised for at least two weeks after the date of publication in the Dutch Gazette or after the written notice was sent to the shareholders.
- 6. Pre-emptive subscription rights may be limited or excluded by a resolution of the General Meeting. In the proposal for such a resolution, the reasons for the proposal and the selection of the proposed issue price must be explained in writing. Pre-emptive subscription rights may be limited or excluded also by a body of the corporation designated under Article 2:96, paragraph 1, if a resolution of the General Meeting or the articles of incorporation have designated and empowered this body for a specific period of time, not exceeding five years, to limit or exclude pre-emptive subscription rights. The designation may be extended, each time for not more than five years. It is not possible to withdraw (revoke) a designation, unless the contrary has been provided when the designation was made.
- 7. A resolution of the General Meeting to limit or exclude a pre-emptive subscription right or to make a designating, requires a majority of at least two thirds of the votes cast, if less than one-half of the issued share capital is represented at the Meeting. Within eight days after the resolution, the Corporation shall deposit the full text of that resolution at the office of the commercial register.
- 8. When rights are granted for the acquisition of to be issued new shares, the shareholders shall have a similar pre-emptive right; the preceding paragraphs shall apply accordingly. Shareholders have no pre-emptive rights with regard to shares issued to a person who previously already had acquired a right to subscribe for shares.


Article 2:96b Exemption for Investment Companies
Articles 2:96 and 2:96a do not apply to an Investment Company with Variable Capital.

Article 2:97 Allotment of shares for a smaller amount than the announced amount of issuance
In the event that new shares are issued after the formation (incorporation) under an announcement of the amount for which those shares are to be issued, while in reality only a smaller amount can be allotted, then this last amount shall be allotted only if the conditions for the issuance of shares provide for such a possibility.

Article 2:98 Acquisition by an Open Corporation of its own shares
- 1. The acquisition by an Open Corporation ('naamloze vennootschap') of not fully paid up shares in its own capital is null and void.
- 2. An Open Corporation ('naamloze vennootschap') may acquire fully paid up own shares only if it acquires these shares without payment of any counter performance (gratuitously) or if the Corporation’s equity (total assets minus liabilities), reduced with the acquisition price of the to be acquired shares, is not less than the paid and called up part of its share capital plus the reserves which must be maintained pursuant to law or the articles of incorporation. Without prejudice to what has been provided in the previous sentence, if the shares of the Corporation are admitted to a regulated market or multilateral trading facility as meant in Article 1:1 of the Financial Supervision Act, or to a system comparable with such regulated markets or multilateral trading facilities in a State that is not a EU Member State, then the nominal amount of the own shares which the Corporation shall acquire or already holds or on which it has already obtained a pledge or which are held by its subsidiary may not exceed one-half of its issued share capital.
- 3. For the requirement meant in paragraph 2 is decisive the amount of the Corporation’s equity (total assets minus liabilities) according to the last adopted balance sheet, reduced with the acquisition price for the to be acquired shares in the capital of the Corporation, reduced in addition with the amount of the loans referred to in Article 2:98c, paragraph 2, and with any distributions of profits or reserves to others that the Corporation and its subsidiaries became indebted after the balance sheet date. When more than six months have passed since the end of an accounting year without an adoption of the annual accounts, then an acquisition pursuant to paragraph 2 is not permitted.
- 4. An acquisition of own shares other than on a gratuitous basis is permitted only if and insofar as the General Meeting has authorized the Board of Directors to make such an acquisition. This authorization is valid for a maximum of five years. In derogation from the previous sentence, such an authorization shall only be valid for at the most eighteen months in the event that the shares of the Corporation are admitted to a regulated market or multilateral trading facility as meant in Article 1:1 of the Financial Supervision Act, or to a system comparable with such regulated markets or multilateral trading facilities in a State that is not a EU Member State. The General Meeting specifies in its authorization how many own shares the Corporation may acquire, the way in which they may be acquired and the limits between which the acquisition price must stay. The articles of incorporation may exclude or limit the possibility for the Corporation to acquire its own shares.
- 5. An authorization as referred to in the previous paragraph is not required if the articles of incorporation allow the Corporation to acquire its own shares for the purpose of transferring them to the employees of the Corporation or of a group company on the basis of a scheme made for these employees. These shares must be included in the price list of a stock exchange.
- 6. Paragraph 1 up to and including 4 do not apply where the Corporation acquires its own shares under universal title*).
- 7. Paragraph 2 up to and including 4 do not apply where a financial enterprise, which by virtue of the Financial Supervision Act is permitted to conduct a banking business, has acquired its own shares upon the instruction and on behalf of someone else.
- 8. Paragraph 2 up to and including 4 do not apply to an Investment Company with Variable Capital. The issued capital of such an Investment Company, reduced with the nominal amount of its own shares that are held by that Company itself, must at least amount to one tenth of its authorized share capital.
- 9. Where the word ‘shares’ is used in the present Article, this includes ‘depository receipts for shares’.

*) A Corporation may acquire its own shares under universal title as a result of a merger or split up or as an heir in the estate of a deceased person.

Article 2:98a Legal effects of an unlawful acquisition by the Corporation of its own shares
- 1. An acquisition by the Open Corporation ('naamloze vennootschap') of its own registered shares in violation of paragraph 2 up to and including 4 of the preceding Article, is null and void. The Directors are jointly and severally liable towards the alienating party who passed the shares in good faith to the Corporation and who has suffered damage as a result of the null and void acquisition.
- 2. Where the Open Corporation ('naamloze vennootschap') has acquired own shares to bearer or depository receipts issued for own shares in violation of paragraph 2 up to and including 4 of the preceding Article, these shares to bearer and depository receipts will pass, at the moment of acquisition, to the Directors jointly. Each Director is jointly and severally liable for the reimbursement to the Corporation of the acquisition price, raised with the statutory interest accrued as of that moment.
- 3. On the expiration of a period of three years after the Corporation has been converted into an Open Corporation ('naamloze vennootschap') or after it has acquired its own shares under universal title or without payment of any counter performance (gratuitously), the Corporation may no longer hold, either solely or jointly with its subsidiaries, more shares in its own capital than one tenth of the issued share capital; shares in the capital of the Corporation on which the Corporation itself has a pledge, are included in such calculation. Shares in the capital of the Corporation which are held by the Corporation itself, shall pass at the end of the three-year period to the Directors jointly. Each Director is jointly and severally liable for the obligation towards the Corporation to pay the value of the shares, as calculated at that moment, raised with the statutory interest accrued as of that moment. Where the word ‘shares’ is used in the present Article, this includes ‘depository receipts for shares’.
- 4. The preceding paragraph applies accordingly where the Corporation has acquired a not fully paid up own share under universal title that has not been disposed of or retired (eliminated and taken out of circulation) by the Corporation within three years after the moment on which it was acquired.
- 5. Paragraph 3 applies accordingly where the Corporation has acquired an own share or a depository receipt for such a share pursuant to paragraph 5 of the previous Article without authorization of the General Meeting, which share or depository receipt is held by the Corporation for more than one year.

Article 2:98b Shares in the Corporation acquired in the name of another person for account of the Corporation
When another person acquires in his own name, yet for account of the Open Corporation ('naamloze vennootschap'), one or more shares in the capital of the Corporation or one or more depository receipts for such shares, he must, without delay, transfer these shares and depository receipts to the Corporation against payment. If these shares are registered shares, then paragraph 2 of the previous Article shall apply accordingly.

Article 2:98c Prohibitions for the Corporation in connection with the taking or acquisition of its own shares by others
- 1. An Open Corporation ('naamloze vennootschap') may not provide security (collateral), give a price guarantee for shares, vouch for third persons otherwise or make itself jointly and severally liable for a third person’s debt in addition to or instead of that third person or otherwise, if this is done for the purpose of a subscription for or the acquisition of its own shares or depositary receipts for such shares by others. This prohibition also applies to its subsidiaries.
- 2. A Corporation and its subsidiaries may not grant loans if this is done for the purpose of a subscription for or the acquisition of its own shares or depositary receipts for such shares by others, unless the Board of Directors has resolved (decided) to do so and the following requirements are met:
a. the granting of the loan, including the interest received by the Corporation and the securities (collaterals) provided to the Corporation, are in agreement with fair market conditions;
b. the Corporation’s equity (total assets minus liabilities), reduced with the amount of the granted loan, is not less than the paid and called up share capital plus the reserves which must be maintained pursuant to law or the articles of incorporation;
c. the creditworthiness (solvency) of the third party or, if it concerns an agreement between more than two parties, of each involved party, has been carefully examined;
d. where the loan is granted for the purpose of a subscription for shares within the framework of an increase of the issued share capital of the Corporation or for the purpose of obtaining shares in the Corporation’s capital, the price for which the shares are taken or acquired must be fair.
- 3. For the requirement meant in paragraph 2, under point (b), is decisive the amount of the Corporation’s equity (total assets minus liabilities) according to the last adopted balance sheet, reduced with the acquisition price for the to be taken or acquired shares in the capital of the Corporation, reduced in addition with any distributions of profits or reserves to others that the Corporation and its subsidiaries became indebted after the balance sheet date. When more than six months have passed since the end of an accounting year without an adoption of the annual accounts, then a subscription or acquisition pursuant to paragraph 2 is not permitted.
- 4. The Corporation maintains a non-distributable reserve equal to the amount of the granted loans referred to in paragraph 2.
- 5. A resolution (decision) of the Board of Directors to grant a loan as referred to in paragraph 2, is subject to the prior approval of the General Meeting. The resolution of the General Meeting for that approval is taken by a majority of at least two thirds of the votes cast, if less than one-half of the issued share capital is represented at the meeting. In derogation from the previous sentence, such a resolution has to be taken by a majority of at least 95% of the votes cast, in the event that the shares of the Corporation are admitted to a regulated market or a multilateral trading facility as meant in Article 1:1 of the Financial Supervision Act.
- 6. When the approval referred to in paragraph 5 is requested to General Meeting, this will be reported in the convening notice for that General Meeting. Concurrent with the convening notice, a report is deposited at the office of the commercial register for inspection by the shareholders and holders of depository receipts for shares issued in collaboration with the Corporation, mentioning the reasons for granting the loan, the importance involved with that transaction for the Corporation, the terms and conditions on which the loan will be granted, the price for which the shares will be taken or acquired by the third person, and the risks connected to the loan in respect of the liquidity and solvency of the Corporation.
- 7. Within eight days after the approval referred to in paragraph 5 has been given, the Corporation shall deposit a report as meant in paragraph 6, or a copy thereof, at the office of the commercial register.
- 8. Paragraph 1 up to and including 7 do not apply if shares or depositary receipts for shares are taken or acquired by or for employees of the Corporation or of a group company.
- 9. Paragraph 1 up to and including 7 do not apply to a financial enterprise as meant in the Financial Supervision Act, that is permitted to conduct a banking business in the Netherlands pursuant to that Act, insofar that enterprise acts in the ordinary course of its business.

Article 2:98d Acquisition of shares in the Corporation by its subsidiaries
- 1. A subsidiary may not, for its own account, subscribe for or cause the subscription for shares in the capital of an Open Corporation ('naamloze vennootschap'). A subsidiary may only, for its own account, acquire or cause the acquisition of such shares as far as the Corporation itself is permitted to acquire its own shares on the basis of Article 2:98, paragraph 1 up to and including 6.
- 2. When the previous paragraph has not been observed, the Directors of the Open Corporation ('naamloze vennootschap') are jointly and severally liable towards the involved subsidiary for reimbursement of the acquisition price, raised with the statutory interest accrued as of the moment on which the shares were taken or acquired in violation of the provisions of paragraph 1. The payment of this compensation is made against the transfer of the involved shares. A Director is not obliged to reimburse the acquisition price if he proves that the Corporation is not to blame for the fact that the subsidiary has taken or acquired the shares in violation of the provision of paragraph 1.
- 3. A subsidiary may no longer hold, or cause to hold, for its own account more shares in the capital of an Open Corporation ('naamloze vennootschap'), either solely or jointly with that Corporation or its other subsidiaries, than one tenth of the issued share capital of that Corporation, as soon as three years have passed:
a. since it became a subsidiary;
b. since the Corporation of which it is a subsidiary was converted into an Open Corporation ('naamloze vennootschap'), or;
c. since it acquired, as subsidiary, shares in the capital of the Open Corporation ('naamloze vennootschap') under universal title or without payment of a counter performance (gratuitously).
The Directors of the Open Corporation ('naamloze vennootschap') are jointly and severally liable towards the involved subsidiary for compensating the value of the shares which that subsidiary holds or causes to hold beyond the before mentioned limits, which value is to be calculated at the end of the three-year period, raised with the statutory interest accrued as of that moment. The payment of this compensation is made against the transfer of the involved shares. A Director is not obliged to pay such compensation if he proves that the Corporation is not to blame for the fact that the subsidiary still holds or causes to hold the shares beyond the before mentioned limits.
- 4. Where the word ‘shares’ is used in the present Article, this includes ‘depository receipts for shares’.

Article 2:99 Reduction of the Corporation’s capital
- 1. The General Meeting may resolve (decide) to reduce the issued share capital through a retirement (elimination) of shares or by a reduction of the nominal amount of the shares by means of an amendment of the articles of incorporation. Such a resolution must specify the shares to which it relates and the way in which the resolution is to be implemented.
- 2. A resolution for the retirement (elimination) of shares may only concern shares which the Corporation holds itself (treasury shares) or of which it holds the depository receipts (treasury receipts) as well as all of the shares of a specific type (class) with regard to which, prior to their issuance, the articles of incorporation already provided that they could be retired (redeemed and eliminated) against repayment, or shares balloted for redemption and retirement (elimination) that belong to a type (class) of shares with regard to which, prior to their issuance, the articles of incorporation already provided that they could be balloted for redemption and retirement (elimination) against repayment.
- 3. A reduction of the nominal amount of shares without repayment and without a relief from the obligation to pay up the shares must be effectuated proportionally in respect of all shares of the same class. The requirement of proportionality may be set aside with the consent of all shareholders.
- 4. A partial repayment on shares or a partial relief from the obligation to pay up the shares is only possible if this is done for the implementation of a resolution (decision) for a reduction of the nominal amount of the shares. Such a repayment or relief must be effectuated proportionally in respect of all of the shares, unless, prior to the issuance of shares of a specific type (class), the articles of incorporation already provided that a repayment or relief may be effectuated exclusively in respect of those shares; in that last event the requirement of proportionality applies to those shares. The requirement of proportionality may be set aside with the consent of all shareholders.
- 5. When there are different types (classes) of shares, then a resolution (decision) of the General Meeting for the reduction of the Corporation’s capital requires a prior or simultaneous approving resolution (decision) of each group of holders of shares of the same type (class) whose rights are affected by the resolution of the General Meeting.
- 6. A resolution of the General Meeting for the reduction of the Corporation’s capital requires a majority of at last two thirds of the votes cast, if less than one-half of the issued share capital is represented at the Meeting. This provision applies accordingly to a resolution as meant in paragraph 5.
- 7. The convening notice for a meeting where a resolution as referred to in the present Article is to be passed, reports the purpose (objective) of the reduction of the Corporation’s capital and the way in which such a reduction is to be implemented. Article 2:123, paragraph 2, 3 and 4, shall apply accordingly.

Article 2:100 Publication requirements regarding a reduction of the Corporation’s capital
- 1. The Open Corporation ('naamloze vennootschap') deposits the resolutions meant in Article 2:99, paragraph 1, at the office of the commercial register, and makes an announcement thereof in a national daily newspaper.
- 2. The Corporation must provide security (collateral) to each creditor who requests so or provide him with other guarantees in order to assure that his debt-claim will be satisfied; if the Corporation fails to comply with this provision, then the objections of the creditor as referred to in the next paragraph shall be acknowledged as valid. The provisions of this paragraph do not apply if the creditor has sufficient guarantees that his debt-claim will be performed or when the Corporation has sufficient property to assure that his debt-claim will be performed.
- 3. Within two months after the announcement meant in paragraph 1, any creditor may file a petition at the District Court through which he makes an objection against the resolution (decision) for a reduction of the Corporation’s capital, with mention of the security or other guarantee he seeks. The District Court shall reject the request if the applicant fails to make plausible that, as a result of the reduction of the Corporation’s capital, there is a legitimate doubt that his debt-claim will be satisfied, and that the Corporation has provided insufficient security or other guarantees therefore.
- 4. Before the District Court gives its decision, it may enable the Corporation to provide certain security or another kind of guarantee within a period to be set by court. If the Corporation’s capital has been reduced already, the District Court may order, upon a filed request, that security or another kind of guarantee is provided to the applicant (creditor), under a financial penalty for non-compliance.
- 5. A resolution for the reduction of the Corporation’s capital shall not take effect as long as an objection may still be filed. If an objection is filed in time, the resolution shall only take effect when the objection has been withdrawn or when the court order in which that objection was denied has become enforceable. Where the reduction of the Corporation’s capital requires an amendment of the articles of incorporation, the involved notarial deed may not be executed prior to the moment meant in the previous sentence.
- 6. If the Corporation reduces its capital to an amount not less than its own equity (total assets minus liabilities), and this reduction is made because of the loss that the Corporation has suffered, then it does not need to provide any security or another kind of guarantee, whereas the resolution shall take effect immediately.
- 7. The present Article does not apply if an Investment Company with Variable Capital resolves (decides) to retire (eliminate) its own shares, provided that it has acquired these shares lawfully.

Article 2:101 Annual accounts and annual report
- 1. Annually, within five months after the end of the accounting year of the Corporation, except when this period has been extended with at the most six months by the General Meeting in view of particular circumstances, the Board of Directors draws up the annual accounts, and deposits these documents at the office of the Corporation for inspection by its shareholders. If shares or other transferable securities, issued by the Corporation, are admitted to a regulated market as meant in the Financial Supervision Act, this period is four months after the end of the accounting year of the Corporation, without the possibility to extend it. Within the same period, the Board of Directors shall also deposit the annual report for inspection by its shareholders, unless Article 2:396, paragraph 7, or Article 2:403 applies to the Corporation. The Board of Directors of a Corporation to which Articles 2:158 up to and including 2:161 and 2:164 applies, shall send the annual accounts as well to the Works Council meant in Article 2:158, paragraph 11.
- 2. The annual accounts are signed by the Directors and the Supervisory Directors; where the signature of one or more of them is missing, this shall be reported, mentioning as well the reason for this.
- 3. The annual accounts are adopted by the General Meeting. An adoption of the annual accounts does not implicate a discharge of liability for the Directors or Supervisory Directors.
- 4. Resolutions on the basis of which the annual accounts are adopted, may not be subjected in the articles of incorporation to the approval of a body of the Corporation or of a third person.
- 5. The articles of incorporation may not contain any provision on the basis of which it is permitted to set any requirement or binding proposal for the annual accounts or for any item thereof.
- 6. The articles of incorporation may provide that another body of the Corporation than the General Meeting has the power to decide which part of the result of an accounting year shall be reserved, or how a loss shall be written-off.
- 7. Upon request, the Minister of Economic Affairs may, for compelling reasons, grant relief from the obligation to draw up, submit and adopt the annual accounts. No relief may be granted in respect of the adoption of the annual accounts of a Corporation which has issued shares or other transferable securities that are admitted to a regulated market as meant in the Financial Supervision Act.

Article 2:102 Inspection of the annual accounts at the office of the Corporation
- 1. The Open Corporation ('naamloze vennootschap') ensures that the annual accounts, the annual report and the information which has to be added pursuant to Article 2:392, paragraph 1, are available at its office as of the day on which the convening notice is given for a General Meeting for the adoption of these accounting documents. Persons holding shares in the Corporation or holding depository receipts for such shares that are issued in collaboration with the Corporation, may inspect these documents at the office of the Corporation and may obtain a free copy thereof.
- 2. Where it concerns shares to bearer or depository receipts to bearer or debentures to bearer (debts certificates) issued by the Corporation which are in circulation still, the involved documents, as far as they have to be made public, are available for inspection to everyone; a copy or extract thereof shall be provided against payment of at the most the cost price. This right ceases to exist when the involved documents are deposited at the office of the commercial register.

Article 2:103 [repealed on 31-12-2006]

Article 2:104 Writing off of deficits from the reserves
A deficit may only be written off from the statutory reserves as far is this is permitted by law.

Article 2:105 Distribution of profits
- 1. As far as the articles of incorporation do not provide otherwise, the Corporation’s profits are for the benefit of the shareholders.
- 2. The Open Corporation ('naamloze vennootschap') may only distribute its profits to its shareholders and to other persons with an entitlement to its distributable profits as far as its equity (total assets minus liabilities) exceeds the sum of the paid and called up capital plus the reserves which must be maintained pursuant to law or the articles of incorporation.
- 3. Profits are distributed after the annual accounts, from which shows that such a distribution is permitted, have been adopted.
- 4. The Corporation may make interim distributions of profits only if the articles of incorporation permit so and the requirement of paragraph 2 is met according to a to be made interim capital account. This interim capital account relates to the state of the Corporation’s property (capital) on a day not earlier than the first day of the third month before the month in which the resolution for a distribution of profits was made public. It is prepared in accordance with generally accepted valuation methods. The reserves that have to be maintained pursuant to law or the articles of incorporation have to be included in that interim capital account. The interim capital account must be signed by the Directors. Where the signature of one or more of them is missing, this shall be reported, mentioning as well the reason for this. Within eight days after the day on which the resolution for a distribution of profits has been made public, the Corporation deposits the interim capital account at the office of the commercial register.
- 5. In calculating the profit distribution, the shares which the Corporation holds in its own capital (treasury shares) shall be taken into account as well, unless the articles of incorporation provide otherwise.
- 6. In calculating the amount of the profits to be distributed on each share, only the amount of the obligatory payments on the nominal amount of the shares is taken into account, unless the articles of incorporation provide otherwise.
- 7. The articles of incorporation may provide that the claim of a shareholder does not become prescribed after a period of five years, but after a longer period. Then such a provision in the articles of incorporation shall apply accordingly to the claim of a holder of a depository receipt for a share against the shareholder.
- 8. A distribution of profits in violation of the provisions of paragraph 2 or 4 must be reimbursed by the shareholder or other person entitled to the Corporation’s profits, but only if he knew or ought to have known that this distribution was not permitted.
- 9. None of the shareholders may be excluded entirely from sharing in the profits.
- 10. The articles of incorporation may provide that the profits to which holders of shares of a specific type (class) are entitled, shall be reserved in full or in part for their benefit.

Article 2:106 [repealed on 01-09-1981]