Dutch
Civil Code
Book 2 Legal Persons
Title 2.4 Open Corporations (public limited companies)
Section 2.4.5 The Board of Directors of an Open Corporation and the supervision
of the Board of Directors
Article 2:129 Tasks and powers of the Board of Directors
- 1. Subject to
any restrictions under the articles of incorporation, the Board of Directors
is charged with the governance (management) of the Corporation
- 2. The articles
of incorporation may provide that a particular Director designated by
name or function (position), may cast more than one vote. One Director
may not cast more votes than the other Directors combined.
- 3. Resolutions
of the Board of Directors can only be subjected by or pursuant to the
articles of incorporation to the approval of a body of the Corporation.
- 4. The articles
of incorporation may provide that the Board of Directors should behave
according to the instructions of a body of the Corporation on the general
policy which is to be pursued on areas set in the articles of incorporation.
- 5. The Directors shall in the performance
of their duties direct their attention to the interests of the Corporation
and of the enterprises connected with it. *)
- 6. A Director does not participate in the
deliberations and decision-making if he has a direct or indirect personal
interest therein that is contrary to the interests meant in paragraph
5. If, as a result, no Board resolution can be passed, the resolution
shall be passed by the Supervisory Board. In the absence of a Supervisory
Board, the resolution shall be passed by the General Meeting, unless the
articles of incorporation provide otherwise.*)
- 7. If shares in the Corporation or depository
receipts for shares issued in cooperation with the Corporation are admitted
for trade to a regulated market as meant in Article 1:1 of the Financial
Supervision Act , and a Director holds shares in the Corporation or rights
have been granted to him to subscribe on or acquire shares in the capital
of the Corporation, then the Corporation shall, if it makes public (discloses)
that it has passed a resolution as meant in Article 2:107, paragraph 1,
under (a), (b) or (c) or that a public bid is announced as referred to
in Article 5 of the Decree Public Bids Wft, assess the value which the
shares or rights of the Director had, after closing of the stock exchange,
four weeks prior to the day on which this resolution has passed or a public
bid was announced. Four weeks after that resolution or, if a public bid
has been announced, for weeks after the ending of that public bid, the
value of the shares or rights shall be assessed again after closing of
the stock exchange. If the value has increased compared to the earlier
assessment, the Director has to pay that increase in value to the Corporation.
The Supervisory Board shall assess the increase in value. Where Article
2:129a is applied, the Board of Directors shall asses the increase in
value, yet without any participation of the executive Directors in the
decision-making. *)
*) In force as of 01-01-2013.
Article 2:129a Division between non-executive and executive Directors*)
- 1. The articles of incorporation may specify
that the duties of the Directors are divided between one or more non-executive
Directors and one or more executive Directors. The duty to supervise the
performance of duties by the Directors cannot be taken away from a non-executive
Director by a division of duties as meant in the previous sentence. Te
chairmanship of the Board of Directors, the making of proposals for the
appointment of a Director and the adoption (assessment) of the remuneration
of the executive Directors may not be assigned to an executive Director.
Non-executive Directors are always natural persons.
- 2. The executive Directors do not participate
in the decision-making on the adoption (assessment) of the remuneration
of executive Directors.
- 3. It is allowed to specify by or pursuant
to the articles of incorporation that one or more Directors may decide
(pass resolutions) legitimately in regard of subjects belonging to his
or their duty. When such specification is made pursuant to the articles
of incorporation, this must be done in writing.
*) In force as of 01-01-2013.
Article 2:130 Power of representation
- 1. The Board of
Directors represents the Corporation as far as the law does not provide
otherwise.
- 2. Each Director may also individually represent
the Corporation. The articles of incorporation may, however, provide that
only one or more of the Directors may represent, next and in addition
to the Board of Directors, the Corporation. The articles of incorporation
may provide furthermore that a Director only has the power to represent
the Corporation in cooperation with one or more other persons.
- 3. The power of representation of the Board
of Directors or of the Directors to whom such power is granted, either
individually or jointly with others, is always unrestricted and unconditional,
as far as the law does not provide otherwise. A legally permitted or required
restriction or condition regarding the power of representation can only
be invoked by the Corporation.
- 4. The articles
of incorporation may also grant other persons than Directors the power
to represent the Corporation.
Article 2:131 Jurisdiction in relation to the (employment) contract between
the Corporation and its Director
The District Court within whose district the Corporation is domiciled
(has its seat), has jurisdiction over all legal actions (lawsuits) based
on the contract (employment agreement) between the Open Corporation ('naamloze
vennootschap') and one of its Directors, including the legal claim
referred to in Article 2:138 of which the amount is undetermined or exceeds
€ 25,000. The same District Court has jurisdiction over applications
(requests) meant in Article 7:685 related to a contract (employment agreement)
as referred to in the first sentence of the present Article. Legal claims
(lawsuits) as meant in the first two sentences are not considered or decided
by the Subdistrict Court.
Article 2:132 Appointment of Directors
- 1. The first Directors of the Corporation
are appointed in the notarial deed of incorporation; the following (succeeding)
Directors are appointed by the General Meeting. If the Corporation has
made use of the possibility to apply Article 2:129a, the General Meeting
shall decide whether a Director is appointed as an executive or non-executive
Director. The previous two sentences do not apply if the Supervisory Board
has the right to appoint the Director pursuant to Article 2:162.
- 2. The articles of incorporation may limit
the circle of persons qualified to be appointed as Director by setting
requirements which such Directors have to meet. The requirements may be
set aside by a resolution of the General Meeting passed with two-thirds
of the votes cast which represent more than one-half of the issued share
capital.
- 3. If shares have been issued by the Corporation
or if depository receipts for such shares have been issued in cooperation
with the Corporation, and those shares and depository receipts are admitted,
for trade, to a regulated market or multilateral trading facility as referred
to 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 legal relationship between the Director
and the Corporation shall not be regarded as an employment contract.
Article 2:132a Persons who cannot be appointed as Director
- 1. The following persons cannot be appointed
as a Director of an Open Corporation (‘naamloze vennootschap’)
which at two consecutive balance sheet dates, without interruption afterwards
at two consecutive balance sheet dates, has not met at least two of the
requirements meant in Article 2:397, paragraph 1 and 2:
a. persons who are a Supervisory Director or
a non-executive Director for more than two legal persons;
b. persons who are chairman of the Supervisory
Board of a legal person or of the Board of Directors of a legal person
if the tasks of the Directors are divided between executive and non-executive
Directors.
- 2. For the purpose of the present Article:
a. a person who is a member of a supervisory
body instituted by or pursuant to the articles of incorporation of a legal
person is equated with a Supervisory Director;
b. the appointments for various legal persons
which are connected with each other in a group count as one appointment;
c. the reference to legal persons concerns:
the legal type of an Open Corporation (‘naamloze vennootschap’)
and a Closed Corporation (‘besloten venootschap’)
that at two consecutive balance sheet dates, without interruption afterwards
at two consecutive balance sheet dates, has not met at least two of the
requirements as referred to in Article 2:397, paragraph 1 and 2, and a
Foundation ('stichting') as meant in Article 2:297a, paragraph
1.
d. an executive Director is equated with a
Director within the meaning of the preamble of paragraph 1, if the tasks
of the Directors are divided between executive and non-executive Directors;
e. a temporary appointment in accordance with
Article 2:249a, paragraph 2, or Article 2:356 under (c), is not regarded
as an appointment;
f. the appointment of a member of the Supervisory
Board or a non-executive Director of a fund as meant in the Order in Council
on the basis of Article 105a of the Pension Act and Article 110a of the
he Obligatory Occupational Pension Schemes Act is counted in conformity
with the standardisation in that Order in Council.
- 3. Where an appointment is null and void
pursuant to the previous paragraphs, this has no effect on the validity
of the decision-taking (passing of resolutions) in which is participated.
Article 2:133 Nomination of candidates who might be appointed as Director
- 1. The articles of incorporation may provide
that the General Meeting shall appoint a Director from a list of nominated
candidates.
- 2. The General Meeting, however, may at all
times overrule the binding effect of such nomination by means of a resolution
passed with two-thirds of the votes cast that represent more than one-half
of the issued share capital.
- 3. If the list of nominees only mentions
one candidate for a vacancy to be filled, the resolution on the nomination
shall have the effect that this candidate is appointed, unless the binding
effect is taken from the nomination.
- 4. The preceding paragraphs shall not apply
if a Director is appointed by the Supervisory Board.
Article 2:134 Suspension or removal of a Director
- 1. Each Director may at all times be suspended
or removed (dismissed) by the body or person empowered to appoint him.
Where Article 2:129a has been applied, the Board of Directors shall at
all times be empowered to suspend an executive Director.
- 2. If the articles of incorporation indicate
that a resolution to suspend or remove (dismiss) a Director may only be
passed by an enhanced majority of the votes cast at a General Meeting
where a certain part of the capital is represented, then this enhanced
majority may not exceed two-thirds of the votes cast which represent more
than on-half of the share capital.
- 3. A judicial order to restore the contract
(employment agreement) between the Open Corporation ('naamloze vennootschap')
and its Director [see Article 7:682] cannot be rendered by the court.
- 4. The articles of incorporation must contain
provisions for the way in which the Corporation has to be governed (managed)
temporarily in the event that there are no Directors in office or that
the Directors are prevented from fulfilling their tasks. The articles
of incorporation may provide for such provisions in the event that one
or more of the Directors are not in office or are prevented from fulfilling
their tasks.
Article 2:134a Point of view of the Works Council on an appointment, suspension
or dismissal of a Director
- 1. When the Open Corporation (’naamloze
vennootschap’) has established a Works Council by virtue of
statutory provisions, the proposal for an appointment, suspension or dismissal
(discharge) of a Director shall not be presented to the General Meeting
than after the Works Council has been given the opportunity, timely prior
to the convening date referred to in Article 1:114, to determine its point
of view on it. The Works Council’s point of view is offered simultaneously
with the proposal for an appointment, suspension or dismissal (discharge)
to the General Meeting. The chairman or a member of the Works Council
assigned by him to this end may elucidate the Works Council’s point
of view at the General Meeting. The absence of that point of view does
not affect the decision-making over the proposal for the appointment,
suspension or dismissal (discharge).
- 2. For the purpose of paragraph 1, by a Works
Council is understood also the Works Council of the enterprise of a subsidiary
company, provided that the employees in service of the Open Corporation
(‘naamloze vennootschap’) and the group companies
in majority are working within the Netherlands. When there are more Work
Councils than one, the power meant in the present Article is exerted by
these Councils jointly. Where a Central Works Council has been established
for the relevant enterprise or enterprises, the before meant power belongs
to that Central Works Council.
Article 2:135 Remuneration policy with regard to Directors
- 1. The Corporation shall have a policy in
regard of the remuneration of the Board of Directors. The policy is adopted
by the General Meeting. Such remuneration policy at least includes the
matters described in Articles 2:383c up to and including 2:383e, to the
extent that these concern the Board of Directors.
- 2. When the Open Corporation (’naamloze
vennootschap’) has established a Works Council by virtue of
statutory provisions, the proposal for the assessment of the remuneration
policy shall not be presented to the General Meeting than after the Works
Council has been given the opportunity, timely prior to the convening
date referred to in Article 1:114, to determine its point of view on the
matter. The Works Council’s point of view is offered simultaneously
with the proposal for the assessment of the remuneration policy to the
General Meeting. The chairman or a member of the Works Council assigned
by him to this end may elucidate the Works Council’s point of view
at the General Meeting. The absence of that point of view does not affect
the decision-making over the proposal for the assessment of the remuneration
policy.
- 3. For the purpose of paragraph 2, by a Works
Council is understood also the Works Council of the enterprise of a subsidiary
company, provided that the employees in service of the Open Corporation
(‘naamloze vennootschap’) and the group companies in majority
are working within the Netherlands. When there are more Work Councils
than one, the power meant in the present Article is exerted by these Councils
jointly. Where a Central Works Council has been established for the relevant
enterprise or enterprises, the before meant power belongs to that Central
Works Council.
- 4. The remuneration of the Directors is determined
by the General Meeting in conformity with the policy referred to in paragraph
1, unless the articles of incorporation have designated another body of
the Corporation for this purpose.
- 5. If the articles of incorporation provide
that another body of the Corporation than the General Meeting determines
the remuneration of the Directors, then this body shall present to the
General Meeting for approval all proposals for remunerations which are
to be paid in the form of shares or rights to acquire shares. The proposal
should at least determine how many shares or rights to subscribe for shares
may be granted to the Directors and the conditions for granting such shares
or rights, and for possible amendments. The lack of approval of the General
Meeting does not affect the power of representation of the involved body
of the Corporation.
- 5a. If in regard of a Corporation as referred
to in Article 2:383b, the adoption of the annual accounts has been mentioned
as a subject in the convening notice meant in Article 2:114, paragraph
1, then the specifications made by the Corporation referred to in Article
2:383c up to and including 2:283e are mentioned jointly as a separate
subject in the convening notice prior to the adoption of the annual accounts.
- 6. The body referred to in paragraph 4 is
authorized to adjust a bonus to an appropriate extent if payment of the
bonus would be unacceptable to standards of reasonableness and fairness.
For the purpose of the present Article, a ‘bonus’ is understood
as the not fixed part of a remuneration in regard of which the entitlement
is made dependent in full or in part on the realization of certain goals
or the occurrence of certain circumstances.
- 7. If shares of a Corporation or depository
receipts issued in collaboration with the Corporation for its shares are
admitted for trade on a regulated market as defined in Article 1.1 of
the Financial Supervision Act and a public take-over bid for the shares
or depositary receipts thereof has been announced as meant in Article
5 of the Decree for Public Take-Over Bids, then the Corporation shall
ascertain for each Director separately whether the shares, depository
receipts or rights to buy or acquire shares in the capital of the Corporation,
granted to him as a remuneration, have increased in value. For this purpose,
their value is assessed:
1° four weeks before the day on which the public bid was announced,
after trading hours;
2° four weeks after the completion of the public bid, after trading
hours;
3° the day that the Director disposes of his shares, depository receipts
or rights, or the day that his appointment ends, after trading hours.
If the value at the date of disposal or of the ending of the appointment
is higher than the value four weeks before the day on which the public
bid is announced, this increase in value shall be deducted from the remuneration
of the Director to a maximum of the increase in value between the value
four weeks after the completion of the public bid and the value four weeks
before the day on which the public bid is announced. In the event that
the Corporation submits a decision as referred to in Article 2:107a, paragraph
1, under (a), (b) or (c), to the General Meeting for approval, the previous
sentences shall apply accordingly, on the understanding that the valuation
then refers to the value which the shares, depository receipts or rights
had four weeks before the day on which this decision is submitted for
approval or, respectively, four weeks after the approval of this decision.
In the event that a Corporation announces a proposal for a merger or division
(split up) as referred to in Article 2:314 paragraph 3 , 2:333e, paragraph
1, or 2:334h, paragraph 3, and the Director disposes of his shares or
his appointment is ended before the merger or division takes effect, the
previous sentences shall apply accordingly, on the understanding that
the valuation then refers to the value that the shares, depository receipts
or rights had four weeks before the day on which the proposal is announced
or, respectively, four weeks after the decision for a merger or division
was taken, or the day prior to the day on which the merger or division
takes effect if that day is sooner.
- 8. The Corporation is entitled to recover
a bonus in full or in part to the extent that payment thereof has been
made on the basis of incorrect information about the realization of the
underlying goals or about the circumstances from which the entitlement
to the bonus was made dependant. The claim can also be filed in the name
of the Corporation by the Supervisory Board, the non-executive Directors
if Article 2:129a has been applied, or by a special representative who
is appointed by the General Meeting for this purpose. Section 2 of Title
4 of Book 6 shall apply accordingly.
Article 2:136 Request for a bankruptcy order for the Open Corporation
Unless the articles of incorporation provide otherwise, the Board of Directors
is not empowered, without an instruction of the General Meeting, to request
for a declaration of bankruptcy to be rendered against the Open Corporation
('naamloze vennootschap').
Article 2:137 Written record of juridical acts performed between the Corporation
and its sole shareholder
- 1. All juridical acts of the Corporation
performed with or towards the holder of all shares in the capital of the
Corporation or with or towards a co-proprietor of a marital community
of property or a community of property of a registered partnership to
which all shares in the capital of the Corporation belong, must be recorded
in writing if the Corporation, when it performs such juridical acts, is
represented by such shareholder or by one of such co-proprietors. For
the purpose of the preceding sentence, shares held by the Corporation
or its subsidiaries shall not be taken into account. If the first sentence
has not been observed, the juridical act is voidable in the sense that
it may be nullified by or on behalf of the Corporation.
- 2. Paragraph 1 shall not apply to juridical
acts which under the stipulated conditions are to be regarded as being
performed in the ordinary course of business of the Corporation.
Article 2:138 Liability of the Directors in the event of a bankruptcy
of the Open Corporation
- 1. In the event of a bankruptcy of the Open
Corporation ('naamloze vennootschap'), each Director is towards
the liquidation estate jointly and severally liable for the amount of
the debts as far as these cannot be recovered after the assets of the
Corporation have been wound up, if the Board of Directors has performed
its duties clearly improperly and it is likely that this is a major cause
of the Corporation's bankruptcy.
- 2. If the Board of Directors has not complied
with its obligations under Article 2:10 or 2:394, then it shall have performed
its duties improperly and it is presumed that this improper performance
of duties is a major cause of the Corporation's bankruptcy. The same applies
if the Corporation is a fully liable partner in a general partnership
(vennootschap onder firma) or a limited partnership ('commanditaire
vennootschap') and the obligations of Article 3:15i have not been
complied with. An insignificant omission (default) is, however, not taken
into account.
- 3. A Director who proves that the improper
performance of duties by the Board of Directors is not attributable to
him and that he has not been negligent in taking measures to avert the
consequences thereof, is not liable.
- 4. The court may reduce the amount for which
the Directors are liable if it regards this amount to be excessive, given
the nature and seriousness of the improper performance of duties by the
Board of Directors, the other causes of the bankruptcy and the way in
which the liquidation estate has been wound up. The court may furthermore
reduce the amount of liability of an individual Director if it regards
this amount to be excessive in view of the time during which that Director
has been in office in the period when the improper performance of duties
took place.
- 5. Where the amount
of the deficit of the liquidation estate is still unknown, the court may
determine, whether or not under application of paragraph 4, which part
of the deficit has to be paid by the Directors personally, and it may
order the preparation of a deficit list in accordance with the provisions
of Title 6 of Book 2 of the Code of Civil Procedure.
- 6. A legal action
(claim) against one or more Directors can be filed only on the basis of
the present Article on the ground of an improper performance of duties
which took place in the period of three years preceding the Corporation's
bankruptcy. The fact that a Director has been discharged from liability,
does not preclude the filing of a legal action (claim) as meant in the
previous sentence.
- 7. For the purpose
of the present Article, a person who has actually determined or co-determined
the policy of the Corporation as if he were a Director, is equated with
a Director. A legal action (claim) as meant in the present Article cannot
be filed against an administrator appointed by the court.
- 8. The present
Article does not affect the possibilities of the liquidator in the bankruptcy
of the Corporation to file a legal action (claim) against a Director on
the basis of the agreement between the Corporation and the Director or
on the basis of Article 2:9.
- 9. Where a Director is liable pursuant to
the present Article, but he is unable to pay the debt which has arisen
as a consequence thereof, the liquidator in the bankruptcy of the Corporation
may, on behalf of the liquidation estate, nullify by means of an extrajudicial
declaration all juridical acts which have been performed by the Director
without any legal obligation to do so, and which have harmed the recovery
rights against his own property, if it is plausible that these juridical
acts have been performed only or mainly with the intention to harm these
recovery rights. Article 3:45, paragraph 4 and 5, applies accordingly.
- 10. Where the liquidation estate of the Corporation
is insufficient to file a legal action (claim) on the basis of the present
Article or of Article 2:9 or to make preliminary inquiries as to the possibilities
to file such actions (claims), the liquidator in the bankruptcy of the
Corporation may request the Minister of Justice to provide him the necessary
funds by way of an advanced payment. The Minister may set rules for the
assessment of the merits of such request and for the limits within which
the request may be granted. The request must contain the grounds on which
it is based, and a reasoned estimate of the cost and extent of the inquiries.
Where the request concerns the start of preliminary inquiries it needs
the approval of the magistrate in bankruptcy ('rechter-commissaris').
Article 2:139 Liability of Directors for giving misleading annual accounts
and figures
If the financial condition of the Corporation has been misrepresented
in the annual accounts or in the interim figures as published by the Corporation
or in the annual report, then the Directors are jointly and severally
liable towards third persons for the damage which they have suffered as
a result thereof. A Director who proves that such misrepresentation is
not attributable to him, is not liable.
Article 2:140 Supervisory Board
- 1. Unless use is made of the possibility
to apply Article 2:129a, the articles of incorporation may specify that
the Corporation shall have a Supervisory Board. The Supervisory Board
shall consist of one or more natural persons.
- 2. The Supervisory Board is responsible for
exercising supervision over the administration (management) and policy
of the Board of Directors and over the general course of events within
the Corporation and its affiliated enterprise. It shall advice the Board
of Directors by word and deed. In the performance of their duties the
Supervisory Directors (members of the Supervisory Board) shall be guided
by the interests of the Corporation and its affiliated enterprise.
- 3. The articles of incorporation may set
additional provisions regarding the duties and powers of the Supervisory
Board and its members.
- 4. The articles of incorporation may provide
that a particular member of the Supervisory Board, designated by name
or function (position), may cast more than one vote. One member of the
Supervisory Board may not cast more votes than the other members of that
Board combined.
- 5. A Supervisory Director does not participate
in the deliberations and decision-making if he has a direct or indirect
personal interest therein that is contrary to the interests meant in paragraph
2 If, as a result, no resolution of the Supervisory Board can be passed,
the resolution shall be passed by the by the General Meeting, unless the
articles of incorporation provide otherwise.
Article 2:141 Duty of the Board of Directors to inform the Supervisory
Board
- 1. The Board of Directors provides the Supervisory
Board in time with the information the Supervisory Board needs for the
performance of its duties.
- 2. At least once a year the Board of Directors
shall inform the Supervisory Board in writing about the basic principles
of the strategic policy, the general and financial risks and the administrative
and audit system of the Corporation.
Article 2:142 Appointment of the members of the Supervisory Board
- 1. The Supervisory Directors (members of
the Supervisory Board) who are not already designated as such in the notarial
deed of incorporation, shall be appointed by the General Meeting. The
articles of incorporation may limit the persons qualified to be appointed
as Supervisory Director by setting requirements which such Supervisory
Directors have to meet. Such requirements may be set aside by a resolution
of the General Meeting passed with two-thirds of the votes cast which
represent more than one-half of the issued share capital.
- 2. Article 2:133, paragraph 1 and 2, shall
apply accordingly, unless the members of the Supervisory Board (Supervisory
Directors) are appointed with due observance of Article 2:158 or use have
been made of the possibility to apply Article 2:164a.
- 3. Where a candidate is recommended or nominated
for an appointment as Supervisory Director, his age and profession are
mentioned, as well as the positions he holds or has held insofar these
are of importance for the fulfilment of his duties as Supervisory Director.
Mentioned as well are the legal persons of which he is already a Supervisory
Director; if there are legal persons amongst them that belong to the same
group, it is sufficient to mention that group. The reasons for a recommendation
and nomination for an appointment or reappointment will be substantiated.
In the event of a reappointment account is taken of the way in which the
candidate has fulfilled his duties as Supervisory Director.
Article 2:142a Persons who cannot be appointed as Supervisory Director*)
- 1. The following persons cannot be appointed
as a Supervisory Director of an Open Corporation (‘naamloze
vennootschap’) which at two consecutive balance sheet dates,
without interruption afterwards at two consecutive balance sheet dates,
has not met at least two of the requirements meant in Article 2:397, paragraph
1 and 2: persons who are a Supervisory Director or a non-executive Director
for five or more legal persons. The chairmanship of the Supervisory Board
and of the Board of Directors shall count twice if the tasks of the Directors
are divided between executive and non-executive Directors.
- 2. For the purpose of the present Article:
a. a person who is a member of a supervisory
body instituted by or pursuant to the articles of incorporation of a legal
person is equated with a Supervisory Director;
b. the appointments for various legal persons
which are connected with each other in a group count as one appointment;
c. the reference to legal persons concerns:
the legal type of an Open Corporation (‘naamloze vennootschap’)
and a Closed Corporation (‘besloten venootschap’)
that at two consecutive balance sheet dates, without interruption afterwards
at two consecutive balance sheet dates, has not met at least two of the
requirements as referred to in Article 2:397, paragraph 1 and 2, and a
Foundation ('stichting') as meant in Article 2:297a, paragraph
1.
d. a non-executive Director is equated with
a Supervisory Director within the meaning of the preamble of paragraph
1, if the tasks of the Directors are divided between executive and non-executive
Directors;
e. a temporary appointment in accordance with
Article 2:249a, paragraph 2, or Article 2:356 under (c), is not regarded
as an appointment;
f. the appointment of a member of the Supervisory
Board or a non-executive Director of a fund as meant in the Order in Council
on the basis of Article 105a of the Pension Act and Article 110a of the
he Obligatory Occupational Pension Schemes Act is counted in conformity
with the standardisation in that Order in Council.
- 3. Where an appointment is null and void
pursuant to the previous paragraphs, this has no effect on the validity
of the decision-taking (passing of resolutions) in which is participated.
*) In force as of 1 January 2013.
Article 2:143 Supervisory Directors appointed by others than the General
Meeting
The articles of incorporation may provide that one or more Supervisory
Directors, yet not more than one-third of all the members of the Supervisory
Board, are to be appointed by others than the General Meeting. Where the
appointment of Supervisory Directors is regulated in accordance with Articles
2:158 and 2:159, the preceding sentence shall not apply.
Article 2:144 Suspension or removal of Supervisory Directors
- 1. A Supervisory Director may be suspended
or removed (dismissed) by the body or person empowered to appoint him,
unless Article 2:161, paragraph 2 and 3, or Article 2:161a is applicable.
- 2. Article 2:134, paragraph 2 and 3, applies
accordingly.
Article 2:144a Point of view of the Works Council on the appointment,
suspension or dismissal of a Supervisory Director
- 1. When the Open Corporation (‘naamloze
vennootschap’) has established a Works Council by virtue of
statutory provisions, the proposal for an appointment, suspension or dismissal
(discharge) of a Supervisory Director shall not be presented to the General
Meeting than after the Works Council has been given the opportunity, timely
prior to the convening date referred to in Article 1:114, to determine
its point of view on it. The Works Council’s point of view is offered
simultaneously with the proposal for an appointment, suspension or dismissal
(discharge) to the General Meeting. The chairman or a member of the Works
Council assigned by him to this end may elucidate the Works Council’s
point of view at the General Meeting. The absence of that point of view
does not affect the decision-making over the proposal for the appointment,
suspension or dismissal (discharge).
- 2. For the purpose of paragraph 1, by a Works
Council is understood also the Works Council of the enterprise of a subsidiary
company, provided that the employees in service of the Open Corporation
(‘naamloze vennootschap’) and the group companies
in majority are working within the Netherlands. When there are more Work
Councils than one, the power meant in the present Article is exerted by
these Councils jointly. Where a Central Works Council has been established
for the relevant enterprise or enterprises, the before meant power belongs
to that Central Works Council.
Article 2:145 Remuneration for Supervisory Directors
The General Meeting may grant a remuneration to the members of the Supervisory
Board.
Article 2:146 [repealed as of 01-01-2013]
Article 2:147 Suspension of a Director by the Supervisory Board
- 1. Unless the articles of incorporation provide
otherwise, the Supervisory Board is empowered to suspend at any time any
Director who has been appointed by the General Meeting.
- 2. The General Meeting may at any time lift
such suspension, unless the power to appoint the Directors is conferred
on the Supervisory Board.
Article 2:148 [repealed on 01-01-1984]
Article 2:149 Jurisdiction of the District Court; liability of Supervisory
Directors
The provisions of Articles 2:9, 2:131 and 2:138 apply accordingly to the
way in which the Supervisory Board has performed its duties.
Article 2:150 Liability of Supervisory Directors for giving misleading
annual accounts
If the financial condition of the Corporation has been misrepresented
in the annual accounts, then the Supervisory Directors are, next and in
addition to the Directors, jointly and severally liable towards third
persons for the damage which they have suffered as a result thereof. A
Supervisory Director who proves that such misrepresentation is not the
result of a failure on his part in the exercise of supervision, is not
liable.
Article 2:151 Performance of managerial acts by others than Directors
- 1. All persons, Supervisory Directors as
well as others, who, pursuant to any provision of the articles of incorporation
or any resolution of the General Meeting, have performed for a certain
period of time or under certain circumstances one or more acts which normally
belong to the duties of a Director, without being a member of the Board
of Directors of the Open Corporation ('naamloze vennootschap'),
are to this extent legally regarded as Directors as far as it concerns
their rights and obligations towards the Corporation and third persons.
- 2. The approval of certain acts which normally
belong to the duties of a Director or the granting of an authorisation
to perform such acts is in itself not regarded as the performance of an
act which normally belongs to the duties of a Director.
Section 2.4.6 The Supervisory Board of a large Open Corporation
Article 2:152 Definitions
In this Section (Section 2.4.6), a ‘dependent company’ means:
a. a legal person to which the Open Corporation
('naamloze vennootschap') or one of its dependant companies has
provided, for its own account, either solely or jointly, at least one-half
of the issued share capital.
b. a commercial partnership of which an enterprise
is registered in the commercial register and in which the Open Corporation
('naamloze vennootschap') or its dependant company participates
as a partner who is fully liable towards the creditors of that commercial
partnership for all debts
Article 2:153 Mandatory registrations at the commercial register; ‘large’-criteria
- 1. An Open Corporation ('naamloze vennootschap')
to which paragraph 2 applies, must, within two months after the date on
which its General Meeting has adopted the annual accounts, lodge a declaration
with the commercial register in which is stated that the Corporation meets
the requirements of paragraph 2 of the present Article. Until Article
2:154, paragraph 3, becomes applicable, the Board of Directors mentions
in all subsequent annual reports the moment on which that declaration
was lodged; if such declaration is removed from the commercial register,
then this will be mentioned in the first annual report that is made after
that removal.
- 2. The obligation to lodge a declaration
as meant in paragraph 1, exists:
a. when the total sum of the issued capital
of the Open Corporation ('naamloze vennootschap') and the reserves,
according to the balance sheet with explanatory notes, amounts up to at
least a level as set for this purpose by Royal Decree [as of 1 October
2004 this level is set at € 16,000,000];
b. when the Open Corporation ('naamloze
vennootschap') or its dependant company is obliged, pursuant to law,
to establish a Works Council, and;
c. when the Open Corporation ('naamloze
vennootschap') and its dependant companies jointly employ on average
at least one hundred employees in the Netherlands.
- 3. The obligation to lodge a declaration
as meant in paragraph 1 does not apply to:
a. a Corporation which itself is a dependant
company of:
- a legal person to which Articles 2:63f up to and including 2:63j, or
Articles 2:158 up to and including 2:161 and 2:164, or Articles 2:268
up to and including 2:271 and 2:274 apply, or;
- a European Company within the meaning of Council Regulation (EC) No
2157/2001 (OJ L 294) of 8 October 2001 on the Statute for a European Company
(SE), which European Company has provided in its article of incorporation
that Articles 2:158, paragraph 1 up to and including paragraph 12, 2:159,
2:161, 2:161a and 2:164 apply accordingly, or;
- a European Cooperative Society within the meaning of Council Regulation
(EC) No 1435/2003 (OJ L 207) of 22 July 2003 on the Statute for a European
Cooperative Society (SCE), which European Cooperative Society has provided
in its article of incorporation that Articles 2:158, paragraph 1 up to
and including paragraph 12, 2:159, 2:161, 2:161a and 2:164 apply accordingly
and that the General Meeting meant in Article 52 of that Regulation has
the power to remove (dismiss) the members of the supervisory organ (body)
by means of a resolution taken with an absolute (normal) majority of the
votes cast which represent at least one-third of the total votes that
may be cast according to the articles of incorporation;
b. a Corporation of which the activities are
restricted exclusively or almost exclusively to the management and financing
of group companies and of its or their participating interests in other
legal persons, provided that the employees in service of the Corporation
and the group companies jointly in majority work outside the Netherlands;
c. a Corporation which exclusively or almost
exclusively provides management and financial services to a Corporation
as meant under (b) or in Article 2:263, paragraph 3, under (b), and to
group companies and legal persons mentioned in these provisions;
d. a Corporation of which at least one-half
of the issued share capital is held as a participating interest, under
a mutual arrangement to cooperate, by two or more legal persons to which
Articles 2:63f up to and including 2:63j, or Articles 2:158 up to and
including 2:161 and 2:164, or Articles 2:268 up to and including 2:271
and 2:274 apply or which are a dependant company of such a legal person.
- 4. Not more than once every two years the
level mentioned in paragraph 2, under (a), shall be increased or decreased
in proportion to the movements of a price index set by Order in Council,
and as of a date set by that Order in Council; it will be rounded to the
nearest one million Euros. The level will not be re-established as long
as the level, calculated on the basis of the price index without application
of any rounding off, differs less than one million Euros from the last
fixed level.
- 5. In paragraph 2, under (a), the part of
the sentence with the words ‘issued share capital of the Open Corporation
('naamloze vennootschap') and the reserves’ means, as far
as it is related to a limited partnership ('commanditaire vennootschap'):
the total of the contribution which is made or still has to be made by
limited partners in dependant companies that are a limited partnership
('commanditaire vennootschap') themselves, as far as this does
not lead to any double counting.
Article 2:154 Mandatory application of the statutory two-tier structure
- 1. Articles 2:158 up to and including 2:164
apply to a Corporation with regard to which a declaration as referred
to in Article 2:153 has been registered at the commercial register for
three continuous years. This period is deemed not to have been interrupted
if a removal of the declaration, which had occurred wrongfully during
that period, has been made undone.
- 2. The removal of such registration on the
ground that the Corporation no longer meets the requirements of Article
2:153, paragraph 2, shall only end the applicability of Articles 2:158
up to and including 2:164 when three years have passed since that removal,
without any obligation for the Corporation to lodge such a declaration
once again in the meantime.
- 3. The Corporation brings its articles of
incorporation in agreement with Articles 2:158 up to and including 2:164,
which must be accomplished at the latest on the date as of which these
Articles become applicable pursuant to paragraph 1.
- 4. In the first General Meeting which is
held after the moment on which the Corporation, to which Articles 2:158
up to and including 2:164 or 2:158 up to and including 2:161 and 2:164
are applicable, has met for the first time the requirements specified
in Article 2:153, paragraph 3, 2:154, paragraph 2, 2:155 or 2:155a, the
Board of Directors shall propose to the General Meeting to regulate in
the articles of incorporation the appointment and removal (dismissal)
of the Supervisory Directors and the duties and powers of the Supervisory
Board without application of Articles 2:158 up to and including 2:164,
respectively, of Articles 2:158 up to and including 2:161 and 2:164, or
it shall propose to the General Meeting to continue the application of
those Articles in full or with the exception of Article 2:162. The resolution
for the adoption of such proposals must be passed with an absolute (normal)
majority of the votes cast. The right of the General Meeting to adopt
a resolution for the implementation of the present Article cannot be limited.
- 5. No later than twelve months after the
resolution referred to in paragraph 4 has passed, the Board of Directors
shall submit to the General Meeting a proposal to amend the articles of
incorporation. If the General Meeting does not adopt a resolution to amend
the articles of incorporation, then the Enterprise Chamber (''Ondernemingskamer'')
of the Court of Appeal of Amsterdam shall adopt the articles of incorporation
instead upon the request of the person who, according to the next paragraph,
is entitled to make such a request. The last two sentences of paragraph
4 shall apply in that event as well.
- 6. A request to adopt the articles of incorporation
may be lodged with the Enterprise Chamber (''Ondernemingskamer'')
by a representative of the Board of Directors or of the Supervisory Board
who has been designated for this purpose, and by a person who is entitled
to make a request as meant in Article 2:114a.
- 7. If necessary, the Enterprise Chamber ('Ondernemingskamer')
shall regulate the consequences of the decision that is taken upon such
request. The clerk of the Enterprise Chamber shall deposit a copy of the
decision of the Enterprise Chamber at the office of the commercial register.
Article 2:155 First exception regarding the applicability of the statutory
two-tier structure
- 1. In derogation from Article 2:154, Article
2:162 does not apply to a Corporation in which a participating interest
of at least one-half of the issued share capital:
a. is held by a legal person of which the majority
of employees work outside the Netherlands, or is held by one or more dependent
companies of such legal person, or;
b. is held, under a mutual agreement to cooperate,
by a number of such legal persons or such dependant companies, or;
c. is held, under a mutual agreement to cooperate,
by one or more of such legal persons and one or more legal persons to
which Article 2:153, paragraph 3, under (a), or Article 2:263, paragraph
3, under (a), applies, or to which Articles 2:63f up to and including
2:63j, or Articles 2:158 up to and including 2:161 and 2:164 or Articles
2:268 up to and including 2:271 and 2:274 apply.
- 2. The exception under the preceding paragraph
shall not apply if the majority of the employees of the Corporation, together
with those in service of the legal person or legal persons, work outside
the Netherlands.
- 3. For the purposes of the present Article
employees in service of a legal person shall include the employees in
service of group companies.
Article 2:155a Second exception regarding the applicability of the statutory
two-tier structure
- 1. In derogation from Article 2:154, Article
2:162 does not apply to a Corporation in which:
a. one natural person has provided or has caused
the provision of the entire issued share capital, or in which two or more
natural persons, under a mutual agreement to cooperate, have provided
or caused the provision of the entire issued share capital;
b. one foundation, one association or one legal
person as referred to in Article 2:1 has provided or has caused the provision,
for its own account, of the entire issued share capital, or in which two
or more of the before mentioned legal persons, under a mutual agreement
to cooperate, have provided or caused the provision, for their own account,
of the entire issued share capital.
- 2. With a natural person as meant in paragraph
1 is be equated his spouse or registered partner. Equated with such a
natural person are also his blood relatives in the direct line, provided
that they have entered into a mutual agreement to cooperate with each
other within six months after the death of the before meant natural person..
Article 2:156 Dispensation on the statutory
two-tier structure
The Minister of Justice may, after having consulted the Social and Economic
Council (‘Sociaal-Economische Raad’ or ‘SER’),
grant an Open Corporation ('naamloze vennootschap'’), upon
its request, relief from one or more of the obligations meant in Articles
2:158 up to and including 2:164. When such a relief is granted, conditions
and other obligations may be attached to it. Such a relief may be amended
or revoked by the Minister of Justice.
Article 2:157 Voluntary application of the statutory two-tier structure
- 1. An Open Corporation ('naamloze vennootschap')
to which Article 2:154 does not apply, may in its articles of incorporation
specify that Articles 2:158 up to and including 2:164 shall apply accordingly
to the appointment and removal (dismissal) of its Supervisory Directors
and to the responsibilities and powers of its Supervisory Board, provided
that the Corporation or one or more of its dependant companies have established
a Works Council to which the provisions of the Works Council Act apply.
It may, in that event, exclude the application of Article 2:162. A provision
in the articles of incorporation as meant in the present paragraph loses
its validity as soon as the Works Council no longer exists or the Works
Council Act no longer applies to that Works Council.
- 2. A Corporation to which Article 2:155 or
2:155a applies, may regulate the appointment and removal (dismissal) of
its Directors in accordance with Article 2:162.
Article 2:158 Appointment of Supervisory Directors
- 1. The Corporation must have a Supervisory
Board.
- 2. The Supervisory Board consists of at least
three members [this must all be natural persons]. Where its number of
members is less than three, the Supervisory Board shall, without delay,
take measures to complement the number of members.
- 3. The Supervisory Board shall prepare a
profile (characterization) of its size and composition, taking into account
the nature of the Corporation, its activities and the desired expertise
and background of the Supervisory Directors. When this profile is made,
and afterwards each time when it is changed, it will be discussed by the
Supervisory Board at the General Meeting and with the Works Council.
- 4. Except in a situation as provided for
by paragraph 9, the Supervisory Directors will be appointed by the General
Meeting upon a nomination of the Supervisory Board, as far as the appointment
has not already taken place in the notarial deed of incorporation or before
the present Article became applicable to the Corporation. The Supervisory
Board shall inform the General Meeting and the Works Council simultaneously
of the nominated candidates. The nomination must be reasoned. Without
prejudice to the provisions of Article 2:160, the articles of incorporation
may not limit the circle of persons who may be appointed as Supervisory
Directors.
The nomination shall not be presented to the General Meeting than after
the Works Council has been given the opportunity, timely prior to the
convening date referred to in Article 1:114, to determine its point of
view on the matter. The chairman or a member of the Works Council assigned
by him to this end may elucidate the Works Council’s point of view
at the General Meeting. The absence of that point of view does not affect
the decision-making over the proposal for the appointment.
- 5. The General Meeting and the Works Council
may recommend certain persons to the Supervisory Board to be nominated
as Supervisory Director. The Supervisory Board shall inform them in time
when, and also for what reason and according to which profile a vacancy
in the Supervisory Board has to be filled. Where the right of recommendation,
meant in paragraph 6, applies to the to be fulfilled vacancy, the Supervisory
Board shall inform the General Meeting and Works Council thereof as well.
- 6. The Supervisory Board must, with regard
to one-third of the number of its members, nominate a person recommended
by the Works Council, unless the Supervisory Board objects to the recommendation
on the basis of the expectation that the recommended person is unsuitable
to perform the duties of a Supervisory Director or that the Supervisory
Board will not be properly constituted if an appointment is made in accordance
with the recommendation. If the number of members of the Supervisory Board
is not divisible by three, then the next lower number that is divisible
by three is taken into account in determining the number of members to
which this granted right of recommendation applies.
- 7. If the Supervisory Board objects to a
recommendation, it shall inform the Works Council thereof, mentioning
as well the reasons for its objection. The Supervisory Board shall immediately
consult together with the Works Council in order to try to reach an agreement
on the nomination. If the Supervisory Board finds that it is not possible
to reach an agreement on the matter, a representative designated for this
purpose by the Supervisory Board shall request the Enterprise Chamber
('Ondernemingskamer') of the Court of Appeal of Amsterdam to
pronounce the objection well founded (valid). Such a request may not be
lodged sooner than four weeks after the start of the consultations with
the Works Council. When the Enterprise Chamber ('Ondernemingskamer')
pronounces that the objection is unfounded (invalid), the Supervisory
Board shall place the recommended person on the list of persons nominated
as Supervisory Director. When the Enterprise Chamber ('Ondernemingskamer')
pronounces that the objection is well founded (valid), then the Works
Council may recommend a new person in accordance with paragraph 6.
- 8. The Enterprise Chamber ('Ondernemingskamer')
shall ensure that the Works Council is summoned to appear in court. No
appeal or other legal remedy (action) is available against the decision
of the Enterprise Chamber. The Enterprise Chamber cannot condemn a party
to pay the costs of proceedings.
- 9. A nomination of the Supervisory Board
may be rejected by the General Meeting by means of a resolution passed
with an absolute (normal) majority of the votes cast, which represent
at least one-third of the issued share capital. If the shareholders withhold
their support to a nominated candidate with an absolute (normal) majority
of the votes cast, but this majority does not represent at least one-third
of the issued share capital, then a new General Meeting may be convened
at which the nomination can be rejected by an absolute (normal) majority
of the votes cast. In such event the Supervisory Board must make a new
nomination. Paragraphs 5 up to and including 8 shall apply as well. If
the General Meeting does not appoint the nominated person and neither
decides to reject the nomination, then the Supervisory Board may appoint
the nominated person as Supervisory Director.
- 10. The power granted to the General Meeting
under paragraph 5, may be delegated (transferred) by the General Meeting,
for a duration of each time at the most two consecutive years, to a committee
of shareholders of which it selects the members; in that case, the Supervisory
Board shall inform this committee of shareholders as prescribed in paragraph
5. The General Meeting may at all times undo this delegation (transfer)
of power.
- 11. For the purpose of the present Article,
by a Works Council is understood the Works Council of the enterprise of
the Corporation or of the enterprise of a dependant company. When there
are more Works Councils than one, the power granted under the present
Article will be exercised separately; in the event of a nomination as
referred to in paragraph 6, the power granted under the present paragraph
will be exercised by these Works Councils jointly. Where a Central Works
Council has been established for the enterprise or enterprises, the power
granted under the present Article to the Works Council shall belong to
the Central Works Council.
- 12. The articles of incorporation may derogate
from the provisions of paragraph 2, 4 up to and including 7 and 9, except
that it is not possible to derogate from the first two sentences of paragraph
9. A resolution to amend the articles of incorporation requires the prior
approval of the Supervisory Board and the Works Council.
Article 2:159 Appointment of Supervisory Directors when Supervisory Directors
are absent
- 1. When there are no Supervisory Directors
at all, for another reason than the one meant in Article 2:161a, the General
Meeting will appoint the Supervisory Directors.
- 2. The Works Council may in such event recommend
persons to the General Meeting to be appointed as Supervisory Director.
The one who convenes the General Meeting, shall notify the Works Council
in time that an appointment of Supervisory Directors will be the subject
of considerations at the meeting, with mention whether the appointment
of a Supervisory Director takes place in accordance with the right of
recommendation of the Works Council on the basis of Article 2:158, paragraph
6.
- 3. Paragraph 6, 7, 8, 10 and 11 of the previous
Article shall apply accordingly.
Article 2:160 Incompatibility of positions
The position of Supervisory Director cannot be held by:
a. persons employed by the Corporation;
b. persons employed by a dependent company
of the Corporation;
c. the Directors of and the persons employed
by an employees’ organization (labour union) which is regularly
involved at determining the conditions of employment of the persons referred
to under (a) and (b).
Article 2:161 Resignation, dismissal and suspension of Supervisory Directors
- 1. A Supervisory Director shall resign at
the latest on the day on which he has been a Supervisory Director for
four years since his last appointment. This period may be extended in
the articles of incorporation up until the day of the first General Meeting
after the expiration of the four-years period or up until the day of the
first General Meeting after the day on which the present Article became
applicable to the Corporation.
- 2. The Enterprise Chamber ('Ondernemingskamer')
of the Amsterdam Court of Appeal may, upon request, dismiss a Supervisory
Director for neglecting his duties or for other compelling reasons, or
because of a severe change of circumstances as a result of which it reasonably
cannot be expected of the Corporation to accept that the Supervisory Director
keeps his position. The request may be lodged by the Corporation, represented
for this purpose by its Supervisory Board, as well as by a representative
of the General Meeting or the Works Council, meant in Article 2:158, paragraph
11, who has been designated for this purpose. Article 2:158, paragraph
10 and 11, apply accordingly.
- 3. A Supervisory Director may be suspended
by the Supervisory Board. The suspension expires by operation of law if
the Corporation has not lodged a request as meant in paragraph 2 with
the Enterprise Chamber ('Ondernemingskamer') within one month
after the suspension took effect.
Article 2:161a Loss of confidence in the Supervisory Board
- 1. The General Meeting may express that it
has lost its confidence in the Supervisory Board by means of a resolution
passed with an absolute (normal) majority of the votes cast, which represent
at least one-third of the issued share capital. Such a resolution must
be reasoned. Such a resolution cannot be passed in respect of Supervisory
Directors who have been appointed by the Enterprise Chamber ('Ondernemingskamer')
in conformity with paragraph 3.
- 2. A resolution as referred to in paragraph
1 shall not be taken until the Board of Directors has informed the Works
Council of the proposal for such resolution and of the reasons for proposing
it. The Works Council must have been informed thereof at least 30 days
prior to the General Meeting at which the proposal will be discussed.
Where the Works Council has set a position statement about the proposal,
the Board of Directors will inform the Supervisory Board and the General
Meeting thereof. The Works Council may have its position statement explained
at the General Meeting.
- 3. A resolution as referred to in paragraph
1, shall immediately result in the removal (dismissal) of all the members
of the Supervisory Board. In such event, the Board of Directors shall
immediately request the Enterprise Chamber ('Ondernemingskamer')
of the Court of Appeal of Amsterdam to appoint temporarily one or more
Supervisory Directors. The Enterprise Chamber ('Ondernemingskamer')
shall regulate the consequences of such appointment.
- 4. The Supervisory Board shall encourage
that a new Supervisory Board will be constituted with due observance of
Article 2:158 within a period set for this purpose by the Enterprise Chamber
('Ondernemingskamer').
Article 2:162 Appointment of the members of the Board of Directors
The Supervisory Board appoints the Directors of the Corporation; this
power cannot be restricted by any binding nomination of candidates. The
Supervisory Board shall inform the General Meeting of an intended appointment
of a Director of the Corporation; it shall not remove (dismiss) a Director
until the General Meeting has been heard on the intended removal (dismissal).
Article 2:158, paragraph 11, shall apply accordingly.
Article 2:163 [repealed on 01-10- 2004]
Article 2:164 Resolutions that need the approval of the Supervisory Board
- 1. The approval of the Supervisory Board
is required for resolutions of the Board of Directors on:
a. the issuance and acquisition of shares and
debentures (debt certificates) by the Corporation and of debentures (debts
certificates) issued by of debentures (debt certificates) by a limited
partnership ('commanditaire vennootschap') or general partnership
('vennootschap onder firma') of which the legal person is a fully liable
partner;
b. the collaboration in the issuance of depository
receipts for shares in the Corporation;
c. the application for the admission of shares,
debt certificates or depository receipts as meant under (a) and (b) to
a regulated market or multilateral trading facility as referred to 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 on the application for a withdrawal
of such admission;
d. the start or termination by the Corporation
or its dependent company of a long-lasting alliance (collaboration) with
another legal person or commercial partnership, or the start or termination
by the Corporation or its dependent company as fully liable partner in
a limited partnership ('commanditaire vennootschap') or general
partnership ('vennootschap onder firma'), always only when such
alliance (collaboration) or its termination is of fundamental importance
for the Corporation;
e. the acquisition of a participating interest
with a value of at least one-quarter of the Corporation’s nominal
amount of the issued share capital plus its reserves, to be determined
according to the Corporation’s balance sheet with explanatory notes,
by the Corporation itself or by a dependant company, in the capital of
another Corporation ('vennootschap'), and on any significant
increase or decrease of such participating interest;
f. investments which require an amount equal
to at least one-fourth of the issued share capital plus reserves of the
Corporation, to be determined according to its balance sheet with explanatory
notes;
g. a proposal*) to amend the articles of incorporation;
h. a proposal*) to dissolve the Corporation;
i. a declaration of bankruptcy (‘faillissement’)
or an application for an official moratorium on payment (‘surséance
van betaling’) for the Corporation itself;
j. the termination of the employment agreements
of a substantial number of employees of the Corporation or a dependent
company, to be effectuated either simultaneously or within a short period
of time;
k. a significant change in the conditions of
employment of a substantial number of employees of the Corporation or
a dependent company.
l. a proposal to reduce the issued share capital
of the Corporation.
- 2. The absence of the Supervisory Board’s
approval on a resolution as referred to in paragraph 1, does not affect
the authority of representation of the Board of Directors or the Directors.
*) One has to notice that the Board
of Directors itself cannot itself decide to amend the articles of incorporation
or to dissolve the Corporation, since this is done by means of a resolution
of the General Meeting.
Article 2:164a Application of non-executive and executive Directors*)
- 1. It is allowed to apply Article 2:129a
instead of and in derogation from Article 2:158, paragraph 1. What is
provided in Article 2:158 paragraph 2 up to and including 12, 2:159, 2:160,
2:161 and 2:161a on the Supervisory Board, respectively, on the Supervisory
Directors shall then apply accordingly to the non-executive Directors
of the Open Corporation (‘naamloze vennootschap’).
- 2. Where Article 2:129a is applied, the non-executive
Directors of the Corporation shall appoint the executive Directors of
the Corporation; this power cannot be restricted by a binding recommendation.
Article 2:162, second and third sentence, shall apply accordingly.
- 3. Resolutions within the meaning of Article
2:164 of the Board of Directors are excluded from the application of Article
2:129, paragraph 3.
- 4. Where Article 2:129a is applied, resolutions
within the meaning of Article 2:164, paragraph 1, shall require the approval
of the majority of the non-executive Directors of the Corporation. The
absence of such approval does not affect the power of representation of
the Board of Directors or Directors.
*) In force as of 01-01-2013
Article 2:165 [repealed on 01-04-1987]
Section 2.4.7 Dissolution of an Open Corporation*)
*) This subject is regulated in general
for all legal persons in Articles 2:19 - 2:24.
Article 2:166 [repealed on 01-01-1992]
Article 2:167 [repealed on 01-01-1992]
Article 2:168 [repealed on 01-01-1992]
Article 2:169 [repealed on 01-01-1992]
Article 2:170 [repealed on 01-01-1992]
Article 2:171 [repealed on 01-01-1992]
Article 2:172 [repealed on 01-01-1992]
Article 2:173 [repealed on 01-01-1992]
Article 2: 174 [repealed on 01-01-1992]
Section 2.4.8 Appeal [repealed
01-01-2013]
Article 174a [repealed 01-01--2013]
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