Dutch
Civil Code
Book 2 Legal Persons
Title 2.5 Closed Corporations (private limited companies)
Section 2.5.4 The General Meeting
Article 2:217 Powers of the General Meeting
- 1. Within the
limits set by law and the articles of incorporation, any power not assigned
to the Board of Directors or another body of the Corporation shall belong
to the General Meeting.
- 2. The Board
of Directors and the Supervisory Board shall provide the General Meeting
with all requested information, unless a substantial interest of the Corporation
opposes to this.
Article 2:218 At least one General Meeting or decision ex Article 2:238 each financial year
During each financial year at least one General Meeting shall be held
or at least once there shall be decided (pass a resolution) in accordance
with Article 2:238, paragraph 1 or 3.
Article 2:219 Convening the General Meeting
The Board of Directors and the Supervisory Board are authorized to convene
a General Meeting; the articles of incorporation may grant this power
also to others.
Article 2:220 Right of shareholders to request for the convening of a
General Meeting
- 1. One or more shareholders who solely or
jointly represent at least one hundredth part of the issued share capital,
may request the Board of Directors and the Supervisory Board in writing
to convene a General Meeting; in the request the subjects to be discussed
at the General Meeting must be mentioned accurately. The Board of Directors
and the Supervisory Board – which are in this case equally empowered
to do so – take the necessary measures to ensure that the General
Meeting can be held within four weeks after such request was made to one
of them, unless a substantial interest of the Closed Corporation (‘besloten
vennootschap’) opposes to such General Meeting.
In the articles of incorporation the required part of the capital may
be lowered and the period within which the General Meeting must be held
may be shortened.
- 2. For the purpose of the present Article,
holders of shares are equated with others who have the right to attend
the General Meeting.
- 3. Unless the articles of incorporation provide
otherwise, the requirement of a written request as referred to in paragraph
1 shall be met as well when the request is made by electronic means of
communication.
Article 2:221 Formal requirements the obtain the authorization of the
court
- 1. After the Closed Corporation ('besloten
vennootschap') has been heard or summoned to appear in court, the
provisional relief judge of the District Court shall grant the requested
authorization meant in the previous Article if the applicants have shown
summarily (briefly) that the requirements of that Article are met, and
that they have a reasonable interest that the General Meeting is to be held. The
provisional relief judge shall deny the request if no important interest
of the Corporation opposes to such a General Meeting to be held. Where the provisional
relief judge of the District Court awards the requested authorization, he shall determine the formal procedure
and the period to convene the General Meeting. He may also appoint someone
who will be charged to lead the General Meeting.
- 2. Where a General Meeting is convened pursuant
to paragraph 1, the convening notice for such General Meeting must mention that
it is given by virtue of a court order. A convening notice given in this
way, is legally valid, even if, afterwards, it appears that the authorization
had been granted wrongly.
- 3. No appeal
or other remedy (action) is available against a court order as meant in
the present Article, except for an appeal in cassation to the Supreme
Court in the interest of the law.
Article 2:222 Power of an individual shareholder to convene a General
Meeting
If the persons who are empowered under Article 2:219 to convene a General
Meeting, have failed to hold a General Meeting as required pursuant to
Article 2:218 or the articles of incorporation, then any shareholder may
be authorized by the provisional relief judge of the District Court to
convene such a meeting himself. Article 2:220, paragraph 2, and Article
2:221 shall apply accordingly.
Article 2:223 Formalities for a convening notice
- 1. The convening notice for a General Meeting
shall be given by means of convening letters sent to the addresses of
the shareholders and of others who are entitled to attend the General
Meeting, as listed in the register of shareholders meant in Article 2:194.
- 2. Unless the articles of incorporation provide
otherwise, the convening notice may be given also, provided that this
is done with the consent of the shareholder or of the other person entitled
to attend the General Meeting, by means of a legible and reproducible
convening notice sent by electronic means of communication to the address
disclosed for this purpose to the Corporation by the involved shareholder
or other person.
Article 2:224 Content of a convening notice
- 1. The convening notice for a General Meeting
shall mention the subjects to be considered (discussed) at the meeting.
- 2. No legally valid resolutions can be passed
with regard to subjects which have not been mentioned in the convening
notice as subjects for deliberation at the meeting, send with due observance
of the period set for the convening of the General Meeting, unless all
persons with a right to attend the General Meeting have consented with
decision-taking on these subjects and the Directors and Supervisory Directors
have been granted the opportunity prior to that decision-taking to give
their advise on these subjects.
- 3. Announcements and other communications
which pursuant to law or the articles of incorporations have to be addressed
to the General Meeting, may be made by their inclusion in the convening
notice itself or, in situations where this is relevant, in the document
that has been deposited for inspection at the office of the Corporation,
provided that such deposit for inspection is mentioned in the convening notice.
Article 2:224a Request of shareholders to consider a specific subject
at the General Meeting
- 1. Where one or more holders of shares, who
solely or jointly represent at least one hundredth part of the issued
share capital, have requested in writing the consideration (discussion)
of a specific subject at the General Meeting, this subject must be included
in the convening notice or the similar convening publication (announcement),
provided that their request has been received no later than the thirtieth
day prior to the General Meeting and no substantial interest of the Corporation
opposes to this. The articles of incorporation may reduce the required
part of the issued share capital and may shorten the period for making
the request.
- 2. For the purpose of the present Article,
holders of shares are equated with holders of depository receipts for
shares issued in collaboration with the Corporation.
- 3. Unless the articles of incorporation provide
otherwise, the requirement in paragraph 1 that the request must be made
in writing will be met also if the request is made and recorded electronically.
Article 2:225 Minimum period for a convening notice
Without prejudice to what has been provided in Article 2:221, paragraph
1, third sentence, the notice for the convening of the General Meeting
may be given no later than on the eight day prior to that Meeting. When
this period was shorter or when no convening notice has been given at
all, no legally valid resolutions (decisions) can be passed at the General
Meeting, unless all persons entitled to attend that General Meeting have
approved that the decision-taking shall take place (that resolutions shall
pass), and the Directors and Supervisory Directors have been given the
opportunity prior to the passing of resolutions (decision-taking) to give
their advice.
Article 2:226 Place where a General Meeting is to be held
- 1. The General Meeting is held at a place
mentioned for this purpose in the articles of incorporation or, otherwise,
in the municipality where the Closed Corporation (‘besloten
vennootschap’) has its domicile (seat). The place mentioned
in the articles of incorporation may be a place outside the Netherlands.
- 2. Where a place outside the Netherlands
is allocated after the formation (incorporation) of the Closed Corporation
(‘besloten vennootschap’), the resolution proposed
to this end in order to amend the articles of incorporation can be passed
only under a majority of votes cast at a General Meeting where the entire
issued share capital is represented, and only to the extent that all persons
entitled to attend the General Meeting have consented with the amendment
of the articles of incorporation.
- 3. A General Meeting may be held in another
place than where it should have been held, provided that all persons entitled
to attend that General Meeting have consented with the place where the
General Meeting is held, and the Directors and Supervisory Directors have
been given the opportunity prior to the decision-taking to give their
advice.
Article 2:227 Right to attend the General Meeting
- 1. For the purpose of the present Title (Title
2.5), the right to attend the General Meeting shall mean the right to
be present at the General Meeting and to speak there, either in person
or through a representative acting by means of a written procuration (proxy).
- 2. The right to attend the General Meeting
belongs to shareholders, holders of a depository receipt issued for a
share to which the right to attend the General Meeting is attached, shareholders
who because of a usufruct or pledge have no voting right and usufructuaries
and pledgees who have a voting right. Usufructuaries and pledgees who
do not have a voting right, have the right to attend the General Meeting
if the articles of incorporation provide so and nothing differently has
been stipulated at the establishment or transfer of the usufruct or pledge.
The articles of incorporation may specify that an attachment or withdrawal
of the right to attend the General Meeting to or from depository receipts
issued for shares takes place by a body of the Closed Corporation (‘besloten
vennootschap’) assigned for this purpose in the articles of
incorporation.
- 3. Each shareholder is entitled, either in
person or through a representative acting by means of a written procuration
(proxy), to exercise the voting right that he has at the General Meeting.
- 4. An arrangement in the articles of incorporation
in which the right to attend the General Meeting is granted to holders
of depository receipts issued for shares can be amended only with the
consent of the involved holders of these depository receipts, unless such
right of amendment has been reserved explicitly in the articles of incorporation
when the right to attend the General Meeting was granted. The previous
sentence applies accordingly to usufructuaries and pledgees.
- 5. The articles of incorporation may limit
the right of the persons entitled to attend the General Meeting to have
themselves represented there. However, the right of persons entitled to
attend the General Meeting to have themselves represented there by an
advocate (solicitor registered at the Bar), a notary, a prospective (junior)
notary, a registered accountant (chartered auditor) or an accountant administrative
consultant, cannot be excluded.
- 6. The articles of incorporation may specify
that the right to attend the General Meeting is postponed as long as a
person entitled to attend the General Meeting fails to comply with an
obligation imposed on him by law or the articles of incorporation. The
articles of incorporation may specify that, in order to attend the General
Meeting, it is required that the person entitled to attend the General
Meeting reports his intention to appear at the meeting to the Board of
Directors of the Closed Corporation (‘besloten vennootschap’).
In such event, the convening notice for the General Meeting shall mention
the final day on which this intention must be reported. That day cannot
be set earlier than on the third day prior to the General Meeting.
- 7. The Directors and Supervisory Directors
have, in that capacity, an advisory vote at the General Meeting.
- 8. The requirement of a written procuration
(proxy) shall be met also when such procuration (proxy) is granted and
recorded electronically.
Article 2:227a Attending the General Meeting through electronic means
of communication
- 1. The articles of incorporation may provide
that any shareholder is entitled to use, either in person or through a
representative acting by means of a written procuration (proxy), electronic
means of communication to participate in the General Meeting, to address
the General Meeting and to exercise his voting right.
- 2. For the purpose of paragraph 1, it is
necessary that, by electronic means of communication, the shareholder
can be identified and that he is able to obtain direct knowledge of the
proceedings at the meeting and to exercise his voting right. The articles
of incorporation may provide that it is necessary also that the shareholder
is able to participate through electronic means of communication in the
deliberations.
- 3. Requirements may be imposed by or pursuant
to the articles of incorporation for the use of electronic means of communication.
If these requirements are imposed pursuant to the articles of incorporation,
then they must be announced in the convening notice for the General Meeting.
- 4. Paragraph
1 up to and including 3 apply accordingly to the rights of any holder
of a depository receipt for a share issued in collaboration with the Corporation.
- 5. The requirement that a procuration (proxy)
must be granted in writing will be met as well when such procuration (proxy)
is granted and recorded electronically.
Article 2:227b Exercising voting rights by electronic means prior to the
General Meeting
The articles of incorporation may provide that votes which are cast by
electronic means of communication prior to General Meeting, yet not earlier
than thirty days prior to that General Meeting, are equated with votes
cast during (at) the General Meeting itself.
Article 2:228 Right to vote at the General Meeting; number of votes to
be cast
- 1. Only shareholders have a right to vote.
Each shareholder has at least one vote. The articles of incorporation
may provide that a shareholder is not entitled to exercise his voting
rights as long as he fails to comply with a requirement (obligation) imposed
on him by law or the articles of incorporation.
- 2. If the share capital is divided into shares
of an equal nominal amount, each shareholder may cast as many votes as
he holds shares.
- 3. If the share capital is divided into shares
of an unequal nominal amount, the number of votes that may be cast by
each shareholder is equal to the total nominal amount of his shares divided
by the nominal amount of the smallest share issued by the Corporation;
parts of votes are neglected.
- 4. It is possible to derogate in the articles
of incorporation from paragraph 2 and 3. Such an arrangement in the articles
of incorporation shall apply to all resolutions of the General Meeting.
A resolution for the amendment of the articles of incorporation concerning
a change in the voting right, may be passed only with a majority of votes
in a General Meeting in which the entire issued share capital is represented.
- 5. The articles of incorporation may specify,
in derogation from paragraph 1 up to and including 4, that no voting right
in the General Meeting is attached to shares. Such an arrangement can
be made only with regard to all shares of a certain type (class) or indication
of which all shareholders have given their consent to such arrangement
or of which, prior to the issuance of these shares, the articles of incorporation
already provided that no voting right in the General Meeting is attached
to these shares. The shares shall be mentioned in the articles of incorporation
as shares without voting right. It is not possible to specify on the basis
of Article 2:216, paragraph 7, in respect of shares without voting right
that those shares provide no right to participate in the distribution
of profits or reserves of the Corporation.
- 6. At the General Meeting no vote may be
cast on a share that belongs to the Corporation or one of its subsidiary companies;
no vote may be cast either on a share for which a depository receipt is
issued for a share in the capital of the Corporation, which depository
receipt is held by the Corporation or one of its subsidiary companies. However, a limited
proprietor entitled to a usufruct or a pledge on a share in the capital
of the Corporation, which share belongs to the Corporation or one of
its subsidiary companies, is not excluded from exercising his voting
rights, if the usufruct or pledge was established prior to the moment
on which the encumbered share was acquired by the Corporation or its subsidiary company*).
The Corporation or a subsidiary with a usufruct or pledge on a share in
the capital of the Corporation, cannot exercise any voting rights in respect
thereof.
*) See Articles 2:197 and 2:198 for the right to vote
of a usufructuary, respectively, a pledgee.
Article 2:229 [repealed on 01-01-1992]
Article 2:230 Majority of votes; quorum
- 1. Where the law or the articles of incorporation
do not require a larger majority, a resolution shall be passes at a General
Meeting by an absolute majority of the votes cast. If the votes are equally
divided at an election of persons, a drawing of lots shall decide the
voting; if the votes are equally divided at another voting, the proposal
shall be rejected; all insofar as the articles of incorporation do not
provide otherwise. This solution may also indicate that a third person
is entrusted to take a decision.
- 2. Unless the law or the articles of incorporation
provide otherwise, the validity of a resolution of a General Meeting shall
not depend on the question which part of the share capital is represented
at the General Meeting.
- 3. If the articles of incorporation specify
that the validity of a resolution of the General Meeting depends on the
question whether a specific part of the share capital is represented at
the General Meeting, and such part was not represented at the General
Meeting, then a new General Meeting may be convened at which the resolution
may be passed irrespective of the part of the share capital represented
at that General Meeting, unless the articles of incorporation provide
otherwise. The convening notice for the new General Meeting must mention
that a resolution may be passed at that General Meeting irrespective of
the part of the share capital that is represented at that General Meeting,
and why such a resolution may be passed at that new General Meeting.
- 4. The Board of Directors of the Corporation
takes note of the resolutions passed at a General Meeting. The notes are
deposited at the Corporation's office for inspection by the shareholders
and the holders of depository receipts issued for shares in collaboration
with the Corporation. Upon request, a copy or extract of these notices
shall be provided to each of these shareholders and holders of depository
receipts against payment of at the most the cost price.
Article 2:231 Amendment of the articles of incorporation
- 1. The General Meeting has the power to amend
the articles of incorporation; as far as the possibility to amend the
articles of incorporation has been excluded in the articles of incorporation,
the General Meeting is nevertheless empowered to amend the articles of
incorporation by unanimous votes cast at a General Meeting where the entire
issued share capital is represented.
- 2. A provision in the articles of incorporation
restricting the possibility to amend one or more other provisions of the
articles of incorporation, can be amended only by the General Meeting
with due observance of the same restriction.
- 3. A provision in the articles of incorporation
excluding the possibility to amend one or more other provisions of the
articles of incorporation, can be amended only by unanimous votes cast
at a General Meeting where the entire issued share capital is represented.
- 4. A resolution for an amendment of the articles
of incorporation that specifically harms any right of the holders of
shares of a certain type (class) or indication, requires, unless the power
to make an amendment was explicitly reserved at the moment on which such
right was granted, an approving resolution of this group of shareholders,
without prejudice to the requirement of consent where this results from
law.
Article 2:231a Resolution to convert an amount specified in guilders into
Euros
- 1. A resolution of the General Meeting to
increase the nominal amount of the shares and the authorized share capital
as meant in Article 2:178a, shall be passed by an absolute majority of
votes. A resolution of the General Meeting to reduce the nominal amount
of the shares and the authorized share capital shall be passed 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 General Meeting. When there
are different types (classes) of shares, then a valid resolution of the
General Meeting to increase or reduce the nominal amount of the shares
and the authorized share 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 conversion of amounts into Euros.
- 2. For the purpose of the previous paragraph,
shares of a particular type (class) shall include shares with a differentiated
nominal amount (value).
Article 2:232 Amendment of the articles of incorporation and the protection
of third persons
The amendment of a provision in the articles of incorporation, which provision
grants a right to a person on another basis than in his capacity as shareholder
of the Corporation, cannot cause any prejudice to the rights of that person
if he has not given his consent to the amendment, unless the possibility
to amend this provision has been reserved explicitly when the right was
granted to him.
Article 2:233 Announcement of a proposal to amend the articles of incorporation
- 1. When a proposal to amend the articles
of incorporation is made to the General Meeting, this must be mentioned
always in the convening notice for that General Meeting.
- 2. The persons who have convened a General
Meeting at which a proposal for the amendment of the articles of incorporation
will be considered, must at the same time deposit a copy of that proposal
at the office of the Corporation for inspection by the shareholders; the
proposal, which must contain the to be considered amendment to the letter,
must remain at the Corporation’s office until the end of the General
Meeting. Article 2:224 paragraph 2 applies accordingly.
- 3. From the day on which the proposal is
deposited up to the end of the involved General Meeting, the shareholders
must have the opportunity to obtain a copy of the proposal as described
in the previous paragraph. These copies will be provided free of charge.
- 4. What is provided in the present Article
in respect of shareholders applies accordingly to holders of depository
receipts issued for shares in collaboration with the Corporation.
Article 2:234 Amendment must be included in a notarial deed
- 1. A notarial deed must be drawn up that
contains the amendment of the articles of incorporation, under the penalty
of nullity of the amendment. The notarial deed is executed in the Dutch
language.
- 2. That notarial deed may consist either
of a notarial report of the General Meeting at which the resolution for
the amendment of the articles of incorporation is passed, or of a later
executed notarial deed. The Board of Directors may cooperate in the execution
of that notarial deed, even without having been authorized to do so by
the General Meeting.
- 3. If the authorized share capital has been
amended, then the notarial deed must specify which part thereof has been
issued.
Article 2:235 [repealed on 01-07-2011]
Article 2:236 Amended articles of incorporation are to be deposited at
the commercial register
The Board of Directors must deposit a certified copy of the amendment
and of the amended articles of incorporation at the office of the commercial
register.
Article 2:237 Amendment of the articles of incorporation during bankruptcy
During the bankruptcy of a Closed Corporation ('besloten vennootschap')
the articles of incorporation of that Corporation can be amended only
by the General Meeting with the consent of the bankruptcy liquidator ('curator').
Article 2:238 Passing resolutions outside a General Meeting
- 1. Adoption of resolutions (decision making)
by the shareholders may occur in another manner than at a meeting. Unless
the articles of incorporation provide otherwise, votes may be cast as
well by electronic means of communication.
- 2. In the event that a resolution is passed
(a decision is taken) outside a meeting, the votes are cast in writing.
The requirement that the votes must be cast in writing shall be met also
if the resolution (decision) is recorded in writing or electronically,
with mention of the manner in which each shareholder has voted. Unless
the articles of incorporation provide otherwise, votes may be cast as
well by electronic means of communication. The Directors and Supervisory
Directors shall be given the opportunity prior to the passing of resolutions
(decision-taking) to give their advice.
|