Parties who jointly operate in a private limited company (BV) often decide not to regulate their mutual relationship solely through the BV's articles of association, but also to enter into a shareholders' agreement to formalise their relationship.
What if an agreement in the shareholders' agreement conflicts with the BV's articles of association or a statutory provision?
The court recently ruled on the following case.
In a shareholders' agreement it has been determined that a decision to dismiss a director by the general meeting (of shareholders) can only be taken by unanimous vote of all shareholders.
With regard to the dismissal of a director, the law However (among other things) the articles of association cannot prescribe a majority exceeding two-thirds of the votes cast for the dismissal of a director.
In this case, three of the four shareholders (75% of the votes) decided to dismiss a director. The director in question contested his dismissal, citing the statutory rule.
The preliminary relief judge initially ruled that the statutory dismissal provision does not prevent the shareholders from being bound by the agreement they made in the shareholders' agreement. Therefore, the dismissal resolution cannot be passed with only 75% of the votes.
The Amsterdam Court of Appeal, however, overturned the judgment of the preliminary relief judge. The Court ruled that the interest of the private limited company in this case makes application of the dismissal clause in the shareholders' agreement unacceptable in all fairness and reasonableness.
Conclusion
The principle of reasonableness and fairness affects the ability of shareholders to rely on an agreement they have made.
The principle of reasonableness and fairness is laid down in law (Article 2:8 BW):
- A legal entity and those involved in its organisation must conduct themselves towards each other as such in accordance with what is required by reasonableness and fairness.
- Any rule applicable between them shall not apply to the extent that this would be unacceptable in the given circumstances according to standards of reasonableness and fairness.
