Prevent or Resolve Shareholder Conflicts in Your BV: Focus on Statutory Exit Arrangements

Conflicts between shareholders can weigh heavily on a company. Thanks to the Companies and Associations Code (WVV), shareholders can make clear agreements in advance about withdrawal or exclusion through the articles of association or a shareholders’ agreement. This avoids long, expensive, and public court procedures.

Withdrawal or Exclusion? Two Options in Case of Conflict

The WVV provides for out-of-court exit options:

• Withdrawal: A shareholder unilaterally leaves the company in exchange for a separation share.
• Exclusion: The company, through the general meeting, terminates the shareholding of a partner.

Both arrangements must be explicitly provided for in the articles of association and can be fully customized.

Advantages of a Statutory Arrangement

• Faster and more efficient than court procedures
• Lower costs
• Discretion and peace within the company
• Predictability and customization
• Control over the valuation of the shares

What Are the Legal Requirements?

A withdrawal at the expense of the company’s assets is only possible if the following conditions are met:

• The withdrawal must be included in the articles of association;
• Compliance with the distribution tests (the balance sheet and liquidity test);
• Reporting obligation of the management body;
• Mandatory recording of the withdrawal in an authentic deed;
• Updating the share register.

Additionally, there is the freedom to modulate the right of withdrawal. For example, one can think of:

• A mandatory notice period;
• A maximum number of withdrawing shareholders per financial year;
• Budgeting of the separation share.

On the other hand, an exclusion at the expense of the company’s assets is only possible if the following conditions are met:

• Exclusive authority of the general meeting;
• Legitimate reason;
• Obligation to inform;
• Obligation to motivate the proposal and the subsequent decision to exclude;
• Right to be heard for the excluded shareholder.

Here too, additional matters can be modulated in the articles of association:

• Tightening/relaxation of the exclusion ground;
• Amount of the separation share;
• Possibility of a limitative enumeration.

Recommendations

👉 Include the dispute resolution at the expense of the company’s assets in a shareholders’ agreement.

It is important that the shareholders’ agreement only binds the parties (shareholders) who are party to the shareholders’ agreement. Additionally, it must not conflict with the legal provisions of the WVV or the articles of association of the company involved. The company itself is not bound by the shareholders’ agreement. It is advisable to anticipate possible conflicting compensation mechanisms when drafting the shareholders’ agreement. This way, you ensure that the impact on the company will be minimal.

👉 Explicitly refer to the shareholders’ agreement in the articles of association.

This way, you ensure that the company is aware of what has been included in the shareholders’ agreement. The shareholders’ agreement is in principle confidential. It does not need to be published. By referring to the shareholders’ agreement in the articles of association, you prevent the company from being unaware that the dispute resolution at the expense of the company’s assets has been worked out in a shareholders’ agreement.

👉 Establish concrete budgeting rules regarding the determination of the separation share.

The concrete budgeting rules determine the final separation share. Also explicitly describe the relevant grounds for withdrawal and/or exclusion. Additionally, in the case of the exclusion of a shareholder, a special majority can be stipulated.

👉 Provide “Good / Bad Leaver Clauses” in the shareholders’ agreement.

These types of clauses are common in shareholders’ agreements where the exit of operational shareholders is anticipated. For example, if a “bad leaver” clause is included, on the basis of which the shareholder is excluded, this shareholder does not receive the price they would normally have received if the exclusion ground had been qualified as a “good leaver”. Note: What is the big difference with exclusion at the expense of the company’s assets? In general, it is the other shareholders (and not the company itself) who take over the shares of the departing shareholder (and therefore also have to pay for them).

In Conclusion

The standard arrangement in the WVV rarely offers sufficient protection or clarity. A well-thought-out statutory arrangement, whether or not supplemented by a shareholders’ agreement, is crucial to keep future conflicts manageable. This way, you avoid legal uncertainty and protect the continuity of your company.

Need Advice?

PKF BOFIDI Legal is happy to help you draft or revise your articles of association or shareholders’ agreement.

Ensure legal peace. Start today. Do not hesitate to contact us.

This article was written by Pieter-Jan Van Mierlo and Alexander Meesen.