Exit by a shareholder

Recently the Gelderland Court determined that a shareholder is permitted to exit. The other shareholder will be obliged to take over the share The portion of registered capital of a private or public limited company
» Meer over share shares. The purchase price will be determined by an expert. Lawyer Lennard Noordzij explains.

Parties

Mecus is a project developer. Helisa operates in the contracting sector. In 2012 Mecus and Helisa started to collaborate in the new enterprise X, which would focus on the operation and development of immovable property. Mecus would generate turnover and Helisa would contribute its contracting knowledge. Mecus holds 33% of the shares in X, Helisa 67%. At the beginning they were both directors under the articles of association A document, drawn up when a Dutch company or legal person is set up, and which regulates the operations of the company and defines its purpose.
» Meer over articles of association Articles of Association. Later on only Helisa was this still.

Dispute

In the last years the financial situation of X deteriorated, Loss was suffered on various projects. At some time parties agreed that they would each go their separate ways. In May 2020 the shareholders Mecus and Helisa received the draft annual accounts over 2019 from the accountant. Parties disagreed about the contents of these annual accounts. Afterwards, Mecus offered its shares to Helisa at a price equal to 33% of the equity of X. Helisa rejected this offer. Subsequently, Mecus asked Helisa, on the basis of the articles of association, to convene an extraordinary general meeting of shareholders to discuss, inter alia, the annual accounts over 2019. Helisa did not do this.

Exit claim

In these proceedings Mecus claimed that Helisa will be obliged to take over its shares in X for a price to be determined by an expert. The law provides that a shareholder whose rights or interests have been harmed to such an extent by conduct of one or more co-shareholders that the continuation of its share The portion of registered capital of a private or public limited company
» Meer over share share ownership can no longer reasonably be required of it, can institute a claim for exit against those co-shareholders. A claim for exit can also be instituted against the company on the basis of the conduct of one or more co-shareholders or of the company itself. The claim for exit can only be instituted if it has also become evident that the defendant shareholder is not prepared to voluntarily take over the shares for a realistic price.

Only a disturbed relationship is in general likewise insufficient to obtain the granting of the exit claim. All kinds of conduct of the co-shareholder(s) or the company can result in the granting of the claim for exit. It does not thereby necessarily have to concern misconduct of the co-shareholders and also not conduct displayed in the capacity of a shareholder. Any conduct that results in harming the rights or interests of the other shareholder can be taken into consideration. The circumstances of the case are the decisive factor. The principle for the valuation by an expert is that the expert to be appointed must establish the value of the shares on the basis of the value in the course of trade.

Judgment of the court

The court found in favour of Mecus. The reason for this is that Helisa did not provide cooperation to convening an extraordinary general meeting of shareholders, while it was obliged to do so on the basis of the articles of association. Also, the annual accounts over 2019 were never discussed and adopted in a general meeting of shareholders. This while it is evident from the Commercial Register that the annual accounts were indeed adopted. Therefore, Helisa had the annual accounts filed as if these were adopted annual accounts, while that was not the case. This means, according to the court, that Mecus’ interest has been damaged to such an extent that it cannot reasonably be required to remain a shareholder in X. An expert will now value the shares and also assess whether there has been a decrease in value since the first of September 2019. The court will subsequently assess whether the decrease in value will be at the expense of Helisa. The court will also still assess whether Mecus has the right to a fair increase of the purchase price, considering the acts on the part of Helisa.